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HomeMy WebLinkAbout0810 WAKEBY ROAD (2) Fr-C,/2J) -C-- Commonwealth of Massachusetts County of Barnstable The Superior Court CIVIL DOCKET# BACV1998-00087 Gifford Brothers Sand & Gravel Inc. vs Zoning Board of Appeals Town of Barnstable JUDGMENT AFTER RESCRIPT This action was appealed to the Appeals Court for the Commonwealth, the issues having been duly heard and the Appeals Court having duly issued a rescript modifying and affirming the Judgment of the Superior Court, It is DECLARED: U that the plaintiff is not entitled to the relief sought; and It is ORDERED AND ADJUDGED: (1) that the decision of the Board of Appeals, Town of Barnstable, dated January 27, 1998, sustaining the Cease and Desist order of the Building Commissioner, Town of Barnstable, dated October 22, 1997, is affirmed, and (2) that the Clerk of this Court within thirty days after entry of this judgment shall send copies thereof to the Board of Appeals, Building Inspector, and the Clerk of the town of Barnstable. Dated at Barnstable, Massachusetts this 30th day of December, 2002. Scott W. Nickerson, Clerk of the Courts Assistant Clerk Mru®copy,Attest: lark 1 cvdjudresc.wpd 312220 judrescr bearseli L I I DiMatteo Peter From: McKean, Thomas Sent: Tuesday, December 11, 2001 9:03 AM To: DiMatteo Peter Subject: Horsley and Witten , Inc. I called Joe Longo at Horsley and Witten Inc. (508 833-6600) this morning. An estimation of costs to study the groundwater quality downgradient from the Keys Gravel Pit Operation is as follows: Drill Wells $2,000 Screening with Photoionization Detector $ 700 Sampling (6 mos.) $1,800 Engineer Field Work $2,000 Summary Report $1,000 TOTAL $7,500 1 ' ��- �� - �/ '��� -- 4 -- -- �i- -- ---- - I, __ -- - -- -- �i - - s...e... _4 .....a. � • _�- _ �` � + � ' ,� r r i J -. � - a kM E a / 2 dow ,�I'M i Ifl I II I I I �N COMMONWEALTH OF MASSACHUSETTS APPEALS COURT CLERK'S OFFICE • 1500 NEW COURT HOUSE B OSTON, M ASSACHUSETTS 02108 (617) 725-8106 October 28 , 2002 Ruth J. Weil, Esquire Town of Barnstable 367 Main Street, New Town Hall CC1 3 0 Hyannis, MA 02601 RE : No. 2000-P-0701 GIFFORD BROTHERS SAND & GRAVEL VS . BARNSTABLE ZONING BD. OF APPEALS TOWN OF NOTICE OF DOCKET ENTRY Please take note that on October 28 , 2002, the following entry was made on the docket. of the above-referenced case : • Decision: Rule 1 :28' (GS KN DO) . The judgment of the Superior Court is modified by striking the clause in paragraph 1 that begins with "except" and ends with 111956 . " As so modified, the judgment is affirmed. " *Notice . (See image on file . ) Very truly yours, The Clerk' s Office Dated: October 28 , 2002 To : Gregory M . Downs, Esquire James W. Stathopoulos, Esquire Ruth J. Weil, Esquire • .a • Commonwealth of Massachusetts Appeals Court for the Commonwealth At Boston, In the case ,no. 00-P-701 GIFFORD BROTHERS SAND AND GRAVEL, INC. Vs. ZONING BOARD OF APPEALS OF BARNSTABLE. Pending in the Superior Court for the County of Barnstable Ordered, that the following entry be made in the docket : The judgment of the • Superior Court is modified by striking the clause in paragraph 1. ' that begins with "except" and ends with 111956 . " As so modified, the judgment is affirmed. L 2'if By the Court, The original of the within rescript will issue in due course,pursuant to M.R.A.F.'[3 A!`E--,LSCOURT Clerk • Date October 28, 2001 • COMMONWEALTH OF MASSACHUSETTS APPEALS COURT 00-P-701 GIFFORD BROTHERS SAND AND GRAVEL, INC. vs . ZONING BOARD OF APPEALS OF BARNSTABLE. MEMORANDUM AND ORDER PURSUANT TO RULE 1 : 28 Gifford Brothers Sand and Gravel Inc . (Gifford) appeals from a judgment of the .Barnstable Superior Court holding that Gifford must limit its excavation and fill-processing use of the property on Wakeby Road to the five acre area in such use as of 1956 . The zoning board of appeals of Barnstable (board) has filed a cross • appeal arguing that this activity was not a legal preexisting nonconforming use under the zoning by-law enacted in 1929, and therefore no such continued activity is proper. We conclude that the Superior Court erred in applying the 1956 zoning by-law rather than the applicable 1929 zoning by-law. Background. Gifford is the current owner of the property at issue, an irregularly sha ped ed 16 . 6 acre lot located at 810 Wakeby Road in Marstons Mills, a village of the town of Barnstable . The town enacted its first comprehensive zoning by-law in 1929, at which time the property was zoned for residential use. The second zoning by-law at issue, enacted in 1956, added a business • district but the ,Gifford property continued to be zoned only for residential purposes . G In spite of being zoned for only residential use, the property has been used for various purposes over the years . When Lorenzo Gifford acquired the property in 1945, the property was t woodland, neither in commercial nor residential use. 'By 1947, the Giffords had begun commercially removing sand and gravel from the property. Until 1995, the sand and gravel operation occupied only a small portion of the property, at most five acres, and the . Gifford' s primary business on the property was the repair and salvage of automobiles, for which a use variance was secured from the board in 1964 . 1 (A. 405, 426, 658) . In 1996, a contractor for the town of Barnstable contracted with Gifford to use fill from the Wakeby Road property to cap the Barnstable landfill . Before Gifford began harvesting this • gravel, the Barnstable building commissioner advised the town. council that the gravel operation was a lawful preexisting non- conforming use.2 Thereafter, mining and excavation activities were increased and the buffer of trees between the excavation and the boundary of the property was stripped away, exposing the 1 In addition to the metal salvage operation, portions of the property along the western border were frequently leased to local businesses for the storage of heavy equipment, tools, trailer bodies, and boats . 2 "Please be advised that the Gifford (g] ravel pit on Wakeby Road is a pre-existing non-conforming use, and as such is 'lawful from -a zoning perspective. In arriving at this conclusion, we talked to several people with early roots in the area; and interviewed the owner. No information was received to the contrary. " (A. 674) . • 2 • gravel pit to the residential neighborhood. Once the contract to provide the fill was completed, Gifford• began' to use the property in connection with a landscaping and loam processing business . - . The premises quickly became a repository for brush stumps, r concrete and demolition debris . After receiving several complaints about the constant noise, dust and fumes resulting from the various operations conducted on the property, the Barnstable building commissioner issued a cease and desist order directing Gifford to stop using the property as a gravel pit and to stop processing fill and depositing fill, brush and clippings . Gifford appealed the order to the board, which held appropriate hearings and then upheld the building • commissioner. Thereafter, Gifford sought relief from the order in Barnstable Superior Court . The Superior Court concluded that the 1956 zoning by-law was applicable rather than• the 1929 by-law, which it found to run afoul of the zoning enabling act of that era' as illegal spot zoning, and so held that Gifford has the right to mine that portion of the site appropriated to gravel mining as of 1956, the southernmost five acres of the site. ' The zoning enabling act applicable at that time was inserted by St . 1920, c . 601, codified as G. L. c . 40, §§ 25-30B, since repealed by St . 1954 , c . 368 , § 1, and now appearing in Chapter 40A; see also Opinion of the Justices to the House of . Representatives, 234 Mass . 597 (1920) . 3 Both parties have appealed this order.' The board argues • that the 1929 zoning .by-law. is not spot zoning and was: .the correct by-law to apply. Under this. theory, excavation and mining activities on the property were never legal because no zoning relief for such use was ever issued, nor were such activities taking place on the property in 1929 when the by-law took effect which would have given them status to continue as a legal preexisting nonconforming use. Spot . zoning. Spot zoning occurs where a local legislative body grants a zoning classification to a piece of land that singles out that particular parcel "for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner of • that lot, " Rando v. North Attleborough, 44 Mass .. App. Ct . 603 , 606 (1998) , quoting from Whittemore v. Buildinq Inspector of Falmouth, 313 Mass . 248, 249 (1943) , or when the zoning classification, without a rational planning objective, makes the parcel subject to more restrictive regulation than that of neighboring property. National Amusements, inc . v. Boston, 29 Mass . App. Ct . 305, 312 (1990) . "Such zoning constitutes a denial of equal protection under the law guaranteed by the State I � 4 The board has also appealed other rulings which .are dependant upon the application of the 1956 zoning by-law. As we conclude that the 1929 by-law was applicable, we do not reach. these arguments . • A and Federal Constitutions, and violates the uniformity • requirement of c . 40A, § 4 . Rando, supra at 606 (.citations and internal quotation marks omitted) . The 1929 by-law was a complete by-law enacted pursuant to the then applicable zoning enabling act . - The 1929 by-law applied to the entire town and was an effort to preserve the residential nature of the town while at the same time complying with the requirement that existing structures and uses be given legal nonconforming status . See St . 1920, c . . 601, 7 . The 1929 by- law provides that all property .in Barnstable is in a residential zoning district unless a permit is afforded otherwise . This type of zoning is permissible . See Gage v. Egremont, 409 Mass . 345, • 348 (1991) (general laws do "not direct that every municipality adopting a zoning by-law have more than one zoning district or that such a by-law permit business uses as of right in some part of the municipality" ) . The 1929 zoning by-law is not spot zoning and should have been applied by the court below. When the 1929 by-law is applied, all commercial . activity, with the exception of automobile salvage, is prohibited on the property. The property was never subject to any special "existing use" status conferred by the applicable zoning enabling act, because in 1929 the property was_ woodland; nor was zoning relief ever issued for commercial use other than the salvage of automobiles . Without zoning relief the property may not be, and 5 i never legally was, used as a gravel pit or as a place to • commercially process, fill, or for depositing fill, brush or clippings . The only permitted uses on the property are single-family residential use and automobile salvage, consistent with the terms of the previously issued use variance and special permits . Having so found, we need not address the remaining issues brought on appeal . The judgment of the Superior Court is modified by striking the clause in paragraph 1 that begins with "except" and. ends with 111956 . " As so modified, the judgment is affirmed. So ordered. By the Court (Gelinas, • Kantrowitz & Doerfer, Clerk Entered: October 28, 2002 6 1 F t. � . Io.6S•02•. i Article 10. i The Town of Barnstable is hereby divided into districts, subject to the provisions hereinafter stated, to be known respectively as non-residenc districts and residence districts as follows: Non-residence Districts subject to change as hereinafter. provided, shall comprise all landalwhich at the time this By-law becomes effective are used for any business or industry other than farming, truck gardening, the growing of trees, shrubs, vines or plants, and the raising of animals, Residence Districts, subject to change as hereinafter provided,. shall comprise all areas not included in • Non-residence Districts. Subject to the .provisions hereinafter stated, no parcel of land lying in any Residence District and not at the time this ... _ . By-law .becomes effective devoted to any business or industry, other than those hereinbefore- specified shall hereafter be used for any business or industry, or for any purpose except for residence or purposes .of buildings, appurtenant thereto, or for churches, schools and similar non-commercial or non-industrial buildings, and no permit shall be issued for the erection, alteration or coversion of .any building for or to any such prohibited use upon any such .parcel, except as hereinafter provided. A permit may be issued for the erection in any residence district of a building for the purpose of any business or industry or for the alteration or conversion of a building in such district for or t_o such purposes, if the Selectmen shall after public hearing so order , provided that no such permit shall be grante except upon written application and after a public healing of parties interested and consideration of their evidence by the Selectmen; notice of said hearing being given by publication of the time and place thereof in a local newspaper not less than two weeks before said hearing, the expense of such publication to be borne by the petitioner.' After such hearing the J Selectmen shall render a decision in writing, stating the decision and the reasons therefor and file the decision with the Town Clerk and send a copy thereof''to the applicant . I hereby certify that the foregoing by-law .was adopted by the Town of Barnstable on June 14th, 1929, and approved by Joseph E. Warner, Attorney 0eneral , on July 2 , 1929-. Attest: Clarence It. Chase, Town Clerk.