August 21, 2017

August 21, 2017

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Massachusetts Appeals Court Reaffirms Local Control Over Nonconforming Uses

Zoning amendments that expand the grounds upon which nonconforming status may be lost apply to structures and uses otherwise protected under Mass. General Laws 40A, § 6. The Massachusetts Appeals Court in Plainville Asphalt Corp. v. Town of Plainville, 83 Mass. App. Ct. 710 (2013), makes plain that the manner of discontinuing the protections of § 6 is not forever determined by the terms of the local zoning regulation in effect on the date that either the nonconforming use began or the nonconforming structure was built.

In 1965, Plainville Asphalt’s predecessor manufactured bituminous concrete at a facility in Plainville. A 1967 zoning amendment prohibited this use, but the manufacturing operation continued to function as a nonconforming use. The zoning bylaw then in effect also provided that the existing use was “`grandfathered’ as a nonconforming use, subject to loss only by abandonment.” However, a zoning amendment in 1983 provided that nonconforming uses could be extinguished by either abandonment (which includes an intent to shutter or close a business) or mere nonuse. When Plainville Asphalt sold certain assets and liabilities in 2002, it entered into a noncompete agreement that resulted in the closure of the plant from 2003 to 2009. Plainville subsequently claimed that the plant could not reopen for manufacturing operations because it had lost its status as a nonconforming use due to nonuse. The company filed suit. The Land Court granted summary judgment in favor of Town and the Appeals Court affirmed.

Reviewing the judgment, the Appeals Court rejected Plainville Asphalt’s “strained and incorrect” argument that the grandfathering of the manufacturing use was governed by the terms of the “abandonment” provision in place at the time the use began in the 1960’s or when the use became nonconforming in 1967. Instead, the Court opined that the Town was free to rely upon either the “abandonment” or “nonuse” approach adopted in 1983’s zoning amendment as a means of discontinuing the use. The Court held that because the third paragraph of section 6 of chapter 40A “gives cities and towns the explicit authority to regulate nonconforming uses and structures which are unused (for the nonconforming purpose) for two years or more, the plain language of the statute… compels the conclusion that the 1983 bylaw amendment applies here.” Notably, both parties agreed that the minimum two year period in § 6 for establishing abandonment or nonuse superseded the Town’s 1983 bylaw requiring only one year of nonuse before extinguishment.

© 2017 Beveridge & Diamond PC


About this Author

Brian Levey, Land Use, Real Estate, Attorney, Beveridge Diamond, Law Firm

Mr. Levey, a Principal with Beveridge and Diamond, P.C., has more than twenty years of project development experience before permit-granting authorities and in court. He is Co-Chair of the Firm’s Land Use Practice Group.

Mr. Levey's real estate development and land use and zoning law experience focuses on the representation of builders, developers, and property owners seeking all types of permits and approvals — special permits, site plan approvals, variances, and comprehensive permits — before dozens of boards throughout ...