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March 9, 2012

Case Report
Lisa C. Goodheart, Dylan Sanders

Appeals court affirms judgment for waste facility against town’s challenge

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The Massachusetts Appeals Court today affirmed a December 2010 trial court victory by Sugarman Rogers partners Lisa Goodheart and Dylan Sanders for the owners of a central Massachusetts construction and demolition (“C&D”) waste recycling facility, vindicating the facility’s special permit and compliance with the local zoning law in the face of the Town of Ware’s attempts to shut down the business and tear down the facility.

In Ware Real Estate, LLC v. Town of Ware, the Appeals Court rejected four separate challenges asserted by the town, which appealed the judgment Sugarman Rogers obtained for the facility after a four-day trial.

The court began by rejecting the town’s claim that the trial court lacked jurisdiction to hear the case in the first place because the town had merely threatened, but not actually brought, enforcement proceedings against the facility. The town had sent e-mails to the facility’s owners calling into question the facility’s compliance with local zoning, but the town nevertheless took the position that the facility could not obtain judicial relief unless and until the town decided to commence enforcement proceedings through the local zoning board of appeals. The Appeals Court rejected this argument and affirmed the trial court’s finding that the facility could go straight to the superior court to obtain the declaratory and injunctive relief it ultimately won.

Second, the Appeals Court rejected the town’s argument that the facility lacked a special permit because, when the town planning board first voted on the issue, only three members of the five-member planning board voted for the permit, and at least four votes were required. The Appeals Court affirmed the trial court’s finding that a subsequent vote of five members to approve the facility’s site plan was a reaffirmation, or re-approval, of the special permit, since approval of the special permit application was a necessary part of the process of approving the site plan.

Third, the Appeals Court rejected the town’s argument that the facility lacked sufficient frontage. The town argued that because the facility property was bisected by railroad line running on a 90-foot-wide strip of land owned by the Commonwealth, the property was actually two lots rather than one, and the “landlocked parcel” where the facility was built lacked frontage. The Appeals Court, however, ruled that the property met the definition of a single lot for purposes of the local bylaw, and therefore had frontage even though the railroad property ran between the facility building and the nearest public way. Furthermore, the Appeals Court observed, the town had granted the original permits and approvals to the facility knowing of the presence of the railroad.

Finally, the Appeals Court rejected the town’s assertion that the C&D waste recycling facility was not a permitted use merely because the facility made use of grinders and shredders to compact or “reduce” the volume of waste before shipment, where the bylaw prohibited the “reduction” of waste on a commercial basis in the pertinent zoning district. The Appeals Court said that the bylaw’s prohibition on the “reduction” of waste did not bar “the mere physical compaction of materials, particularly where it is only incidental to the primary use of the property” as a recycling facility.

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