Petition for Writ of Certiorari — Gifford Brothers Brothers and Gravel, Inc. v. Zoning Board of Appeals of Barnstable (No. 05-1533)

— ER sl Nt a en tne ctarenitemn pansies in

ee —— - — ———————————————— = “

om Supreme Cain, US.

fA) OS 15 33May 22 2006

No. 05- OFFICE OF THE CLERK

IN THE a

Supreme Court of the United States

GIFFORD BROTHERS SAND & GRAVEL, INC.,

Petitioner,

v.

TOWN OF BARNSTABLE, MASSACHUSETTS,

ZONING BOARD OF APPEALS,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

- SUPREME JUDICIAL COURT OF THE

COMMONWEALTH OF MASSACHUSETTS

PETITION FOR A WRIT OF CERTIORARI

suinseesegphnusnasnesnsteieterientoeepeigunienedteneatipemenammapunciaianeanioniaimenatentenesanemmnemaimdidiadmediannammemanmmetammmemenmmenmemnae eee

SA, PORN NR AN EEN STR: Sh ESE ABROEET Se ho ARR RI TCT a RN

JAMES W. STATHOPOULOS

43 Kingston Street

Boston, Massachusetts 02111

(617) 423.0001

Attorney for Petitioner

201331 g

COUNSEL PRESS

(800) 274-3321 » (800) 359-6859

i

QUESTIONS PRESENTED

1. Is the Respondent’s municipal zoning ordinance

unconstitutional and/or spot zoning?

2. Was there a pre-existing non-conforming use and is

the failure of the Massachusetts appellate Courts to remand

for consideration of newly discovered evidence which is

compelling, disinterested and dispositive on that issue an

obvious violation of due process?

3. Are cease and desist orders prohibiting any and all

commercial uses at said premises an inverse condemnation

of the premises, especially where the premises are thereby

rendered completely useless for residential purposes?

a eget _ .

satay 43 torasg MOO. ee ee wr Cine renornays eee ——

ii

STATEMENT PURSUANT TO RULE 29.6

Petitioner, Gifford Brothers Sand & Gravel, Inc., has no

parent corporation and no publicly held company owns 10%

or more of its stock.

iti

TABLE OF CONTENTS

QUESTION PRESENTED

STATEMENT PURSUANT TO RULE 29.6

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT

REASONS FOR GRANTING THE PETITION ...

CONCLUSION

iv

TABLE OF CITED AUTHORITIES

Cases:

First Lutheran Church v. Los Angeles County,

482 U.S. 304 (1987)

107 S. Ct. 2378

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992)

Penn Central Transp. Co. v. New York City,

438 U.S. 104 (1978)

Renton v. Playtime Theatres, Inc..,

475 U.S. 41 (1986)

106 S.Ct. 925

Statutes:

28 U.S.C. § 1257

Constitutional Provisions:

U.S. Const. Amend. V

U.S. Const. Amend. XIV

v

TABLE OF APPENDICES

Appendix A — Memorandum And Order Of The

Commonwealth Of Massachusetts, Appeals Court

Entered October 28, 2002

Appendix B — Findings Of Fact, Rulings Of Law

And Order For Judgment Of The Commonwealth

Of Massachusetts Dated June 25, 1999

Appendix C — Order Of The Supreme Judicial Court

For The Commonwealth Of Massachusetts

Denying Further Appellate Review Dated

December 21, 2005

Appendix D — Affidavit Of Francis Rennie Dated

September 7, 2005

Appendix E — Affidavit Of Robert H. Ellis Dated

December 29, 2003

1

Petitioner Gifford Brothers Sand & Gravel, Inc. respectfully

petitions for a writ of certiorari to review the judgment of the

Supreme Judicial Court of the Commonwealth of Massachusetts

in this case.

OPINIONS BELOW

The FINDINGS OF FACTS, RULINGS OF LAW AND

ORDER FOR JUDGMENT of the trial court, the Barnstable

County Superior Court of the Commonwealth of Massachusetts

are reproduced in the Appendix at App. 7a. The

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

of the Appeals Court of the Commonwealth of Massachusetts

are reproduced in the Appendix at App. la. The notice of

DENIAL OF APPLICATION FOR FURTHER APPELLATE

REVIEW by the Supreme Judicial Court of the Commonwealth

of Massachusetts is reproduced in the Appendix at App. 26a.

JURISDICTION

The decision of the trial court was entered June 25, 1999,

Both parties appealed. The Appeals Court of the Commonwealth

of Massachusetts entered a decision on October 28, 2002.

Petitioner filed a Petition for Rehearing with the Appeals Court

which denied said petition. The Supreme Judicial Court of the

Commonwealth of Massachusetts denied Further Appellate

Review on December 21, 2005. An application to Extend the

time to file a Petition for a Writ of Certiorari was timely filed

and an extension was granted until May 20, 2006. The

jurisdiction of this Court is invoked under 28 U.S.C. § 1257.

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

1. The Fifth Amendment to the United States

Constitution provides that “No person shall . . . be deprived

of life, liberty, or property, without due process of law; nor

shall private property be taken for public use without just

compensation”.

2. The Fourteenth Amendment to the United States

Constitution, §1, provides that “No state shall make or

enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any

state deprive any person of life, liberty, or property, without

due process of law, nor deny to any person within its

jurisdiction the equal protection of the laws”.

STATEMENT

Petitioner seeks review of the ruling of the Supreme

Judicial Court of the Commonwealth of Massachusetts

which, by denying relief, adopted the position of the Appeals

Court which had 1) overturned the trial Court’s decision that

preexisting nonconforming commercial uses of Petitioner’s

premises predated zoning and 2) essentially inversely

condemned the premises by precluding all commercial

activity, the only viable uses for the last eighty-five years,

thereon.

The petition arises out of a dispute between the parties

as to the commercial uses of a parcel of land (hereinafter,

“premises”). For decades, Petitioner and its predecessors in

title mined sand and gravel therefrom and also utilized the

premises as a junkyard and contractor’s yard. In the early

3

1960’s, Petitio: * » predecessors in title had received permitting

for the construcuun of an automotive recycling garage on an

adjacent parcel where said predecessors also had a residence in

which they were domiciled. This adjacent parcel is totally

unrelated to Petitioner’s title to the premises which are the

subject of this action. Respondent however, contends that the

permitting of the adjacent parcel has extinguished the rights to

all commercial uses in the premises. Since the commercial uses

at the premises began around the turn of the century (1900),

same have continued uninterrupted until the present day.

Respondent Town, after determining in the mid-1990’s that

the Petitioner’s gravel pit use was valid (Paragraph 18 of the

trial Court’s decision at App. 12a), purchased from Petitioner

and removed tens of thousands of tons of sand and gravel from

Petitioner’s premises for the purpose of covering Respondent’s

landfill. Thereafter, Respondent issued a Cease and Desist Order

claiming that the Petitioner’s sand and gravel pit was an illegal

use. Respondent was upheld by the Respondent’s own ZBA,

and Petitioner brought suit claiming valid pre-existing

commercial uses and inverse condemnation.

This case was originally tried before Justice Gary Nickerson

in the Barnstable Superior Court. Justice Nickerson found the

Respondent’s 1929 zoning bylaw (Footnote 2, loc. cit. at App.

11a) to be unconstitutional and hence invalid. In Paragraph 4 at

App. 15a), he ruled that the road which provided frontage to

the premise “was nothing more than a cartpath in the woods”

and that the premises “would have been residential inasmuch

as there was no commercial use of the property until the gravel

pit came into being in the late 1940’s”. He held Respondent’s

1956 zoning bylaw to be applicable and found valid certain

nonconforming uses maintained on the premises by Petitioner.

The Massachusetts Appeals Court determined (Memorandum

4

and Order pursuant to Rule 1:28 at App. 5a) Respondent’s 1929

municipal zoning ordinance to be valid and held Petitioner’s

commercial use of the property post 1929 to be non-conforming

and illegal. Because the premises had been used so commercially

intensively (sand, gravel, demolition, automotive recycling, etc.)

for such a long period, Petitioner contended that residential

options were impossible (the status quo being a large sandpit/

junkyard with thousand of tons of buried stumps, vehicles, tires

and building demolition) and also contended that the

modifications of the Appeals Court have effectively precluded

all use of any kind. During the time period from the trial of this

matter through the time of oral argument at the Appeals Court,

Petitioner’s previous counsel (the original trial counsel) had

suffered a debilitating mental breakdown, serious enough to

preclude his from the practice of law and in fact all employment

of any kind. Subsequent to withdrawal of said former counsel,

Petitioner and current counsel performed an extensive search

for evidence to substantiate the position that commercial uses

at the premises had been ongoing prior to the time of

Respondent’s 1929 zoning ordinance. Two disinterested

witnesses (one of which had been a municipal health department

official for approximately thirty years) were located, and their

independent Affidavits (at App. 27a and 29a) set forth in great

detail their observations and memories of the commercial

activities ongoing at the premises in the early to mid-1920’s.

The original Affidavits were provided to the Supreme Judicial

Court of the Commonwealth of Massachusetts by appending

same to the Petitioner’s Application for Further Appellate

Review. The Supreme Judicial Court denied Petitioner’s

application for Further Appellate Review.

5

REASONS FOR GRANTING THE PETITION

A. The Respondent’s 1929 Zoning Ordinance is

Unconstitutional

The ordinance in its entirety is set forth in Footnote 2 of

the Trial Court decision (App. 11a). Its language is plain. It

sets up numerous non-residence districts for individual

parcels where commercial activity was ongoing at the time

of the enactment of the ordinance. The remainder of the town

is zoned residential. Clearly this is spot zoning and, as the

Trial Court pointed out in Paragraph 4 (App. 14a) of its

decision, the same is unconstitutional. The Appeals Court

attempt to re-characterize the language of the ordinance

cannot resurrect the ordinance nor its effect on property

rights. See Penn Central Transp. Co. v. New York City, 438

U.S. 104, (1978); Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992); First Lutheran Church v. Los Angeles

County, 482 U.S. 304 (1987) 107 S. Ct. 2378. Respondent’s

zoning ordinance did not zone the entire town residential

leaving existing non-conforming uses in a grandfathered

Status; rather the ordinance spot zoned hundreds of parcels.

This is patently unconstitutional and in violation of the Fifth

and Fourteenth Amendments in regard to due process and

just compensation.

6

B. The Failure To Remand The Case To The Trial Court

For Additional Evidence and Findings On The Issue

Of Pre-existing Nonconforming Commercial Use Is

A Violation Of Due Process

Other than the finding of that premises frontage road

was a “cartpath in the woods” (App. 15a) there was no

evidence adduced by either party as to commercial activity

pre-existing the Respondent’s 1929 zoning ordinance. In

1929, except for a handful of exceptions, no roads in the

Town of Barnstable or anywhere on the Cape Cod peninsula

for that matter, were other than dirt/gravel ways. Certainly

none were paved at the outskirts of town where the premises

are located, which premises in fact abut the adjacent Town

of Sandwich, Massachusetts. As late as the 1960’s the

premises actually included land in said Sandwich prior to

being conveyed to a third party surveyor. The mere fact that

the frontage road was dirt/gravel is not sufficient as a matter

of law to warrant the conclusion that there was no ongoing

commercial use at that time.

The Trial Judge, having found the 1929 statute

unconstitutional, was unconcerned with pre-1956 (the year

of the earliest ordinance of Respondent that the Trial Judge

found valid) commercial activity, and therefore his findings

are cursory on that issue. The Judge correctly opined that

the commercial uses did have validity and made an order to

that effect. By the time of the Petitioner’s Application for

Further Appellate Review to the Supreme Judicial Court of

the Commonwealth of Massachusetts, additional clear,

convincing and relatively irrefutable evidence of the

commercial use of the premises pre-dating the 1929

ordinance was located, memorialized by sworn affidavit and

presented to the high Court. It is also clear that Petitioner’s

7

previous counsel, trial counsel, had been suffering from

serious mental disability and should have more effectively

investigated and presented appropriate evidence on this point.

In order to effectuate justice and adhere to due process the

matter should have been remanded to the Trial Court for

further evidentiary proceedings. See Fifth and Fourteenth (§1)

Amendments to the U.S. Constitution, and Renton v. Playtime

Theatres, Inc., 475 U.S. 41 (1986) 106 S. Ct. 925. With the

Supreme Judicial Court clearly aware, prior to its decision,

that the overwhelming state of the most current evidence

available confirmed that non-conforming pre-existing

commercial uses were being conducted on Petitioner’s

premises prior to the earliest of Respondent’s zoning

ordinances, the Court’s failure to remand for further

evidentiary proceedings is patently unjust and falls short of

due process.

C. Is the preclusion of all commercial uses tantamount

to preclusion of all uses and in fact, inverse ©

condemnation in violation of the Fifth An. adment.

There is no doubt that the decisions of the Massachusetts

Appeals and Supreme Judicial Courts do prohibit all uses of

the property. The premises cannot be used for residential

purposes because same have been tainted and contaminated

for five score years as a gravel pit, contractor’s yard and

junkyard and also because there are thousands of tons of

extremely undesirable materials buried throughout the

property.

In the case of Penn Central Transp. Co. v. New York

City, 438 U.S. 104 (1978) this Court found no taking but

explained the requirements for so finding and the instant case

of Gifford satisfies those requirements in that all uses of any

8

kind have been precluded. See also Lucas v. South Carolina

Coastal Council, 505 U.S. 1003 (1992):

It seems unlikely that common law principles

would have prevented the erection of any

habitable or productive improvements on

petitioner’s land; they state law to be dealt with

on remand. We emphasize that, to win its case,

South Carolina must do more than proffer the

legislature’s declaration that the uses Lucas

desires are inconsistent with the public interest,

or the conclusory assertion that they violate a

common law maxim such as sic utere tuo ut

alienum non laedas. As we have said, a “State, by

ipse dixit, may not transform private property into

public property without compensation... .”

Webb’s Fabulous Pharmacies, Inc. v. Beckwith,

112 S.Ct. 2886.

and the case of First Lutheran Church v. Los Angeles County,

482 U.S. 304 (1987) 107 S. Ct. 2378:

Under the Just Compensation Clause, where the

government has taken” property by a land-use

regulation, the landowner may recover damages

for the time before it is finally determined that

the regulation constitutes a “taking” of his

property. The Clause is designed not to limit the

governmental interference with property rights per

se, but rather to secure compensation in the event

of otherwise proper interference amounting to a

taking. A landowner is entitled to bring an action

in inverse condemnation as a result of the self-

executing character of the constitutional provision

9

with respect to compensation. While the typical

taking occurs when the government acts to

condemn property in the exercise of its power of

eminent domain, the doctrine of inverse

condemnation is predicated on the proposition that

a taking may occur without such formal

proceedings. “Temporary” regulatory takings

which, as here, deny a landowner all use of his

property, are not different in kind from permanent

takings for which the Constitution clearly requires

compensation. Once a court determines that a

taking has occurred, the government retains the

whole range of options already available —

amendment of the regulation, withdrawal of the

invalidated regulation, or exercise of eminent

domain. But where the government’s activities

have already worked a taking of all use of property,

no subsequent action by the government can

relieve it of the duty to provide compensation for

the period during which the taking was effective.

Invalidation of the ordinance without payment of

fair value for the use of the property during such

period would be a constitutionally insufficient

remedy.

10

CONCLUSION

————=

For the foregoing reasons, a writ of certiorari should be

granted.

Respectfully submitted,

JAMES W. STATHOPOULOS

43 Kingston Street

Boston, Massachusetts 02111

(617) 423.0001

Attorney for Petitioner

APPENDIX

la

APPENDIX A — MEMORANDUM AND ORDER OF

THE COMMONWEALTH OF MASSACHUSETTS,

APPEALS COURT ENTERED OCTOBER 28, 2002

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 shaped 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

2a

Appendix A

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.

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 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.’ (A.405, 426, 658).

In 1996, a contractor for the tows of Barnstable

contracted with Gifford to use fill fro. ““%“« Wakeby Road

property to cap the Barnstable landfill. Betore Gifford began

harvesting this gravel, the Barnstable building commissioner

advised the town council that the gravel operation was a

lawful preexisting non-conforming use.” Thereafter, mining

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).

3a

Appendix A

and excavation activities were increased and the buffer of

trees between the excavation and the boundary of the property

was stripped away, exposing the 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,

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.

3. 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, 127 N.E. 525 (1920).

4a

Appendix A

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,

692 N.E.2d 544 (1998), quoting from Whittemore v. Building

Inspector of Falmouth, 313 Mass. 248, 249, 46 N.E.2d 1016

(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, 560

N.E.2d 138 (1990). “Such zoning constitutes a denial of equal

protection under the law guaranteed by the State and Federal

Constitutions, and violates the uniformity requirement of c. 40A,

§ 4.” Rando, supra at 606, 692 N.E.2d 544 (citations and internal

quotation marks omitted).

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.

Sa

Appendix A

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, 566 N.E.2d 597

(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 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.

6a

Appendix A

The judgment of the Superior Court is modified by

striking the clause in paragraph 1 that begins with “except”

and ends with “1956.” As so modified, the judgment is

affirmed.

So ordered.

By the Court (Gelinas,

Kantrowitz & Doerfer, JJ.),

s/ [illegible]

Clerk

Entered: October 28, 2002

7a

APPENDIX B — FINDINGS OF FACT, RULINGS OF

LAW AND ORDER FOR JUDGMENT OF THE

COMMONWEALTH OF MASSACHUSETTS

DATED JUNE 25, 1999

COMMONWEALTH OF MASSACHUSETTS

BARNSTABLE, ss. SUPERIOR COURT

No. 98-87

GIFFORD BROTHERS

SAND AND GRAVEL, INC.

vs.

ZONING BOARD OF APPEALS,

TOWN OF BARNSTABLE

FINDINGS OF FACT, RULINGS OF LAW

AND ORDER FOR JUDGMENT

This is an action brought by the plaintiff pursuant to G.L.

c. 40A, § 17, seeking to overturn the decision of the

Barnstable Zoning Board of Appeals (“Board”’), which upheld

the building commissioners order that the plaintiff cease

business activity at its property on Wakeby Road. The

complaint contains additional counts for declaratory relief

and damages due to an allegedly unconstitutional taking

without compensation effected by the Town of Barnstable’s

(“Town”) application of the zoning by-law to the Property.

The case was tried over the course of three days, April 27-

29, 1999. This court viewed the Property. Based on all of the

credible evidence, the court enters the following findings of

fact.

8a

Appendix B

FINDINGS OF FACT

1. Plaintiff, Gifford Brothers Sand and Gravel, Inc. is a

corporation-organized under the laws of the Commonwealth

of Massachusetts and is the principal owner of the subject

Property.

2. The Property consists of 16.6 acres and is located at

810 Wakeby Road in Marston Mills, a village of the Town of

Barnstable. The tract is irregular in shape running north some

1,550 plus feet from its frontage on Wakeby Road.

3. Lorenzo Thatcher (“L.T.”) Gifford, acquired the

Property by deed from his uncle, Charles Gifford, in 1945.

4. In 1945, the Property was woodland, not in

commercial or residential use. By 1947, L.T. Gifford had

begun commercially removing sand and gravel from the

Property.

5. During his years of ownership, L.T. Gifford used the

Property for a variety of enterprises. Upon his death in 1972,

L.T.’s sons, William and Maynard Gifford, continued in their

father’s ways.

6. From 1947 through 1995, sand and gravel was mined

on the Property for sale and removal to other sites. The

original gravel pit was about 300 feet north of Wakeby Road.

The area is clearly depicted on an aerial photograph taken in

1964 (Exhibit no. 25). Sometime after 1964 sand and gravel

operations moved deeper into the tract on a path northward

of the original pit. By 1988, gravel was being removed in an

area about 750 feet north of Wakeby Road.

9a

Appendix B

7. Insufficient evidence was presented documenting the

frequency and value of mining operations between 1947 and

1995 to enable this court to accurately determine the extent

of the Giffords’ business. Nonetheless, one pertinent fact is

clear: the business, while not operated on a daily basis, was

continual.' At least as to the elder Gifford, the pit business

was a cash-in-pocket operation.

8. The Giffords used excavation equipment to dig the

material, a mechanical screener to sort it, and large trucks to

haul the finished product.

9. At any one time prior to 1995, the sand and gravel

operation occupied but a small portion of the Property, at

most five acres. The Giffords’ primary business was the repair

and salvage of automobiles. Numerous junk vehicles were

placed on the Property, more or less concentrated along the

easterly side of the Property mid-way back from Wakeby

Road. Near to Wakeby Road, buildings were erected to

accommodate the repair and salvage business. A welding shop

was maintained in the buildings. The repair and salvage trade

was a use secured by variance from the Zoning Board in 1964.

10. During the Giffords’ tenure, portions of the Property

were leased to local business for the storage of heavy

1. No evidence was offered-to show that the business complied

with, or failed to comply with, the Town’s earth removal by-law.

Municipalities in Massachusetts were enabled to create such a

specific by-law by statute added in 1949. See GL. c. 40, § 21(17).

Barnstable enacted such a by-law. Because no discussion was offered

by the parties on the subject, this court also declines comment, as it

is not determinative here.

10a

Appendix B

equipment, tools, trailer bodies, boats, etc. This activity was

concentrated along the westerly side of the Property in the

first few hundred feet from Wakeby Road.

11. The northernmost portion of the Property was largely

unused until the 1980’s. Wood roads, the handiwork of the

Giffords, crisscrossed the acreage, but no relation between

the wood roads and the gravel pit was proven to this court’s

Satisfaction at trial. Around 1987 or 1988, William Gifford

removed the trees and topsoil in the northwest quadrant of

the Property [See aerial photo of 1989, exhibit 21].

12. On occasion prior to 1995, construction debris,

stumps and brush were buried on the Property.

13. By 1995, plaintiff was in control of the Property.

The summer of 1996 brought a significant change to the land.

The Town was in the process of capping its landfill (the “town

dump”). The contractor for the project entered into an

agreement with plaintiff to secure fill from the Property.

During a four-month period approximately 150,000 tons of

gravel was removed. The northwest quadrant of the Property

yielded the bulk of the fill. Along the northwest boundary

mining operations were taken to, and in spots over, the

property line. Along the northeast property line the excavation

advanced towards the residential neighborhood of

Mockingbird Lane. The buffer of trees between the

excavation and the property line was removed. Families

living along the southwest side of Mockingbird Lane bore

the brunt of the full scale mining operation. Their homes

were coated with dust, the ground and buildings shook from

the use of heavy equipment, and their waking and sleeping

hours were interrupted by noise.

lla

Appendix B

14. The Town of Barnstable enacted a primitive zoning

by-law in 1929.?

2. The by-law, Article 10, stated:

The Town of Barnstable is hereby divided into

districts, subject to the provisions hereinafter stated, to

be known respectively as non-residence districts and

residence districts as follows: Non-residence Districts

subject to change as hereinafter provided, shall

compromise all lands which 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, 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

conversion 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 to such purposes, if the Selectmen

shall after public hearing so order, provided that no such

permit shall be granted except upon written application

and after a public hearing of parties interested and

consideration of their evidence by the Selectmen; notice

(Cont’d)

12a

Appendix B

15. In 1956, the Town revised the zoning by-law to place

the Property in a residential zone. The current zoning by-

law continues that designation, now known as an RF zone

[See Exhibit no. 3A].

16. In 1961, William Gifford filed an application with

the Board for a variance to allow the storage of used cars

and auto parts on a portion of the Property. The request was

denied.

17. In 1964, L.T. Gifford applied for and obtained a

variance to operate an auto salvage business on a portion of

the premises. In 1969, the Board granted Gifford permission

to construct a building on the premises for use in the auto

salvage business.

18. On March 13, 1996, as a prelude to the harvesting

of gravel to cap the Town’s landfill, the building

commissioner wrote to Town Counsel as follows,

“Please be advised that the Gifford gravel pit on

Wakeby Road is a pre-existing non-conforming

use, and as such is lawful from a zoning

(Cont'd)

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 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. (Exhibit no. 9).

13a

Appendix B

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.” [Exhibit no. 31].

19. On May 9, 1997, the building commissioner issued

a written Cease and Desist Order directing plaintiff to stop

transporting wood materials to the Property and to stop

processing such materials at the site [Exhibit no. 1].

20. On October 22, 1997, the building commissioner

issued a written Cease and Desist Order directing plaintiff

to stop the use of the Property as a gravel pit and to stop the

processing of fill, the screening of fill, and the depositing of

fill, brush and clippings [Exhibit no. 2].

21. From the latter Order, plaintiff took an appeal to

the Board. After appropriate hearings, the Board issued its

written decision on January 27, 1998 upholding the building

commissioner [Exhibit no. 17]. The present action followed

in its wake.

22. The Board found, inter alia, that:

... [T]here has been evidence presented to the

Zoning Board of Appeals which would indicate

that at one time, this lot was, in fact, used as a

gravel pit ... No findings are made on whether

or not it was ever a legal pre-existing non-

conforming use ... It was a gravel pit, prior to

the adoption of zoning in that area, which is

purported to be 1956. . . The gravel operation on

l4a

Appendix B

this site expanded beyond the original non-

conforming use — assuming that the use was

legally non-conforming to an area enveloping

almost the entire lot ... There is evidence of

serious erosion on this property which if allowed

to continue will result in significant concern for

public safety and public health.

RULINGS OF LAW

1. This is an action brought pursuant to G.L. c. 40A

§ 17. There is no dispute as to plaintiff's standing to bring

this action as an aggrieved party. His status is well

recognized. G.L. c. 40 § 11; also see, e.g, Shriners’ Hosp. for

Crippled Children v. Boston Redevelopment Authy. , 4 Mass.

App. Ct. 551, 555 (1976).

2. In an abundance of caution, plaintiff sought relief

under G.L. c. 40A § 17 (Zoning Act) and alternatively

G.L. c. 231A (declaratory judgment). While the latter is an

available remedy, the former is preferred. See generally Clark

& Clark Hotel Corp. v. Building Inspector of Falmouth, 20

Mass. App. Ct. 206 (1985). As such, this court proceeds under

the Zoning Act.

3. The court has conducted a trial de novo in accordance

with the mandate of the statute and case law. G.L. c. 40A

§ 17; 39 Joy Street Condominium Ass’n v. Board of Appeal

of Boston, 426 Mass. 485, 488 (1998).

4. The Board first argues that the Property was governed

by the 1929 zoning by-law, and therefore the gravel pit was

15a

Appendix B

never a legal use. In 1929, Wakeby Road was nothing more

than a cart path through the woods. If the by-law did control,

the Property would have been deemed residential inasmuch

as there was no commercial use of the Property until the

gravel pit came into being in the late 1940’s. Under this

theory, the gravel pit, without a variance, was an illegal non-

conforming use under the 1929 by-law, and therefore

remained an illegal use under the 1956 by-law. Interestingly

enough, the Board seems to have ignored the 1929 by-law in

its own decision, having ruled that zoning first took effect in

1956. This Court has great difficulty in interpreting the

language of the by-law in order to determine if it applied to

the use in question on the premises in question. Issues of

interpretation need not be resolved however, for the by-law

suffers from a more basic problem. The by-law simply

categorized the de facto use of each parcel of land in the

Town in 1929 and thereby sorted each parcel into either a

business or residential zone. As applied, such a parcel by

parcel setting of zoning districts effects a result where

contiguous lots, which are alike in every aspect except one

was in commercial use and the other in residential use in

1929, would be zoned differently. In effect, the Town created

an oligopoly for pre-existing business interests in Town. Such

economic advantage created by zoning runs afoul of the

zoning enabling act of the era, and is now known as “spot

zoning.” G.L. c. 40 § 25, as added by St.1920 c. 601, §§ 1, 2,

and amended by St.1925 c. 116 § 1; Opinion of the Justices

to the House of Representatives, 234 Mass. 597 (1920). Also

‘see Smith v. Board of Appeals of Salem, 313 Mass. 622, 624-

25 (1943); Leahy v. Inspector of Buildings of New Bedford,

308 Mass. 128, 132-34 (1941) (zoning districts must be

substantial contiguous areas, not individual parcels). Because

l6a

Appendix B

the 1929 by-law was beyond the authority of the Town and

invalid as applied to the Property, this court finds that the

by-law does not govern the outcome of this case. See Cross

v. Planning Board of Chelmsford, 345 Mass. 618, 620 (1963).

5. No such problem exists with the zoning by-law

adopted by the Town in 1956, which placed the Property in a

residential zone. Being in a residential zone, the gravel pit

was rendered non-conforming under the new by-law, but was

entitled to the grandfather rights accorded legal pre-existing

uses by mandate of the then-existing Zoning Enabling Act,

GL. c. 40A §§ 3, 5 & 11, as added by St.1954, c. 368 § 2

(1954). Under the 1956 by-law, the gravel pit was a legal

pre-existing non-conforming use.

6. At the introduction of the 1956 by-law, the gravel pit

was a small operation covering at most five acres near

Wakeby Road [See Exhibit no. 26]. The current by-law

provides for the expansion of a pre-existing non-conforming

use by means of a special permit (§ 4-4.5(2)). Plaintiff has

not sought a special permit, but instead contends that it can

expand the gravel pit as a matter of right to the boundaries

of the Property.

7. During the post-World War II building boom, the

suburban towns of Massachusetts gave rise to a flurry of

appellate decisions on the application of zoning law to gravel

pits. Town of Wayland v. Lee, 331 Mass. 550 (1954)

(“Wayland IT’); Town of Wayland v. Lee, 325 Mass. 637

(1950) (“Wayland I”); Town of Billerica v. Quinn, 320 Mass.

687 (1947); Town of Burlington v. Dunn, 318 Mass. 216

(1945). Little has been written directly on point since. In the

17a

Appendix B

shadow of these cases, plaintiff argues on factual and legal

grounds, respectively that: 1) the gravel pit was originally

sited for the entire parcel and therefore can be extended to

its boundaries within the legal non-conforming use

established thereby, or 2) that the law allows the extension

of a gravel pit beyond its original use because of the very

nature of the enterprise.

8. In regards to its factual argument, plaintiff has failed

to establish that as of 1956, the entire parcel had been

appropriated to use as a gravel pit. See Town of Billerica,

supra. On the contrary, this Court finds that the Giffords

intended multiple uses for the parcel. The auto salvage

operation was established along the eastern boundary of the

lot. By the terms of the variance it was to be screened from

view by the surrounding woodland owned by the Giffords.

No test borings were done, no clearing of the back land was

accomplished; in short, no provisions were evident circa

1956, indeed prior to 1985, suggesting any intent to use a

substantial portion of the premises for screening gravel.

Plaintiff has not proven the right to expand the pit under the

Billerica doctrine. Compare Township of Fairfield v.

Likanchuk’s, Inc., 644 A.2d 120,124-25 (N.J. Super. 19 ».).

9. Turning to plaintiff’s legal argument, this court relies

on two more recent decisions which have established the

protocol for evaluating the permissibility of non-conforming

uses. Powers v. Building Inspector of Barnstable, 363 Mass.

648 (1973); Bridgewater v. Chuckran, 351 Mass. 20 (1966).

“The first test is whether the present use reflects the nature

and use prevailing when the zoning by-law took effect... .

The second test is whether there is a difference in the quality

18a

Appendix B

or character, as well as the degree of the present use ...

The third test is whether the current use is different in kind

in its effect on the neighborhood.” Powers, supra, at 663;

see Chuckran, supra, at 23. On appeal to this court, plaintiff

has the burden to prove compliance with the Powers/

Chuckran three-part test. Derby Refining Co. v. Chelsea, 407

Mass. 703, 712 (199%,

10. In spite of this evolving line of precedent, plaintiff

argues that the so-called “diminishing assets” doctrine of

other jurisdictions should apply, which creates an exception

to the normal Powers/Chuckran-like framework for gravel,

earth, or other diminishing land asset removal operations.

See Moore v. Bridgewater Township, 173 A.2d 430, 437

(N.J. Super. 1961). The general rationale behind the doctrine

is that in a quarrying or earth removal business, the land

itself is an asset, which by the very nature of the operation,

diminishes over time. The use cannot begin over the entire

tract of land at once, and is therefore naturally expansive.

The jurisdictions which allow the exception note that

disallowing expansion would be tantamount to disallowing

the use. Our own Supreme Judicial Court noted the harsh

effect of standard zoning interpretation as to gravel pits in

Wayland IT: “The defendants [Town of Wayland] contend that

[Massachusetts law] limits [the plaintiff] to the excavation

of pits or holes that have already been excavated and now

contain nothing but air. Such an absurd result was not

contemplated by this court... .” Supra, at 551.

That said however, Massachusetts does not recognize

the diminished assets doctrine as accepted by other

jurisdictions and argued by the defendants, nor does this court

19a

Appendix B

believe the facts presented herein warrant its adoption.

Wayland I, supra; Town of Billerica, supra. Of the states in

which the question has arisen, it appears only Massachusetts

and Connecticut do not apply the doctrine in some form.

See Hansen Brothers Enterprises, Inc. v. Board of

Supervisors of Nevada County, 907 P.2d 1324, 1337 (Cal.

1996) (discussion of varied approaches to diminishing assets

across jurisdictions); Teuscher v. Zoning Board of Appeals,

228 A.2d 518 (Conn. 1967) (Connecticut Supreme Court

declines to apply diminishing assets doctrine). At its extreme,

the doctrine allows a landowner to use the entire area of a

gravel bed (or other mined product) without creating an

unlawful extension of a nonconforming use, not just the area in

which operations were being conducted when the by-law was

adopted. See, e.g., Blom v. St. Louis County Planning

Commission, 1999 WL 10241 (Minn.App. Jan 12, 1999). Other

states look to the bounds of the property owned at the time of

the by-law adoption, rather than the bounds of the asset, and

therefore extend the exemption of the existing nonconforming

use to the property bounds. Hansen Brothers Enterprises, Inc.,

supra, at 1337. Still other states have mitigated the effects of

the diminishing assets doctrine by allowing expansion of earth

removal to a certain distance from the property line, creating a

buffer zone for abutters, or allowing expansion only within a

set percentage of the land. See Flanagan v. Town of Hollis, 293

A.2d 328, 329 (N.H. 1972).

It is interesting to note, however, that many states which

are thought of as “diminishing assets” states still limit the

doctrine to cases where it can be shown that the objective intent

to mine the entire parcel predated the zoning by-law in question,

using reasoning similar to the Supreme Judicial Court’s in the

20a

Appendix B

Billerica and Wayland II cases. See Township of Fairfield, supra,

at 329, quoting Moore, supra. “[I]n such cases the owner must

show that the entire tract was ‘dedicated’ to the mining activity

despite the fact that the activity was limited when it was rendered

a nonconforming use. The mere unexpressed intention or hope

of the owner to use the entire tract at the time the restrictive

ordinance is adopted is not enough. Intent must be objectively

manifested. .. .” Id, at 329 (citations omitted).*

Massachusetts precedent also looks to objective

manifestations of mining intent, limiting expansion within

“the exact boundaries of the area devoted to those [mining

pits]” present at the time the restrictive ordinance or by-law

was adopted. See Wayland II, supra, at 552. The major

difference between Massachusetts and the so-called

“diminishing assets” jurisdictions, however, is that our courts

are adverse to exempting gravel pit cases from the Powers/

Chuckran framework, allowing objective intent to mine to

only factor into the first prong of the test, rather than allowing

the use of a diminishing asset to be determinative. See

Wayland II, supra; Wayland I; supra; Town of Billerica, supra;

Town of Burlington, supra.

Our judicial and legislative history support this

conclusion. In 1949, the Legislature recognized the special

problem of earth removal, and enacted a statute to specifically

allow municipalities to regulate such operations. G.L. c. 40

§ 21 (17), as added by St.1949, c. 98. In 1956, the Supreme

Judicial Court foreshadowed its inclination toward the

minority view with the dicta: “There is no constitutional right

3. It is interesting to note that plaintiff here relies on the Moore

case.

2la

Appendix B

to convert wild land into waste land.” Town of Lexington v.

Simeone, 334 Mass. 127, 130 (1956). Since then, our courts

have adhered to the notion that ‘whatever harshness might

result from strict regulation of changes in nonconforming

uses is justified by policy considerations which generally

favor their eventual elimination.” Blasco v. Board of Appeals

of Winchendon, 31 Mass. App. Ct. 32, 39 (1991). See also

Strazzulla v. Building Inspector of Wellesley, 357 Mass. 694,

697 (1970); Dowling v. Board of Health of Chilmark, 28

Mass. App. Ct. 547, 551 (1990).

11. Therefore, applying the requisite test in light of the

above discussion, this court concludes that plaintiff has not

proven a permissible expansion of its nonconforming use

on the Property. This court does agree with plaintiff that the

nature and purpose of the use, i.e. commercial gravel removal,

remains the same as pre-1956 operations. Compare First

Crestwood Corp. v. Building Inspector of Middleton, 3 Mass.

App. Ct. 234, 236 (1975). Plaintiff fails, however, to prove

that the quality, character and degree remain unchanged. As

noted above, plaintiff failed to show any objective intent to

use the entire property for gravel mining. The area devoted

to the gravel pits at the adoption of the 1956 by-law was

limited to the approximately five acres of cleared area in the

southernmost portion of the property [See Exhibit no. 25].

Plaintiff's current day operation far exceeds the use as it

existed in 1956.

Moreover, and probably most detrimental to plaintiff’ s

cause, there has been no showing that the current use is not

“different in kind in its effect on the neighborhood.”

Chuckran, supra, at 712. To the contrary, the Town has shown

22a

Appendix B

that the surrounding property owners have borne the brunt

of plaintiff's expanded operations, in the form of increased

noise, increased particulate in the air, and possible structural

consequences. For these reasons, this court concludes that

plaintiff cannot meet its burden under the Powers/Chuckran

test.

12. Plaintiff makes two arguments why, even though an

impermissible expansion may have occurred, the Board’s

decision should be overturned. First, plaintiff argues that the

building commissioner’s letter of March 13, 1996, which

States the opinion that the gravel pit was currently a legal

non-conforming use, should be binding on the Town under

some theory of equity or estoppel. It is true that when the

Town needed gravel in 1996 for the Town Dump, the building

commissioner was compliant. While the court does not wish

to encourage such duplicity, whether intentional or negligible,

the building commissioner’s letter of opinion cannot act to

bar the Town from now seeking to enforce the by-law.

Under Massachusetts law, the failure to implement a by-

law works no estoppel. Building Inspector of Lancaster v.

Sanderson, 372 Mass. 157, 162 (1977); Seekonk v. Anthony,

339 Mass. 49, 55 (1959). If a use or structure “[is] a violation

of a... zoning by-law, no permit [can] legalize it.” Id,

quoting Inspector of Buildings of Burlington v. Murphy, 320

Mass. 207, 210 (1947). The safety and welfare benefits

conferred by zoning by-laws enure to the public, and “[that]

right of the public to have the zoning by-law properly

enforced cannot be forfeited by the action of its officers.

Cullen v. Building Inspector of N. Attleborough, 353 Mass.

671, 675 (1968). Plaintiffs first argument must therefore fail.

23a

Appendix B

13. Plaintiff’s second argument is that if the zoning by-

law excludes the expanded gravel pit operation, then the by-

law effects a regulatory taking on the Property. However,

adoption of zoning by-laws and enabling statutes which are

not arbitrary and do not unduly restrict the use of private

property is a permissible use of the police power and does

not violate the takings clause of the Fifth Amendment of the

United States Constitution or Article 60 of the Amendments

to the Massachusetts Constitution. See Penn Central Transp.

Co. v. New York City, 438 U.S. 104 (1978); Nectow v. City of

Cambridge, 277 U.S. 183 (1928); Kilgour v. Grotto, 224 —

Mass. 78 (1910). Zoning by-laws have historically been used

to stabilize use of property and protect areas from deleterious

uses. Enos v. City of Brockton, 354 Mass. 278, 280-81 (1968).

Specific earth removal by-laws have been held to further the

same purpose. Glacier Sand & Stone Co. v. Board of Appeals

of Westwood, 362 Mass. 239, 242 (1972). Further, this court

notes that plaintiff is left with many alternative uses for

_ the property, in fact the property is historically multi-use.

No taking by regulation has occurred in the present case.

See Daddario v. Cape Cod Commission, 425 Mass. 411

(1997); also see generally Town of Lexington, supra, at 130.

14. Finally, the Board contends that by stretching the

expansion of the pre-existing use beyond reason, plaintiff

has lost not only the expansion, but the use itself. On this

point the Town cites, Ka-Hur Enterprises v. Zoning Bd. of

Provincetown, 424 Mass. 404 (1997). The Town’s contention

does not flow from the case cited. KaHur deals with the issue

of abandonment and discontinuation of a non-conforming

use. Abandonment is generally a question of fact. Paul v.

Selectmen of Scituate, 301 Mass. 365, 370 (1938). Mere non-

24a

Appendix B

use 01 property in of itself does not constitute an abandonment

of use, and additional facts must be present before such a

finding. Derby, supra, at 709. No abandonment has been

shown in the present case. Gravel mining, albeit sporadic,

has been continuous on the Property. By devoting other

portions of the Property to different uses, the Giffords did

not discontinue the gravel pit, they simply limited its range.

Ka-Hur Enterprises, supra.

CONCLUSION

For the above reasons, plaintiff is left with the right to

mine that portion of the site appropriated to gravel mining

as of 1956. That area is best described as the southernmost

five acres of the site shown as cleared land on Exhibit no.

25. To the extent this decree leaves plaintiff mining air, see

Wayland II, such a result is a reflection of the realities of

gravel mining, coupled with the passage of two score years,

and does not indicate hollow justice.

25a

Appendix B

ORDER

It is therefore ORDERED that Judgment enter

AFFIRMING the decision of the Barnstable Zoning Board

of Appeals sustaining the Cease and Desist Order of the

building commissioner dated October 22, 1997, in all respects

except as to the removal of gravel on that portion of the

Property appropriated to that use in 1956.

s/ Gary A. Nickerson

Gary A. Nickerson

Justice of the Superior Court

DATED: June 25, 1999

26a

APPENDIX C — ORDER OF THE SUPREME

JUDICIAL COURT FOR THE COMMONWEALTH OF

MASSACHUSETTS DENYING FURTHER APPELLATE

REVIEW DATED DECEMBER 21, 2005

SUPREME JUDICIAL COURT FOR THE

COMMONWEALTH OF MASSACHUSETTS

No. FAR-15086

GIFFORD BROTHERS SAND AND GRAVEL, INC.,

VS.

ZONING BOARD OF APPEALS OF BARNSTABLE.

NOTICE OF DENIAL OF F.A.R. APPLICATION

Please take note that on 12/21/05, the above-captioned

Application for Further Appellate Review was denied.

Susan Mellen, Clerk

Dated: December 21, 2005

27a

APPENDIX D — AFFIDAVIT OF FRANCIS RENNIE

DATED SEPTEMBER 7, 2005

AFFIDAVIT OF FRANCIS RENNIE

I, Francis Rennie, to the best of my personal knowledge and

belief, do hereby state the following:

1. I was born on June 21, 1914 and reside at 258

Popponesset Road, Cotuit, Massachusetts.

I have lived on Cape Cod for my entire life, except

for 5 years - World War II.

From 1920 though 1924 I lived in Marstons Mills

on Newtown Road about a mile from 810 Wakeby

Road, the property of Charles Gifford, the former

State representative who maintained a gravel pit at

said premises.

I knew Charles Gifford and knew him to be a

cranberry bog owner and builder. I have seen sand

being delivered to many of the bogs in walking

distance from Wakeby Road.

At that time and at those premises I can remember

there were no residences on the property and that

much of the loam and wood had been removed. Sand

was being extracted at the time, There were also cars,

trucks and equipment in various conditions on the

premises.

28a

Appendix D

6. I can clearly remember during my enrollment in

grades One through Four (1920-1924) in the

Marstons Mills Elementary School that I observed

the Gifford property at Wakeby Road, Marstons

Mills which area at that time was called Newtown/

Santuit.

When I first observed these premises they were

clearly being utilized as a sand and gravel pit. I have

lived in close proximity to these premises all of my

life including up to the present day and said premises

have always been used for extraction and processing

of sand, gravel, loam, and compost, and also for

storage, repair and operation of vehicles and

equipment.

Sworn and subscribed under the pains and penalties of perjury

Dated: September 7, 2005 s/ Francis Rennie

Francis Rennie

29a

APPENDIX E — AFFIDAVIT OF ROBERT H. ELLIS

DATED DECEMBER 239, 2003

AFFIDAVIT OF ROBERT H. ELLIS

I, Robert H. Ellis, to the best of my personal knowledge and

belief, do hereby state the following:

l,

I was born on January 21, 1918, and reside at 2

Canary Street, Sandwich, Massachusetts.

I have lived on Cape Cod for my entire life.

In 1923 at the age of five I was present with my

father Mark Ellis at 810 Wakeby Road, the property

of Charles Gifford, the former state representative

who maintained a gravel pit at said premises.

At that time and at those premises I can remember

ongoing operations where loam, sand and gravel

were being extracted. There were also vehicles and

equipment in various conditions on the premises,

but being young at the time, I did not understand

their use.

I was driving at the age of five years old. I can

remember that when I began attending school I

myself would often drive our vehicle with my father

being present.

My father would take me with him because he was

suffering from a double hernia which would cause

him considerable difficulty and render him unable

30a

Appendix E

to drive for periods of time. I would take over the

driving to assist him when necessary and this was

often.

I can clearly remember being five years old and

observing the Gifford property at Wakeby Road,

Marstons Mills which area at that time was called

Newtown/Santuit.

When I first observed these premises they were

clearly being utilized as a sand and gravel pit. This

was in the year 1923.

Sworn and subscribed under the pains and penalties of perjury

Dated: December 29, 2003 s/ Robert H. Ellis

Robert H. Ellis

OPPOSITION

BRIEF

FILED

JUL $8 2006

No. 05-1533 OFFICE OF ie CLERK

T, U.S.

IN THE

Supreme Court of the Gnited States

GIFFORD BROTHERS SAND AND GRAVEL, INC.,

Petitioner,

v.

ZONING BOARD OF APPEALS OF BARNSTABLE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE MASSACHUSETTS APPEALS COURT

RESPONDENT, TOWN OF BARNSTABLE’S

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

June 2006

BATEMAN & SLADE, INC.

snemuinbaeemnenihieedieemmamemmteneisinntenll

catndieieniiial

ROBERT D. SMITH, Town Attorney,

Counsel of Record

T. DAVID HOUGHTON,

First Assistant Town Attorney

CHARLES S. McLAUGHLIN, Jr.

Assistant Town Attorney

RUTH J. WEIL

Trial Counsel

TOWN OF BARNSTABLE

367 Main Street, New Town Hall

Hyannis, Ma. 02601-3907

508-862-4620; 508-862-4724 Fax

BOSTON, MASSACHUSETTS

QUESTIONS PRESENTED

I. Is there a compelling issue presented

that warrants this Court's further examination of a

matter that should be decided on a state’s principles

of zoning law?

II. Where the Supreme Judicial Court of

Massachusetts exercised its discretion to deny an

application for Further Appellate Review filed two

years and nine months late, should that exercise of

discretion be reversed?

III. Where no motion for new trial has ever

been presented to the Trial Court, should this relief

now be granted by this Court?

IV. To the extent that enforcement of a valid

residential zoning ordinance puts an end to an illegal

commercial use of a property, does this amount to an

inverse condemnation of the property?

ii

[This page is intentionally left blank.]

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

JURISDICTION OF THE COURT

STATEMENT OF THE CASE

A. Substantive Background

B. Procedural Background

c. Factual Inaccuracies and

Clarifications

REASONS TO DENY THE PETITION

I. The Decisions Of The Supreme

Judicial Court And Appeals Court

Of The Commonwealth Of

Massachusetts Are Entitled To A

High Degree Of Deference. ............0.000s 9

A. The granting of a FAR

Application must be

founded on upon

substantial reasons

affecting the public interest

or the interests of justice. ....... 10

Whether ruling on the

merits or on the Petitioner’s

procedural lapses, the

Supreme Judicial Court

exercised its FAR discretion

PIS: sescvisocensccpribcaicnrnsses 11

iv

Substantively, the

validity of a zoning

enactment in

Massachusetts that

breaks an entire

town into two zoning

districts, business

and residential, is

well settled and in

accord with the

Appeals Court

decision in this

MEME ce cebdaen duns bedsadabaks 1]

Procedurally,

rejecting a FAR

application

presented two years

and nine months late

is certainly within

the proper exercise

of the Supreme

Judicial Court's

I ies 12

Procedurally, a late

motion for re-hearing

with the State

Appeals Court would

justify both the

Appeals Court denial

of the motion and

the refusal of the

Supreme Judicial

Court to further

review the matter. ........ 13

Vv

Petitioner's Demand Amounts To

A Motion For A New Trial. It Is

Seven Years Late And

CIO. vice covnsavectivecesssvectercsenente 14

A. There is no record to

support the assertion that

“new” evidence offered by

affidavit could not have

been discovered before trial.

Even if timely presented,

the “new evidence”

proffered in affidavits would

not support a motion for

ET Se Gate cccsasceytnewdnnedesdennie 16

Incompetence of Trial

Counsel: Even with no

express time constraints to

raise this matter, the trial

judge has never been asked

PS. iba debebensnerdennbcousienshens 17

Neither Enactment Nor

Enforcement Of A Valid Zoning

Ordinance Is A Taking. ...........:..seeeee 18

A. Adopting town-wide zoning

that prohibits certain

activities is clearly a

permissible undertaking. ........ 18

Affirming the ban of

commercial activities on

locus is neither a taking

nor an inverse

condemnation.

vi

The taking claim is not ripe

because there has been

neither pursuit nor denial

of just compensation. ............. 19

It is factually untrue that

Petitioner has no other uses

TOE TD IIE, sencesscteucscicnesis 19

Petitioner has not pursued

or exhausted its range of

remedies that would infuse

value into its property. ........... 20

CONCLUSION

TABLE OF AUTHORITIES

CASES:

Brown v. Penn. R.R., 282 F.2d 522

(3rd Cir. 1960), cert. denied

365 U.S. 818, 81 S. Ct. 690,

5 L.Ed.2d 696 (1961)

Cheang-Kee v. United States,

70 U.S. 320 (1865)

Daddario v. Cape Cod Commission,

425 Mass. 411 (1997)

Farmers Co-operative Elevator Association v.

Strand, 382 F.2d 224 (8th Cir. 1978)

Flett v. W.A. Alexander & Co.,

302 F. 2d 321(7th Cir.), cert. denied

371 U.S. 841, 83 S. Ct. 71,

9 L.Ed.2d 77 (1962)

Gage v. Egremont,

409 Mass 345, 566 N.E. 2d 1597 (1991) 1]

Giordano v. McCartney,

385 F.2d 154 (3rd Cir. 1967)

MacDonald, Sommer & Frates v. County of Yolo,

477 U.S. 340 (1986)

Marietta Realty, Inc. v. Springfield Redevelopment

Authority, 902 F. Supp. 310

(D. Mass. 1995)

Palazzolo v. Rhode Island,

533 U.S. 606 (2001)

Penn Central Transportation Co. v.

New York City, 438 U.S. 104 (1978)

Village of Euclid, Ohio v. Amber Realty Co.,

272 U.S. 365 (1926)

Williamson County Regional Planning Commission

v. Hamilton Bank, 473 U.S. 172 (1985) 19

RULES:

Massachusetts Rules of Appellate Procedure

PNG BT OT ccisecucssésttvsmascivavixgernanimeeees 6, 7,10, 12

Massachusetts Rules of Civil Procedure

Rule 60(b)

Supreme Court Rule 15(2)

JURISDICTION OF THE COURT

The Petitioner's jurisdictional statement is

incomplete in two vital respects and_ therefore

potentially misleading.

Petitioner filed a single motion in_ the

Commonwealth's Appeals Court to Extend Time to File

a Petition for Rehearing and for Leave to File an

Application for Further Appellate Review with the

Commonwealth’s Supreme Judicial Court (Appeals

Court docket, Respondent’s Appendix D, pp. 15a-

20a)!. The Appeals Court did two things.

First, the Appeals Court extended the time to file for

re-hearing, directing that Petitioner do so by

December 19, 2002. Petitioner failed to comply with

that order. However, a Petition for Re-hearing was filed

on December 20, 2002, one day late. The Appeals

Court then denied the Petition without comment.

Secondly, the state Appeals Court notified

petitioner's current counsel that any petition for

Further Appellate Review (FAR) would need to be filed

directly with the Commonwealth’s Supreme Judicial

Court. On December 11, 2002, counsel announced in

a letter to the Clerk of the Supreme Judicial Court

that he intended to do so?.

Nevertheless, nothing (no FAR Application, no

motion to extend the time for filing a FAR, no motion

for extraordinary relief given co-counsel'’s alleged

incapacity, no motion to withdraw appearance, and

1 For clarity, references to Appendix items in Respondent's

Brief will be referred to as “R. App, etc”. Reference to such iterns in

Petitioner's Brief will be referred to as, simply, “App., etc.)

2 In a letter dated December 11, 2002 directed to the Clerk of

the Supreme Judicial Court (R. App. A, pp. la-2a), current counsel

for the Petitioner stated in part, “I am writing to confirm the above

because at this time it is my intent to file a Rule 27 petition for

rehearing and a Rule 27.1 application for further appellate review.”

2

apparently no timely or effective follow-up with alleged

successor counsel ... in short, nothing) was done,

filed, requested, or advanced for two years and nine

months after the required twenty-day deadline for

filing a FAR petition.

Finally, on October 7, 2005, a Motion to File a FAR

Application Late, accompanied by the FAR application

itself, was docketed in the Supreme Judicial Court

which denied the Application without comment on

December 21, 2005 (R. App. E, pp. 2la-23a).

STATEMENT OF THE CASE

A. Substantive Background

This is a routine zoning case that focuses on

Petitioner's mining of sand and gravel on a 16.6 acre

parcel in a residential zone. Having received a cease

and desist order from the Town, the petitioner

appealed the order to the Town’s Zoning Board of

Appeals on the theory that the commercial use of the

property was a protected, non-conforming use.

In 1929, Barnstable enacted its first zoning by-law

that created two zones, business and residential. The

business zone consisted of all properties that were

then devoted to business use. The residential zone

consisted of all remaining property in town (App. A:

pp. 2a — 3a; App. B, pp. 1la-12a).

In 1956, Barnstable revised the zoning by-law,

placing locus entirely in a residential zone, a

classification that continues to date (App. A: pp. 2a;

App. B: p. 12a).

The outcome of the action is dependant on the

validity of the 1929 zoning enactment. If valid, all of

Petitioner's commercial activities are illegal. On the

other hand, if the 1929 by-law is invalid, the 1956 by-

law controls; however, only that portion of Petitioner’s

3

property devoted to mining activities in 1956 is

protected as a non-conforming use.

The trial court found as fact that locus was virgin

land until about 1947 when commercial activity began

(App. B: p. 8a - #4). At that time, Petitioner's

predecessor in title began to operate a sand and gravel

pit, a contractor's storage yard, and a junkyard on

portions of a 16.6 acre site (App. B: pp. 8a-10a). At

trial, Petitioner presented little or no _ evidence

concerning pre-1929 use and the trial court made no

findings as to pre-1929 use (App. B: pp. 7a-14a).

The trial court found that until about 1996, the

mining operation occupied, at most, about five acres

of the property (App. B: p. 21a). In 1996, Petitioner

greatly expanded mining operations (App. B: p. 10a).

Having ruled that the 1956 by-law was controlling,

the trial judge next addressed the physical extent and

character of the non-conforming mining use. As a

matter of law, he therefore limited mining to the five

acre site in use before the 1956 by-law enactment. He

dia so even as he acknowledged that the five acres had

been effectively stripped of all of its resources and that

Petitioner would thus be left with the ephemeral right

to mine only “air” (App. B: p. 24a).

In related rulings, the trial court rejected

Petitioner’s argument that the property owner's intent

to mine the whole property should control to allow

expansion of the protected non-conforming use. To the

contrary, the trial court found as fact that not only

had no such intent been proven, but that a clear

contrary intent had been shown (App. B: pp. Ya, 17a).

3 This was apparently a tactical decision made by trial counsel,

given the trial judge’s focus in a pre-trial conference on the 1956

by-law. See a discussion of the issue at paragraphs 21-22 in

Petitioner's Motion to Enlarge Time (R. App. B, pp. 3a-9a) filed

with the Supreme Judicial Court in October 2005.

4

Petitioner's intent argument was therefore rejected

(App. B: pp. 21a-22a).

Petitioner alternatively argued at trial that the

mining should be allowed on all of locus on a so-called

“diminishing assets” theory of law adopted in some

jurisdictions but previously rejected in Massachusetts

(App. B: pp. 20a-21la). Because of the violence that

this theory of law would wreak on the residential

zoning scheme in general and the immediate

residential neighbors in particular, the trial court

declined to adopt Petitioner's “diminishing assets”

argument to justify expansion of the supposed legal

non-conforming mining use (App. B: pp. 18a-21a).

The Commonwealth's Appeals Court overruled the

trial court and found that the 1929 enactment was a

validly adopted and enforceable by-law (App. A: p. 5a).

Absent appropriate variances or other zoning relief,

the Appeals Court : aled that all mining operations

and other commercial activity begun on this virgin

parcel in 1947 were illegal (App. A: p. 5a). Lacking any

such exception, mining sand and gravel from locus

was at all relevant times an illegal commercial

enterprise. Having so ruled, the Appeals Court found

it unnecessary to address Petitioner's remaining

arguments.

Neither outcome is acceptable to Petitioner as his

mining activities by operation of law or fact have come

to an end.

B. Procedural Background

Both the denial of Petitioner's motion for re-hearing

in the Appeals Court and the Supreme Judicial

Court's denial of the motion for Further Appellate

Review were summary in nature and unexplained.

Because the outcome at the State level could well have

been based on Petitioner’s procedural failings, a

5

statement of this case would be incomplete without a

brief recitation of critical procedural history at the

state level.

The genesis of this matter stems from a cease and

desist order issued by Barnstable’s zoning

enforcement officer on October 22, 1997. Barnstable’s

Zoning Board of Appeals denied the Petitioner's appeal

after hearing in a decision dated January 27, 1998.

Petitioner's complaint was timely filed with the trial

court in February of 1998, followed by a pre-trial

conference and filing of memoranda in December 1998

(R. App. C, pp. 10a-14a). A jury-waived trial lasting

approximately three days commenced in April 1999

followed by the trial court’s findings and rulings in

June 1999. After a motion to alter the judgment was

denied, cross appeals were filed, the record

assembled, the case entered in the Appeals Court in

April of 2000, Petitioner's brief filed in October 2000,

and oral argument held in May of 2002.

It is important to note that throughout this entire

five year period, Petitioner was represented very

vigorously by Attorney Gregory M. Downs who briefed

and tried this matter in the lower court. Subsequently,

Attorney James W. Stathopolous, Petitioner’s counsel

in the instant proceedings, filed his appearance as co-

counsel in the state Appeals Court matter; both

Messrs. Downs and Stathopolous appeared for oral

argument before the Appeals Court while the latter

actually argued the matter to the panel.

In its Appeals Court brief, the Petitioner identified

three issues for the Court's consideration. First, it

asked, “Whether the trial court erred in limiting the

area of continued operation of the sand a gravel pit

based on the uncontroverted testimony showing a

clear intent of the property owner to use the entire

parcel at the time the applicable zoning went into

effect?” Secondly, it asked, “Whether the diminishing

assets theory of the majority of jurisdictions should be

6

adopted by the Commonwealth when dealing with ‘an

assets extraction prior non-conforming use’’? Thirdly,

Petitioner argued that trial court’s findings and

rulings with respect to the 1929 by-law should be

upheld. Those are the only issues argued and briefed

for the Appeals Court and it was upon those

arguments that the Appeals Court expressly ruled.

The decision of the Commonwealth's Appeals Court

was rendered on October 28, 2002. Petitioner then

filed a motion in the Appeals Court to extend the time

to file a motion for rehearing before the Appeals Court

and for leave to file an application for Further

Appellate Review (FAR) with the state’s highest court,

the Supreme Judicial Court. The Appeals Court

allowed the motion to file for rehearing late and

directed counsel to file the motion for rehearing by

December 19, 2002.

In the same order, Petitioner was directed to file its

intended Application for Further Appellate Review

(FAR) directly with the Supreme Judicial Court (R.

App. D, p. 19a, notation #16).

However, contrary to the Court’s order, the motion

for rehearing was not filed until December 20, 2002,

one day after the deadline. Without hearing and

without further explaining its reasoning, the Appeals

Court denied the motion for re-hearing.

Thereafter, no pleadings of any sort were filed with

any court until October 7, 2005 when a motion to file

FAR application late and the FAR application itself

were filed with the Commonwealth's Supreme Judicial

Court (R. App. E, p. 21a).

It is particularly noteworthy that two years, nine

months, and twenty-eight days had elapsed from the

Appeals Court's denial of Petitioner's motion for

rehearing until the FAR filing. It is equally noteworthy

that Rule 27.1 (a) of the Massachusetts Rules of

Appellate Procedure requires that a FAR application

7

be filed within twenty (20) days of the rescript of the

Appeals Court+. Thus, on December 21, 2005, the

Supreme Judicial Court denied the FAR application

without comment.

c. Factual Inaccuracies and Clarifications

Pursuant to the requirements of Sup. Ct. R. 15 (2),

the Respondent Town wishes to correct a number of

factual misstatements in Petitioner's brief, as follows:

1. The evidence at trial supports the

conclusion that commercial mining

began on site not earlier than 1947, not

eighty-five years ago (Petitioner's Brief, p.

2) or “around the turn of the century

(1900)” as alleged (App. B: p. 10a).

As part of the Town’s landfill capping

procedure, the Town contracted with an

independent contractor to supply

materials and did not, as_ alleged,

contract with the Petitioner for this

purpose. That contractor purchased at

least some of the sand and gravel for the

project from the Petitioner (App. B: p.

10a).

Contrary to Petitioner’s brief, the trial

court did not find the 1929 zoning by-

law unconstitutional. Rather, he found

4 Rule 27.1 (a) of the Massachusetts Rules of Appellate

Procedure states in part: “Application; When Filed; Grounds.

Within twenty days after the date of the rescript of the Appeals

Court any party to the appeal may file an application for leave to

obtain further appellate review of the case by the full Supreme

Judicial Court. Such application shall be founded upon

substantial reasons affecting the public interest or the interests ‘of

justice ...”

8

that it “runs afoul of the zoning enabling

act of the era.”"(App. B: p. 15a).

Petitioner alleges, in essence, the mental

incompetence of trial counsel (Attorney

Downes). Respondent points out that

trial counsel engaged in a three-day trial

and competently brought forth many

issues for the court's consideration. Trial

counsel then prepared an extensive brief

for the Commonwealth's Appeals Court

and joined present counsel in argument

there. In the meantime, present counsel

entered a general appearance before the

Appeals Court and never raised the issue

of trial counsel's alleged incompetence by

way of appropriate motions until

submitting a written request for a re-

hearing submitted to a single justice of

the Appeals Court.

Petitioner alleges that two disinterested

witnesses whose affidavits are before this

Court document pre-1929 commercial

activity on site and the brief suggests

that one of the individuals at one time

occupied an official position apparently

with the Respondent Town (Petitioner's

Brief, p. 4). In fact, an examination of

retivoner’s affidavits reveals no support

tor this latter representation.

Additionally, the affidavits are very

general and provide no illumination as

the location or extent of any mining

operations supposedly observed by these

alleged witnesses. Additionally, there is

no showing or allegation that these

individuals were unavailable, unknown,

and/or not susceptible of identification

before trial.

9

Petitioner alleges that all commercial

uses on the property are precluded by

the Appeals Court decision and the

decision amounts to an_ inverse

condemnation. The baid statement is

unsupported by any expert engineering

or appraisal data. There is no evidence

offered as to suitability of the property

for the permitted uses that include the

single-family residential use.

REASONS TO DENY THE PETITION

There is no federal question whatsoever presented

nor has Petitioner shown any compelling reason to

grant the Petition.

5. The Decisions Of The Supreme Judicial

Court And Appeals Court Of The

Commonwealth Of Massachusetts Are

Entitled To A High Degree Of Deference.

The narrow question before this Court is whether

the Supreme Judicial Court of Massachusetts

appropriately exercised its discretion in denying an

Application for Further Appellate Review (FAR) filed

almost three years after the decision of the

Commonwealth's Appeals Court. This Court has long

and consistently ruled that it will not upset a lower

court decision if it was properly within the reasonable

exercise of the lower court's discretion. See Cheang-

Kee v. United States, 70 U.S. 320 (1865) where the

Court noted at page 326 that *... matters wholly

within the discretion of the Circuit Court ... are not

reviewable here.”

10

The granting of a FAR Application

must be founded upon substantial

reasons affecting the public interest

or the interests of justice.

The decision to grant a FAR application is a

discretionary function of Court5.

Rule 27.1 of the Massachusetts Rules of Appellate

Procedure makes it clear beyond debate that, in order

for a FAR application to be granted, the questions

presented must conjure judicial visions of matters

that are truly consequential for the public interest or

are vital to the interests of justice. The Supreme

Judicial Court is in the best position to determine

whether this test has been met and the denial of the

application without comment speaks loudly to the

Court’s negative conclusion.

5 As the 1973 Reporter's Notes to Massachwusetts Rules of

Appellate Procedure Rule 27.1 observe, “Further review is

analogous to the granting of certiorari by the Supreme Court of the

United States.” Granting of an application for further appellate

review requires a vote of three justices of the Supreme Judicial

Court (Mass. R. App. P. 27.1{e)).

1]

B. Whether ruling on the merits or on

the Petitioner's procedural lapses, the

Supreme Judicial Court exercised its

FAR discretion reasonably.

1. Substantively, the validity of a

zoning enactment in

Massachusetts that breaks an

entire town into two zoning

districts, business and

residential, is well settled and

in accord with the Appeals

Court decision in this matter.

This is nothing more than a garden-variety zoning

case. The Town's 1929 by-law classified the entire

town into either a business or a residential district.

Then-existing business property was zoned business.

The balance of the Town was zoned residential.

In ruling that the 1929 enactment was legal and in

rejecting Petitioner's claim of spot-zoning, the State

Appeals Court followed a well-established line of

precedent in the Commonwealth. See Gage ov.

Egremont, 409 Mass 345, 566 N.E. 2d 1597 (1991)

where a zoning by-law remarkably similar to

Barnstable’s 1929 by-law was upheld by the Supreme

Judicial Court. In rejecting further review of the

Appeals Court decision on the merits of this action,

the Supreme Judicial Court was not venturing into

uncharted waters and was well within precedent to do

so.

Petitioner's attack on the town’s 1929 zoning

enactment is further hobbled because it presented no

credible evidence to the Trial Court regarding its pre-

1929 commercial activities, either because it had none

or because it chose to focus on the 1956 zoning

amendment and subsequent on-site activity. See

Petitioner's comment on its choice of tactics as

12

contained in its brief in support of its application for

FAR, attached and discussed in footnote 2, above.

This tactical trial decision was made at Petitioner's

peril and compelled the trial court to rule that this

virgin land was partially converted to commercial

activities not earlier than 1947. This finding of fact is

absolutely fatal to Petitioner’s claim that it can mine

its entire property, not just the five acre site.

There was nothing presented to the Supreme

Judicial Court on the merits that would require a

finding that matters presented were vital to the public

interest or that would affect the interests of justice.

Given the high bar set for the granting of a FAR

application, the Supreme Judicial Court was not only

well within the limits of its discretion in rejecting the

application, but was virtually required to do so.

2. Procedurally, rejecting a FAR

application presented two years

and nine months ate _ is

certainly within the proper

exercise of the Supreme

Judicial Court's discretion.

Procedurally, either a late FAR application to the

Supreme Judicial Court or a late motion for re-hearing

presented to the Appeals Court would be fatal to

Petitioner’s claim.

Here, the more deadly lapse involves Rule 27.1 of

the Massachusetts Rules of Appellate Procedure. It

requires that an application for FAR be filed with the

Supreme Judicial Court within twenty (20) days of a

decision of the lower Court. See footnote 3, above.

This FAR petition was filed, not twenty days, but two

years and nine months after the decision on the merits

of the case by the Appeals Court.

13

While Petitioner argued before the Supreme

Judicial Court in its FAR Application that successor

counsel (an Attorney Joseph Runci) did nothing

(including filing an appearance as successor counsel)

before Runci'’s untimely death, and now continues to

argue that his co-counsel (Attorney Downes) did

nothing because of incapacity, Petitioner ignores the

fact that its current counsel remained counsel of

record before the Appeals Court, that current counsel

had announced his intention to file a FAR application

well before the Appeals Court had finally ruled on the

case, and that current counsel filed nothing to elicit

support from the Supreme Judicial Court to extend

the FAR filing deadline for thirty-three months.

If there was ever a textbook example of a self-

inflicted procedural wound that is, will always be, and

should be fatal, this case is a prime example of it. On

this reason alone, Massachusetts’ highest court was

well within the limits of its discretion in denying the

FAR application.

3. Procedurally, a late motion for re-

hearing with the State Appeals

Court would justify both the

Appeais Court denial of the motion

and the refusal of the Supreme

Judicial Court to further review

the matter.

If the focus of review is on the Supreme Judicial

Court's affirmation of the Appeals Court denial of

Petitioner's Motion for Re-hearing, the result is and

should be the same.

In the Appeals Court action, Petitioner's current

counsel filed a request to a justice of the state Appeals

Court to extend the time for filing a petition for re-

hearing. This request was allowed and gave the

14

Petitioner more than three weeks to file its motion

with a date-certain for filing specified in the order.

As the Appeals Court docket makes so painfully

clear, Petitioner then missed the filing deadline by one

day. Without moving the Court to further extend the

deadline and without explanation for the delay,

Petitioner nevertheless filed its Motion for Re-hearing.

To no one’s surprise, save only that of the Petitioner,

the motion for re-hearing was denied without

explanation or comment.

Once again, in tacitly accepting the Appeals Court

ruling, Massachusetts’ highest court would be and

was well within the limits of its discretion in denying

the FAR application.

Based on either the substantive or procedural

conclusions that Respondent respectfully argues

should be drawn at this point, this Court's inquiry

ought not to proceed further. The Petition for Writ of

Certiorari is without merit and should be denied

without further inquiry.

However, because Petitioner raises other ancillary

issues in its brief, Respondent will offer the following

observations.

II. Petitioner's Demand Amounts To A Motion

For A New Trial. It Is Seven Years Late And

Unsupported.

Rule 60(b) of the Massachusetts Rules of Civil

Procedure discusses the granting of new trial. A

6 In relevant part, Rule 60(b) notes, “On motion and upon such

terms as are just, the court may relieve a party or his

representative from a final judgment ... for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2)

newly discovered evidence which by due diligence could not have

been discovered in time to move for a new trial under Rule 59 (b);

... (6) any other reason justifying relief from the operation of

15

motion for relief from judgment or order is addressed

to the trial judge’s discretion and is generally not

reviewable except for a clear abuse of discretion. See

Reporter's Notes - 1973, citing Farmers Co-operative

Elevator Association v. Strand, 382 F.2d 224 (8 Cir.

1978).

Thus, a motion to set aside the judgment for

“excusable neglect” or for “newly discovered evidence”

should have been presented to the trial judge within

one year of entry of judgment. Petitioner offers no

explanation as to why such a motion could not have

been filed with the trial judge in this time frame. To

ask for a new trial now is untimely and not presented

to the appropriate court.

A. There is no record to support the

assertion that “new” evidence offered

by affidavit could not have been

discovered before trial.

As the Reporter notes, “The movant bears the

burden of showing that the evidence could not have

been discovered by due diligence in time to move for a

new trial under Rule 59(b)” quoting Flett v. W.A.

Alexander & Co., 302 F. 2d 321, 324 (7 Cir.), cert.

denied 371 U.S. 841, 83 S. Ct. 71, 9 L.Ed.2d 77

(1962):

“Rule 60(b) provides for extraordinary

relief and may be invoked only upon a

showing of exceptional circumstances.”

As the affidavits presented in the _ record

demonstrate, both affiants are life-long residents of

Cape Cod and presumably were available to trial

the judgment. The motion shall be made within a reasonable

time, and for reasons (1), (2), and (3) not more than one year after

the judgment ... was entered...” (Emphasis provided.)

16

counsel before and during the trial of this action.

Certainly, there has been no demonstration in the

record that Petitioner was excusably ignorant of the

existence of this evidence. Brown v. Penn. R.R., 282

F.2d 522 (34 Cir. 1960), cert. denied 365 U.S. 818, 81

S. Ct. 690, 5 L.Ed.2d 696 (1961).

B. Even if timely presented, the “new

evidence” proffered in affidavits would

not support a motion for new trial.

In requesting a new trial, the Reporter notes that

Petitioner must show that “the evidence must be of a

material nature and so controlling as probably to

induce a_ different result”, citing Giordano ov.

McCartney, 385 F.2d 154 (3 Cir. 1967).

Here, the trial court found that site-specific

testimony showed that the property was virgin land in

1947. And an aerial photograph from 19567 is in stark

contrast to the vague recollections and generalizations

of affiants who are now aged 87 and 91 whose

recollections were formed between ages 6 to 10 (App.

D, Rennie affidavit) and at age 5 (App. E, Ellis

affidavit). And neither affidavit expressly ties the

observations to a specific parcel of land, or any

specific portion thereof.

Additionally, it can hardly be said that the affidavits

would outweigh the photographic evidence before the

trial court, evidence that directly contradicts the

substance and implications of these affidavits. The

Giordano standard has not been met and these

affidavits are insufficient to support a motion for new

trial.

7 The trial court refers to this photo as a 1964 photo (Trial

Exhibit 25) although it was actually taken in 1956. See Appendix

B, Page 8a, Finding number 6. The Town's motion to correct the

record was not acted upon.

17

Incompetence of Trial Counsel: Even

with no express time constraints to

raise this matter, the trial judge has

never been asked to do so.

While motions for new trial based on newly

discovered evidence or excusable neglect face a one

year time restriction, a Rule 60(b)(6) motion asking for

a new trial for “Any other reason justifying relief

from the operation of the judgment” has no such

time limit. It must be presented simply within a

“reasonable time”.

Relief from judgment based on trial counsel's

alleged disability would certainly be cognizable and no

doubt reviewed by the trial judge with concern, if not

sympathy, under Mass. R. Civ. P. Rule 60(b)(6).

Inexplicably, Petitioner has never broached the

subject of trial counsel's alleged incapacity with the

trial judge, choosing instead to ask appellate courts

for that relief. Obviously, the trial judge would have

been in the best position to have observed trial

counsel's demeanor and competence. Nevertheless in

spite of, or perhaps precisely because of, the trial

judge’s vantage point, Petitioner has avoided asking

for Rule 60(b)(6) relief altogether.

Nor has Petitioner presented any expert medical

evidence by affidavit or otherwise that supports the

allegation that counsel was medically disabled prior to

or during trial.

Finally, it should be observed that if trial counsel

was not disabled until some time post-trial,

subsequent disability while regrettable would not per

se be a basis for reopening the trial.

On the state of the record, one can only guess at

the state of trial counsel's health at any point in time.

When being asked to overturn the decisions of both a

trial court and an appeals court for such an

18

extraordinary reason, both this Court and the

Supreme Judicial Court are entitled to a far more

robust record on the subject than presented here.

III. Neither Enactment Nor Enforcement Of A

Valid Zoning Ordinance Is A Taking.

A. Adopting town-wide zoning that

prohibits certain activities is clearly a

permissible undertaking.

By their very nature, zoning enactments allow some

activities and deny, restrict, or condition other

activities. See Penn Central Transportation Co. v. New

York City, 438 U.S. 104 (1978).

The fact that certain uses within a given zone may

be eliminated or constricted does not give rise to a

claim for condemnation as long as there are some

activities and associated inherent value to which the

property can still be put. See Village of Euclid, Ohio v.

Amber Realty Co., 272 U.S. 365 (1926); Daddario v.

Cape Cod Commission, 425 Mass. 411 (1997).

B. Affirming the ban of commercial

activities on locus is neither a taking

nor an inverse condemnation.

Here, Petitioner apparently claims (Petitioner's

Brief, p. 7) that the decisions of the Massachusetts

Courts, when applied to Petitioner's property, work to

effectively produce an inverse condemnation. At least

as described in Petitioner's brief, it is not an action of

the municipal Respondent that is objected to, but

rather the effect that the judicial process will have on

Petitioner's land that is problematic.

The axiom, “no action, no taking”, applies. The fact

that Petitioner's illegal use of the property is declared

19

illegal, combined with the fact that Petitioner has

supposedly destroyed its property such that only

illegal use of locus will render value to Petitioner, is

neither the Town's responsibility nor a compensable

event.

C. The taking claim is not ripe because

there has been neither pursuit nor

denial of just compensation.

In an action where inverse condemnation is

claimed, it is incumbent upon the property owner to

pursue available remedies for just compensation.

Otherwise, a constitutional claim will be deemed

premature. Williamson County Regional Planning

Commission v. Hamilton Bank, 473 U.S. 172 (1985).

Massachusetts has such a process and that

process has been found to be adequate. Marietta

Realty, Inc. v. Springfield Redevelopment Authority,

902 F. Supp. 310 (D. Mass. 1995).

Having failed to pursue compensation,

Petitioner's constitutional claims should not lie.

D. It is factually untrue that Petitioner

has no other uses for its property.

Petitioner’ brief asserts (Brief, p. 7) that it has no

practical ability to use its property unless allowed to

mine it in violation of applicable zoning. That

assertion is simply inaccurate.

As a matter of right, current zoning allows

Petitioner to use the property as a single lot for single

family housing. Even with some costs for restoration

and landscaping (made necessary only because of

Petitioner’s rapacious use of the land), a sixteen acre,

single family lot on Cape Cod today is worth a small

20

fortune. There has been no demonstration by

Petitioner at any level of the proceedings to support

the bald claim that restricting use of the property to

residential renders it worthless.

Additionally, existing permits allow some

commercial use of locus. The fact that the permits

have a limited life does not mean that they cannot be

fully enjoyed at the present time.

E. Petitioner has not pursued. or

exhausted its range of remedies that

would infuse value into its property.

Petitioner has never attempted to _ explore

alternative administrative or legislative relief with the

Respondent Town. With more than sixteen acres

available to be subdivided and sold off, there has been

no effort to do so. The inherent value of real property

on Cape Cod in general, and perhaps to abutters in

particular, remains unexplored.

As mentioned previously, the property enjoys the

benefit of permits that allow some commercial activity

at locus. No attempt to extend or modify these permits

for other uses has been explored. Other development

options that need not be explored here are also

potentially available. See Palazzolo v. Rhode Island,

533 U.S. 606 (2001); see also MacDonald, Sommer &

Frates v. County of Yolo, 477 U.S. 340, 348 (1986)

where the Court noted the need to exhaust

administrative remedies to determine whether a

regulation amounted to a taking, and said, “A court

cannot determine whether a regulation has gone ‘too

far’ unless it knows how far the regulation goes.”

Petitioner's lack of initiative and imagination do not

equate to a denial of any practical use of the property.

21

CONCLUSION

The Petitioner has achieved the dubious

accomplishment of having so badly and _ illegally

managed its land that Petitioner now asserts the

property is no longer suitable for its one legal use,

single-family residences. If that were not enough,

Petitioner now seeks to have the Town compensate it

for its own mis-management. One is reminded of the

old saw about the child who, having dispatched his

parents, now claims the court's mercy because he has

recently been orphaned.

There is simply no Federal issue presented that has

not been thoroughly resolved for years nor are there

any other compelling reasons to grant this Petition.

There comes a time when a case needs to be finally

resolved; in this action, that time is long past.

Therefore, the Respondent respectfully requests that

this Petition be denied.

Respectfully submitted,

ROBERT D. SMITH, Town Attorney,

Counsel of Record

T. DAVID HOUGHTON,

First Assistant Town Attorney

CHARLES S. McLAUGHLIN, Jr.

Assistant Town Attorney

RUTH J. WEIL

Trial Counsel

TOWN OF BARNSTABLE

367 Main Street, New Town Hall

Hyannis, Ma. 02601-3907

908-862-4620; 508-862-4724 Fax

June 2006

APPENDIX TABLE OF CONTENTS

APPENDIX A

Letter to Supreme Judicial Court from

Attorney James W. Stathopoulos,

dated December 11, 2002 ...........

APPENDIX B

Appellant's Motion to Enlarge Time filed

with the Appeals Court, dated

CF, Ie onic akacdvdccsesssnsicncds

APPENDIX C

Barnstable Superior Court Docket

BREESE REP eye Pe NCR EERE Bi

APPENDIX D

Appeals Court Docket Entries ...... sdenabiile

APPENDIX E

Supreme Judicial Court Docket Entries

APPENDIX A

Law Offices of

James W. Stathopoulos

All Correspondence to:

METRO NORTH

MAPLE STREET-ROUTES 128 @ 93

STONEHAM, MASSACHUSETTS 02180

TEL (781) 438-3661 FAX (781) 438-3205

METRO BOSTON

40 BROAD STREET, SUITE 805

BOSTON, MASSACHUSETTS 02109

TEL (617) 423-0001 FAx (617) 423-0009

METRO SOUTH-CAPE COD

MERCHANT SQUARE

SANDWICH, MASSACHUSETTS 02563

TEL (508) 888-0404 FAx (508) 833-0303

RECEIVED

DEC 26 2002

TOWN ATTORNEY

TOWN OF BARNSTABLE

December 11, 2002

Susan Mellen, Clerk

Supreme Judicial Court

1300 New Court House

Pemberton Square

Boston, MA 02108

RE: Gifford Brothers Sand and Gravel, Inc. v.

Zoning Board of Appeals of Barnstable No.

2000-P-0701

Dear Ms. Mellen:

I received the Appeals Court decision in the above

referenced matter on Tuesday, November 19, 2002 at

my Boston office on Broad Street, the same address

that I provided to the Appeals Court on the

intake/appearance form provided to me on the day of

argument. The decision had multiple postmarks and

had been addressed to a Hyannis office that I had

used thirteen years ago.

The Appeals Court (see attached Notice of Docket

Entry) has allowed my Motion to Enlarge Time (also

attached).

I am writing to confirm the above because at this time

it is my intent to file a Rule 27 petition for rehearing

and a Rule 27.1 application for further appellate

review. In order to properly comply with the

requirements of said rules, I will require additional

time in which to file the complete application for FAR.

Having just received a copy of the transcript and briefs

in this matter and with the upcoming holiday season

and four school age children, I cannot see how I could

possibly file the application prior to January 15, 2003

and intend to file same along with a Motion to Enlarge

Time therefore, on said date.

I appreciate your assistance herein.

Sincerely,

James W. Stathopoulos

JWS/jw

CC: Ruth J. Weil, Esquire, Gregory M. Downs, Esquire

3a

APPENDIX B

COMMONWEALTH OF MASSACHUSETTS

BARNSTABLE, SS.

APPEALS COURT DOCKET #2000-P-0701

(SUPERIOR COURT DOCKET #98-87)

eeenenenaenegeegegeer eee eK Hee EK KH

GIFFORD BROTHERS

SAND & GRAVEL, INC.,

APPELLANT

V.

TOWN OF BARNSTABLE

ZONING BOARD OF APPEALS,

APPELLEE

eee eK K ERE CK KEE

ie, er oe a a oe Ot ee

APPELLANT'S MOTION TO ENLARGE TIME

Now comes GIFFORD BROTHERS SAND & GRAVEL,

INC., Appellant herein, and moves that this Court

allow Appellant to enlarge the time for filing a MRAP

Rule 27.1 Application for Further Appellate Review.

As grounds herefor the Appellant states as follows:

1. Appellant’s original Counsel Gregory Downs,

Esquire, the attorney who actually tried the

case in the Barnstable Superior Court, filed

an appeal of the Superior Court Justice’s

decision which permitted Appellant to use

only a portion of his property for commercial

purposes.

Mr. Downs appealed that decision seeking a

ruling that the entire property’ be

commercially utilizable.

4a

At the time of the trial and clearly by the

time of the appeal to the Appeals Court Mr.

Downs had been and is still suffering from a

debilitating illness and is no longer able to

practice law.

Christopher Keyes, President of Appellant

Gifford Brothers prevailed upon Attorney

James Stathopoulos, to assist Appellant and

Mr. Downs by filing a Petition for Rehearing

with the Appeals Court. Mr. Stathopoulos

did so but without the benefit of Mr. Downs’

files or assistance both of which were

unavailable at the time, and the petition was

denied.

Mr. Stathopoulos, upon the receipt of the

notice of denial of the Petition for Rehearing

attempted to file a request to enlarge time for

the filing of an Application for Further

Appellate Review but was informed by the

Clerk’s Office that such motions are not

accepted except when _ simultaneously

accompanied by the actual Application FAR

itself.

Mr. Stathopoulos informed Appellant of the

above and Appellant then retained successor

counsel, Joseph Runci, Esquire for the

purpose of filing the Application for FAR.

Attorney Runci informed Appellant that

Runci had requested case files from Attorney

Downs.

Mr. Downs, _ suffering from mental

difficulties, initially provided nothing,

procrastinated for months and avoided

communication.

5a

Benjamin Losordo, Esquire (Attorney Downs’

former partner) though himself plagued by

serious health problems (requiring multiple

oncology-related hospitalizations and who is

at this time in-patient at Brigham & Womens

Hospital) was at that time still able to assist

Mr. Downs in the process of locating

Appellant's files in this matter.

Attorney Losordo, who has filed an affidavit

in support of this motion attached hereto as

Exhibit A, went to Mr. Downs’ home on

several occasions and eventually compiled a

box containing what is believed to be the

bulk of Appellant's files.

Mr. Lorsordo turned over possession of the

said files to Appellant's successor Counsel,

Joseph Runci, Esquire.

Appellant was under the assumption that

Attorney Runci had filed an Application for

FAR. Awaiting a decision, the Appellant has

continued to operate his facility at the locus

under the terms of the trial Judge’s order

and has done so with the full knowledge of

the Appellee.

What work Attorney Runci (who at the time

was leasing space in an office suite owned by

Attorney Shaun M. Ellis in Sandwich, MA)

actually performed, if any, is unknown.

On September 29, 2003, Attorney Ellis’ wife

and an employee both discovered Attorney

Runci deceased, and locked in his office. As

a result Ellis’ office operated on a limited

basis for several months until the attorneys

and other staff were able to recover from the

shock of what had occurred.

16.

17.

18.

19.

6a

In July of this year after returning from a

week's vacation Attorney Ellis discovered

that his office condominium had been

flooded. As a result of the cleanup that

ensued Mr. Ellis discovered a box of files in

the storage area of the cellar of his office that

appeared to have been the box that was

provided by Attorney Losordo to Attorney

Runci. Mr. Ellis saw that Appellant’s name

was on some of the documents and

contacted Appellant. Attached hereto as

Exhibit B is Mr. Ellis’ Affidavit.

Appellant directed Mr. Ellis to contact

Attorney Stathopoulos and turn over the

documents to Stathopoulos. The documents

had an extremely high degree of water

content and the vast majority were stuck

together and very difficult to decipher.

Attorney Stathopoulos reviewed the contents

of the box provided to him and came to the

conclusion that the documents contained

therein comprised the files that Mr. Downs

had used at the time of the trial of this

matter. There were no appellate documents

of any kind.

Attorney Stathopoulos informed Appellant of

these facts and Appellant requested that

Attorney Stathopoulos file this Motion to

Enlarge Time and the accompanying

Application FAR.

The gravamen of the case is whether ongoing

commercial operations at the locus owned by

Appellant pre-existed Appellee’s 1929 zoning

ordinance.

20.

21.

22.

23.

2%.

25.

7a

The trial judge, a long-time attorney and

resident of Cape Cod and a person himself

familiar with the area of the locus found that

there was a valid existing commercial use.

Attorney Downs had informed Appellant that

the trial judge had suggested pre-trial that

the Judge was not as concerned with the

commercial status of the property circa 1929

but was more focused on the question of the

type of commercial activity circa 1956, (a

time when Appellee had enacted an even

more comprehensive zoning ordinance/map)

so that the Judge could make a

determination regarding what portion of the

locus on which he would allow certain uses.

Both trial attorneys and the Court therefore

focused on the nature of the operations in

place circa 1956 and not much evidence, for

or against, was adduced by either party as to

the status quo circa 1929. Moreover the trial

Judge found the 1929 ordinance to be

constitutionally defective.

The Appeals Court however, eventually

determined the 1929 ordinance to be valid.

Appellant has researched and investigated

the availability of living witnesses to

corroborate the commercial operations

ongoing at the locus (which was at one point

comprised of land in both Barnstable and

Sandwich) prior to the 1929 act.

Appellant has located Robert Ellis, a resident

of Sandwich and a former Chairman of the

Board of Health for that town (having been a

member of the Board for over thirty years),

who clearly remembered _ substantial

26.

a4;

28.

29.

30.

8a

commercial operations at the locus, from

1924 to the present time. Robert Ellis’

affidavit is attached to the Appellant's

Application for FAR filed herewith.

Appellant also located Francis Rennie, a

resident of the Town of Barnstable, who

remembered substantial commercial

operations at the locus since 1920 and who

also knew the owner of the locus at the time

of the Appellee’s 1929 zoning enactment.

Francis Rennie’s affidavit is attached to the

Appellant's Application FAR filed herewith.

It now appears that there are additional

octogenarians who are of sound mind and

good memory that will be able to corroborate

the testimony of Mr. Rennie and Mr. Ellis.

Current counsel -is working diligently to

compile a list of additional affiants who can

testify to ongoing commercial operations at

the locus pre-1929 to present.

The trial Judge found the commercial

operations at the locus to be continuous and

ongoing for his purposes.

There appears to be absolutely no doubt: that

the subject locus had ongoing and valid

commercial uses pre-existing the Appellee’s

1929 ordinance.

Were the Appellee to argue that this

information is untimely the Appellant would

suggest (a) the extreme incapacity and/or

death of two of Appellant’s prior attorneys

should not be held against Appellant; (b) no

party is prejudiced; (c) there are a significant

number of living eye-witnesses that can

corroborate the existence of pre-existing

9a

commercial uses and (d) it would be unjust

to deny the obvious truth of all of the above

and allow clear error to become law.

31. It appears that justice would require the

consideration of the Appellant’s Application

for Further Appellate Review coterminously

filed herewith. The enlargement will allow

the truth to come out and give Counsel the

means to adequately and properly present

the Appellant’s issues to the Court.

Wherefore the Appellant request that this Court

allow Appellant to enlarge the time for filing a MRAP

Rule 27.1 Application for Further Appellate Review.

Respectfully submitted,

/s/ James W. Stathopoulos, Esquire

BBO#477480

Attorney for Appellant

43 Kingston Street

Boston, MA 02109

(617) 423-0001

Dated: October 7, 2005

10a

APPENDIX C

GIFFORD BROTHERS SAND AND GRAVEL, INC.

VS. J

ZONING BOARD OF APPEALS,

TOWN OF BARNSTABLE

Sandwich

$185 paid

$50 PI paid

Commonwealth of Massachusetts

Barnstable, SS

———Superior Court for Civil Business

Counsel for Plaintiff

Gregory M. Downs

Losordo & Downs

P.O. Box 1637

78 Route 6A

Sandwich 02563 24

(508-888-6067)

Counsel for Defendant

Robert D. Smith

Ruth J. Weil

Town of Barnstable

367 Main Street, New Town Hall

Hyannis, MA 02601-3907

790-6280

ACTION AND DEMAND

Zoing Appeal/Declaratory J udgment

1998

Feb. 9, No. 1 - Complaint

lla

Feb. 9, No. 2 —- Plaintiffs statement pursuant to S.C.

Rule 29

Feb. 20, No. 3 - Plaintiffs affidavit of notice pursuant

to G.L. c. 40A, § 17

March 20, No. 4 - Appearance of Robert D. Smith and

Ruth J. Weil for defendant

Oct. 15, No. 5 - Defendant's motion for preliminary

injunction, memorandum in support, with affidavits in

support

Oct. 15 - Order of notice issued returnable on October

22, 1998

Oct. 22, No. 6 —- Defendant's affidavits (2) in support of

#5

Oct. 22, No. 7 - Plaintiffs memorandum in opposition,

with affidavits (2) in support of opposition of #5

Oct. 22 - Motion #5 allowed in accordance with

paragraph one only to the description of property, by

the Court, O’Neill, J.

Oct. 22, No. 8 - Interlocutory order on preliminary

injunction, by the Court, (O'Neill, J.) (copy to attys.)

Dec. 16, No. 9 ~ Pre-trial conference scheduled for

February 3, 1999, at 2:00 p.m., by the Court, Connon,

J. (copies to atts.)

1999

Feb. 3, No. 10 - Pre-trial orde--joint pre-trial memo.

filed; case assigned for trial on April 27, 1999, at 9:00

a.m.; by the Court, Connon, J. (copy to attys. 2/5/99)

12a

March 31, No. 11 — Defendant's motion in limine with

statement of reasons to exclude testimony of expert

witnesses in support, plaintiffs opposition

April 27, No. 12 — Abutters motion to intervene as

party defendants filed and denied, by the Court,

Nickerson, J.

27, No. 13 — Trial without jury (Nickerson, J.)

27, No. 14 - Defendants’ motion for view filed and

allowed, by the Court, Nickerson, Jr.

25, No. 15 — Findings of fact, rulings of law, by the

Court, Nickerson, J. (copies to attys.)

April 27, No. 16 - Defendants’ request for findings of

fact and rulings of law

July 21. No. 17 - Judgment on findings by the Court

(copy to attys.)

26, No. 18 - Plaintiffs motion to reconsider, alter or

amend judgment with opposition

August 2 - Motion #18 denied without prejudice, S. C.

rule 26: Arthur D. Little Inc. v. East Cambridge

Savings Bank 35 Mass. App. 734, 742; by the Court,

Nickerson, J. (copy to attys. 8/5/99)

“ 9, No. 19 - Plaintiffs motion to reconsider, alter or

amend judgment with opposition and _ deft’s

memorandum in support of opposition

“ 17 - Motion #19 denied, without prejudice, S. C.

Rule 26: Arthur D. Little Inc. v. East Cambridge

Savings

“ 10, No. 20 - Plaintiffs notice of appeal (Mr. Justice

Nickerson notified and copy to atty —- 10/21/99)

13a

“16, No. 21 — Defendant's notice of appeal (Mr. Justice

Nickerson notified and copy to atty. 10/21/99)

November 15, No. 22 ~ Complaint for contempt,

affidavit in support

November 17 - Summons to issue ordering plaintiff to

appear for the purpose of holding a hearing on the

merits of the contempt complaint, returnable at

Barnstable, Wednesday, November 24, 1999, at 2:00

p.m., by the Court, Nickerson, Jr.

November 17 - Summons on complaint issued

December 12, No. 23 - Plaintiffs certificate re ordering

transcript

December 19, No. 24 — Defendant's certificate re not

ordering transcript

December 23, No. 25 - Civil contempt summons

returned with service made on plaintiff and

Christopher Keyes on Nov. 18, 1998

December 23, No. 26 —- Answer to contempt complaint

by Christopher Keyes, President of plaintiff

corporation by Gregory M. Downs

December 23, No. 27 —- Contempt hearing (Nickerson,

J.)

Findings on contempt hearing on record

December 24, No. 28 —- Judgment on contempt (cop.

to attys.)

2000

January 8 - No. 29 - Transcript of testimony (1

volume)

March 28, No. 30 - Transcript of testimony (2

volumes) ;

April 10 — Attorneys and Clerk of the Appeals Court

notified record assembled in accordance with

Appellate Rule 9.

A true copy, Attest:

/s/ Phyllis A. Day, Clerk

Neen eeeeeeeeeeee eee

15a

APPENDIX D

APPEALS COURT

Panel Cases

Case Docket

GIFFORD BROTHERS SAND & GRAVEL vs.

BARNSTABLE ZONING BD. OF APPEALS TOWN OF

2000-P-0701

CASE HEADER

Case Status Closed: Rescript issued

Nature Zoning appeal: c40A

Sub-Nature declaratory judgment

Appellant Both Plf & Deft i

Brief Status

Panel Gelinas, Kantrowitz, Doerfer, JJ.

Citation 56 Mass. App. Ct. 1105

Lower Court Barnstable Superior Court

Lower Ct Judge Gary A. Nickerson, J.

Status Date 12/27/2005

Entry Date 04/20/2000

SJ Number

Case Type Civil

Brief Due

Argued/Submitted 04/10/2002

Decision Date 10/28/2002

TC Number 98-87

TC Entry Date 02/09/1998

ADDITIONAL INFORMATION

FAR docket number is FAR-15086.

*

/

16a

INVOLVED PARTY

Gifford Brothers Sand & Gravel

Plaintiff/ Appellant

Blue brief & appendix filed

3 Extensions, 127 Days

ATTORNEY APPEARANCE

Gregory M. Downs, Esquire

James W. Stathopoulos, Esquire

INVOLVED PARTY

Barnstable Zoning Bd. of Appeals Town of

Defendant/Appellee

Red brief filed

1 Extension, 27 Days

ATTORNEY APPEARANCE

Ruth J. Weil, Esquire

DOCKET ENTRIES

06/01/2000 - **** Cross Appeal ****

10/04/2000 —- Briefs located in Room 952: Cab 1;

shelf 1.

04/20/2000, #1 - Entered.

05/30/2000, #2 - Motion to docket cross-appeal late,

filed by Gifford Brothers Sand & Gravel.

05/30/2000, #3 - MOTION to extend brief & appendix

due date, filed by Barnstable Zoning Bd. of Appeals

Town of:

06/01/2000 - RE#2: The motion to docket the appeal

late is allowed and the appeal of the plaintiff is entered

this date. Pursuant to Mass.R.A.P. 16(i), the plaintiff

= ~ a —_ . _ — ~ - - —

17a

shall be deemed the appellant unless the parties

otherwise agree. A~vellant’s brief & appendix are due

6/30/00. (Lenk, « Notice.

06/02/200 — RE:#3 See this court’s action of

6/1/2000 on paper #2. *Notice.

06/05/2000, #4 - Response to #2, filed by Barnstable

Zoning Bd. of Appeals.

06/08/2000 — RE#4: The within is treated as a motion

for reconsideration and is denied. (Lenk, J.) *Notice.

06/21/2000, #5 - Joint motion to enlarge time for

filing briefs.

06/21/2000 —- RE#5 The appellant shall file the brief

& appendix on or before 8/29/00. No further

enlargements. The appellee’s request for enlargement

is denied without prejudice to refiling after the

appellant files the brief & appendix. Notice.

09/08/2000, #6 - Letter from Atty Weil re: Status of

case.

09/08/2000 — RE#6 The time period for appellee’s due

date does not begin to run until the appellant's brief &

appendix are accepted & docketed. Notice.

09/21/2000 — Notice preceding dismissal: Rule 17A.

10/04/2000, #7 - MOTION to extend conforming brief

& conforming appendix due date, filed by Gifford

Brothers Sand & Gravel, Inc.

10/04/2000 —- RE#7: Allowed to 10/04/2000. *Notice.

10/04/2000, #8 — SERVICE of brief & appendix for

Plaintiff/Appellant Gifford Brothers Sand & Gravel (2

vols appx and 1 vol exhibits).

18a

10/10/2000, #9 - RESPONSE to paper #7 filed by

Zoning Board of Appeals, Town of Barnstable.

10/16/2000, #10 — MOTION to extend brief due date

of Town of Barnstable Zoning Bd. of Appeals.

10/20/2000 - RE#10: Extension to 11/30/2000

- granted for filing of brief of Barnstable Zoning Bd. of

Appeals Town of, Defendant/Appellee. Notice to

counsel.

10/20/2000 - RE#9 Treating the within as a motion

to strike pages E5 and E6 of the appellants’ Exhibit

volume for the reason that the documents are not part

of the record below and to correct the date on pages

E23 and E24 from 1955 to 1968, it is referred to the

panel assigned to decide the appeal. *Notice.

11/30/2000, #11 - SERVICE of brief for

Defendant/Appellee Barnstable Zoning Bd. of Appeals

Town of.

03/19/2002, #12 - Notice of 04/10/2002, 9:30 A.M.

argument sent.

03/21/2002, #13 - Letter pursuant to MRAP 16())

filed by Barnstable Zoning Bd. of Appeals.

04/10/2002 - Oral argument held. (GS KN DO).

10/28/2002 - RE#9 (Revised Action). Allowed.

(Gelinas, Kantrowitz, Doerfer, JJ.) *Notice.

10/28/2002, #14 - 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 “1956.” As so modified, the

judgment is affirmed.” *Notice. (See image on file.)

19a

11/18/2002 - Mail to Atty Stathopoulos returned -

resent to new address.

11/25/2002 —- RESCRIPT to Trial Court.

11/26/2002, #15 - Letter from James W.

Stathopoulos, Esquire re: received decision on

11/19/02; and require the benefit of the full 14 and

20 day periods to file Petition for Rehearing and

Further Appellate Review.

11/27/2002 - RE#15 Either a M.R.A.P. 27 or 27.1

filing should be accompanied by a motion to enlarge

setting out the within, note the rescript issued to the

trial court on 11/25/02. *Notice.

12/09/2002, #16 - Motion to enlarge time for filing an

MRAP Rule 27 petition for rehearing and a Rule 27.1

application for further appellate review, filed by Gifford

Brothers Sand & Gravel.

12/10/2002 - RE#16 Appellant may file his petition

for rehearing on or before 12/19/02. Any request for

an enlargement of time to file an application for F AR

must be made to SJC. (Gelinas, Kantrowitz & Doerfer,

JJ.) *Notice.

12/20/2002, #17 - PETITION for Rehearing, filed by

Gifford Brothers Sand & Gravel.

01/09/2003, #18 —- ORDER: -Denial of petition for

rehearing. (GS-KN-DO, JJ.) *Notice/Image.

10/27/2005 - Copy of FAR application of Gifford

Brothers Sand & Gravel.

12/27/2005 — FAR DENIED (on 12/21/05).

20a

03/20/2006, #19 — Letter from Supreme Court of the

United States, Washington, D.C. re: extension of time

to file a petition for a writ of certiorari to 05/20/06.

2la

APPENDIX E

SUPREME JUDICIAL COURT

For the Commonwealth

Case Docket

GIFFORD BROTHERS SAND AND GRAVEL, INC. vs.

ZONING BOARD OF APPEALS OF BARNSTABLE :

FAR- 15086

CASE HEADER

Case Status FAR denied

Nature Zoning appeal: c40A

Appeals Ct Number 2000-P-0701

Appellant Both Plf & Deft

Citation 45 Mass. 1109

Full Ct Number

Lower Court Barnstable Superior Court

Status Date 12/21/2005

Entry Date 10/07/2005

Opposition Date

Applicant Plaintiff

Case Type Civil

TC Number 98-87

Lower Ct Judge Gary A. Nickerson, J.

INVOLVED PARTY

Gifford Brothers Sand & Gravel

Plaintiff/Appellant

ATTORNEY APPEARANCE

James W. Stathopoulos, Esquire

Gregory M. Downs, Esquire

22a

INVOLVED PARTY

Barnstable Zoning Bd. of Appeals

Defendant/Appellee

ATTORNEY APPEARANCE

T. David Houghton, Esquire

Robert D. Smith, Esquire

Ruth J. Weil, Esquire

DOCKET ENTRIES

10/07/2005 - Docket opened.

10/07/2005, #1 - MOTION to file FAR application

late, filed for Gifford Brothers Sand & Gravel by James

W. Stathopoulos, Esquire. (Referred to the justices)

Notice sent.

10/07/2005, #2 - FAR APPLICATION of Gifford

Brothers Sand & Gravel, filed by James W.

Stathopoulos, Esquire.

10/24/2005, #3 - OPPOSITION to Paper #1

(Appellants’ motion to file FAR application late), filed

for Barnstable Zoning Bd. of Appeals Town of by T.

David Houghton, Esquire, Robert D. Smith, Esquire,

Ruth J. Weil, Esquire. (Referred to the justices) Notice

sent.

10/27/2005, #4 - Additional copies of the appellant's

FAR application received this date. Only one copy was

filed on 10/7/05.

11/03/2005, #5 - Additional copies of Appellee’s

Opposition to Motion to Enlarge time.

11/30/2005, #6 ~ Action on application deferred. (RA

and Briefs requested from Atty. Stathopoulos.)

RS ee

23a

(12/13/05: Materials received from Atty.

Stathopoulos.) 12/28/05: Materials returned to Atty.

Stathopoulos.)

12/21/2005, #7 - DENIAL of FAR application.