Plainville Asphalt Corp. v. Town of Plainville, 83 Mass.App.Ct. 710 (2013): in a complicated and vigorously litigated case regarding the status of bituminous concrete production operation, the plaintiff appealed the decision of the Land Court on cross-motions for summary judgment that the operation was not permitted as-of-right under the Town of Plainville Zoning Bylaws and not protected as a pre-existing nonconforming use under G.L. c.40A §6. In a noteworthy victory for municipalities, the Appeals Court ruled that an ongoing commercial operation could not be grandfathered through from an amendment to the Zoning Bylaws to allow the termination of legal pre-existing nonconforming uses not only upon abandonment, but also upon the mere discontinuance of the pre-existing nonconforming use. In doing so, the Appeals Court rejected the plaintiff’s request to extend to commercial uses the Supreme Court’s ruling in Rourke v. Rothman, 448 Mass. 190 (2007) that residential lots could be protected from amendments to the grandfathering provisions of local zoning bylaws.
