Court Ousts Trash Company in Oak Bluffs Neighborhood

By ALEXIS TONTI

More than three years after a superior court judge ruled on the issue, the Massachusetts Court of Appeals this week upheld a decision ordering the trash hauling company Browning Ferris Industries (BFI) to clear out of its Oak Bluffs depot.

The court of appeals rejected the challenge to the superior court decision and declared commercial use of the property to be illegal under Oak Bluffs zoning bylaws.

The property is owned by Chilmark selectman Frank Fenner, who has leased it to BFI for more than a decade. At the center of Mr. Fenner's appeal was the argument that the commercial use of the property was grandfathered under zoning laws.

It is unclear whether BFI now has 90 days to move its operation out of the Pacific avenue depot, as ordered by the Hon. Thayer Fremont-Smith in the original superior court ruling three years ago. BFI had been granted several stays of order pending appeal.

The appeals court ruling was issued Wednesday.

The decision can be appealed to the Massachusetts Supreme Judicial Court; attorneys on both sides of the case have not yet said whether they intend to appeal.

For years residents of the working class neighborhood near the old Oak Bluffs School have complained about the noise, smell and traffic generated by the trash hauling operation. In 1997 Raymond Moreis, a retired housepainter, and his neighbors led the charge to oust BFI, filing a lawsuit against Mr. Fenner and the Oak Bluffs zoning board of appeals, which had sanctioned the use of the property.

The neighborhood has been zoned as a residential area since 1948.

The previous decision by Judge Fremont-Smith was sharply critical of zoning enforcement in Oak Bluffs and defended the rights of the neighborhood residents to enjoy their peace and quiet.

It is something they have not had for a long time.

In 1985 the late Everett Rogers, a selectman from 1952 to 1972, bought one parcel of the property from the town and proceeded to use it as a base of operations for a trucking business. In 1979, Mr. Rogers bought an adjacent lot from the town, paved it and stored trucks there.

Judge Fremont-Smith found that he never was granted a permit for either operation.

Shortly after Mr. Rogers died in 1989, his nephew, Richard Mavro, was appointed building inspector. That same year Mr. Fenner bought the land from Mr. Rogers's estate and was issued a permit by Mr. Mavro to build a commercial building on the site.

Judge Fremont-Smith took aim at the way the events unfolded, implying that an unfair system of cronyism in town politics played a role in enabling the activity.

In the six-page ruling this week, the Hon. David A. Mills, an associate justice of the appeals court, chronicled the history of the dispute but did not address the politics of the matter. The ruling focused largely on the four building permits associated with the property.

Judge Mills wrote that while the permits authorized the commercial use of the property generally, they lacked the level of detail necessary to trigger grandfathering protection under state law.

State law sets up a six-year limit for the enforcement of zoning bylaws, after which the use is protected as a preexisting nonconforming use.

"The words ‘commercial use,' standing alone, could be read in a massively expansive way to refer to multiple nonresidential uses (e.g., incinerator, gasoline station, shopping center, garbage dump, etc.). We consider it absurd to suggest that the legislature . . . . would intend ‘terms of the original building permit' to authorize any and all imaginable commercial uses on Fenner's property, with no greater specificity or description," Judge Mills wrote.

The judge concluded:

"[We] hold that Fenner had the burden of proving the nature of the particular uses authorized by the earlier building permits, and that the uses for which he sought protection were allowed by the permits. He failed to do so."

Attorney Brian J. Gunning, who represented Mr. Moreis, said yesterday that the long battle is nearly over.

"Everyone was very excited. They were very surprised - for some reason they had lost hope, probably a function of the lapse of time. But I think this will be the end of all litigation. I don't see it as a reviewable decision," Mr. Gunning said.

Neither Mr. Fenner nor his attorney, Thomas A. Mackie, returned calls for comment.