Opinion
14-P-1537
01-27-2016
LAURENCE S. FORDHAM v. MICHAEL BUTERA & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
For the past approximately twelve years, the plaintiff, Laurence S. Fordham, has sought to set aside business storage permits issued by the zoning board of appeals of Weston (board), which allow the defendants, Michael and Janet Butera, to store a limited number of vehicles and equipment in a barn on their property -- principally landscaping and snow removal equipment. There has been, in the long procedural history of this litigation, two Land Court cases, an Appeals Court decision, Fordham v. Butera, 68 Mass. App. Ct. 907 (2007), and, on further appellate review, a Supreme Judicial Court decision, Fordham v. Butera, 450 Mass. 42 (2007). The aforecited prior appeals involved only the discrete legal issue concerning the validity of the business storage permit by-law, not the merits of the case. Holding § V.B.5 of the Weston zoning by-law (by-law) valid, the Supreme Judicial Court remanded to the Land Court for trial on the merits of the permit. Id. at 47.
Section V.B.5 of the by-law states as follows:
"'Uses Allowed By Permit. Storage for Commercial and Business Activities: In Single Family Residence Districts the Permit Granting Authority may issue Permits for the storage of vehicles, materials, supplies and equipment in connection with commercial or business activities principally carried on in the Town and providing services essential to the uses of premises permitted in the residence districts; and may in connection with a farm use, in a residence district, permit the commercial raising, keeping, selling or other dealing with poultry or livestock."
In this appeal, Fordham challenges the judgment entered by a judge of the Land Court following a trial on the merits held after remand by the Supreme Judicial Court. Following the trial, the Land Court judge affirmed the board's amendment to the business storage permit under § V.B.5, made comprehensive findings of fact, and provided an in-depth legal analysis in a de novo review of the board's decision. The judge's rulings are set forth in a forty-eight page memorandum of decision. We adopt this persuasive analysis which rests on solid findings of fact. Accordingly, we affirm.
Briefly summarized, and as further detailed herein, the judge affirmed the board's amendment in 2009 of a business storage permit that had been issued to the Buteras in 1995. The 2009 amendment expanded in a relatively limited manner the number of vehicles and equipment that could be stored under the original 1995 business storage permit. The Land Court judge described the 2009 amended business storage permit as granting
"permission to store: two (2) four-cylinder trucks, two (2) pickup trucks, trailers, two (2) snow plows, and various other landscaping products, materials, and equipment. The 2009 Business Storage Permit authorizes the Buteras to place on the Premises, move around and rearrange, and remove from the Premises, the permitted vehicles, materials, supplies, and equipment. It additionally requires that, with the exception of specifically enumerated items, 'the other vehicles, equipment, material and supplies related to [the Buteras'] business shall be stored most of the time inside the barn, lean-to [Shed] or tent [Tarp] situated on the Premises.'"The judge further found that the Buteras customarily store the following on the locus:
"(2) pickup trucks at the Locus in the space between the Barn and the row of trees to the north of the Barn. The [Buteras] also own a third pickup truck. Their son, an employee of the landscaping business, uses this truck to commute to and from the Locus. The third pickup truck is not used in the business -- it is parked with the other employee vehicles during the day and is not stored on the Locus overnight."
We are persuaded that the judge was correct in these determinations. We discern no error and reject the contentions advanced by Fordham. Further and also contrary to Fordham's contentions, the judge determined that the business storage use is not a nonconforming use under the by-law:
"[B]oth the home occupation and business storage uses are expressly allowed in the Single Family Residence District A. The first is allowed by-right; the second is allowed by means of a Business Storage Permit."
1. Background. The Buteras own a residential lot on South Avenue (Route 30) in Weston consisting of approximately 42,000 square feet on which their home is situated (locus). The locus, neighbors testified, is impeccably maintained. Fordham's property, consisting of four heavily-wooded acres, abuts the locus at the southern, rear boundary. Fordham's home is located a considerable distance from the rear common boundary. From the record, it appears that it is difficult, if not impossible, for Fordham to see any of the business equipment stored on the locus from his residence or from any part of his four-acre lot. Notably, no customers come to the locus, and the employees do not work at the locus. Rather, company trucks and equipment are parked indoors. We quote the judge's definitive findings of fact:
The Land Court judge found that "the [Buteras] have satisfactorily screened the parties' common boundary such that business storage is not visible at this location. The eight (8) foot fence extends the length of the Fordham/Butera common boundary."
"The Board found that the [Buteras] conducted their business completely within the dwelling in compliance with subsection V.B.1.f(i). Customers do not visit the Locus and the [Buteras'] administrative business tasks take place uniformly within the Buteras' residence. The accessory structures are used for business storage only in accordance with the Business Storage Permit."The judge further found as follows:
"The [Buteras] have gone to great lengths to shield their business storage from the view of their neighbors. From the Locus' northern boundary (along Route 30), the
[Buteras'] trucks, materials, and equipment are not readily visible. Although [Fordham] complains that he can observe employee parking while driving west on Route 30, this court concurs with the [Buteras] that 'if a passerby is able to glimpse one of these employee vehicles in passing, the appearance is nothing more than a residential vehicle parked in a driveway.' Such a view is not inconsistent with the residential character of the area; it is precisely what is envisioned under the Bylaw. The employee parking area is adequately screened by the twenty-foot tall, 8-9 foot thick hemlock trees and stone wall separating it from Route 30."
We turn further back in time to canvas the record concerning the original 1991 variance granted to the Buteras to build a barn and the original 1995 business storage permit. We do so because the 1991 variance and the original 1995 business storage permit are, to some degree, implicated in Fordham's challenge to the 2009 amendment to the business storage permit.
In 1991, the Buteras sought and received a variance to construct a barn on the locus. So far as it appears from the record, the proposed barn complied with all setback requirements, but the variance was required because the locus is a preexisting nonconforming lot that does not meet the frontage or lot area requirements. No appeal was filed by Fordham from the 1991 variance.
Thereafter, in 1995, the Buteras sought and were granted a business storage permit under § V.B.5. That permit authorized the storage of one truck and trailer inside the barn. Again, no appeal was filed by Fordham concerning the 1995 business storage permit.
Notwithstanding his failure to appeal either the variance or the original business storage permit, in 2003 Fordham commenced his first challenge by lodging a complaint with the building inspector, alleging that the Buteras were storing additional vehicles and landscaping equipment and materials on the locus. Fordham argued that the 1995 permit allowed a business storage use limited to just one truck and one trailer. The building inspector issued a cease and desist order in 2003, ordering the Buteras to remove equipment not covered by the 1995 permit.
The Buteras then filed a request to amend the 1995 business storage permit to allow for the storage of two four-cylinder trucks, two pick-up trucks, one car for personal use, two trailers, two snow plows, one small Bobcat, and landscaping instruments including lawnmowers, leaf blowers, and trimmers, and products such as fertilizer and mulch. In considering the Buteras' request to allow storage of this additional equipment, the board found that there would be little adverse impact to the neighborhood from the amended permit and granted the Buteras' 2003 application.
After this 2003 amendment was granted by the board, Fordham appealed to the Land Court. Without reaching the merits, a Land Court judge entered summary judgment limited to the pure issue of law whether § V.B.5 (see note 2), which provided for the business storage permit, was invalid on its face. That judge declared that the business storage permit provided for in § V.B.5 was invalid because § V.B.5 gave "unbridled discretion" to the board. This court affirmed, holding that § V.B.5 was invalid. Fordham v. Butera, 68 Mass. App. Ct. at 910. However, on further appellate review, the Supreme Judicial Court reversed, holding that there were sufficient standards in § V.B.5 to guide the board in deciding whether to grant or withhold a business storage permit. Fordham v. Butera, 450 Mass. at 43. The Supreme Judicial Court then remanded for further consideration of all remaining issues that had not been determined by the Land Court. Id. at 47.
On remand, a different judge annulled the board's 2003 decision to amend the business storage permit, and remanded for the board to reconsider the Buteras' application and to render additional findings related to specific aspects of the by-law and G. L. c. 40A, § 9. On September 14, 2009, the board made further additional findings as ordered by the Land Court judge, and "affirmed" its 2003 decision granting the Buteras an expanded business storage permit. It is the 2009 amendment to the permit, approved by the board and Land Court, which is the subject of this appeal.
Reduced to essentials, in this appeal, Fordham claims that expanding the business storage use was improper (i) because of a lack of a finding by the board and Land Court pursuant to G. L. c. 40A, § 6, that the expanded use is not substantially more detrimental to the neighborhood than the prior use; (ii) because the use is nonconforming; and (iii) because a new variance was required. Each of these contentions was addressed by the judge. We conclude that none of Fordham's contentions is availing.
2. The Land Court's G. L. c. 40A review and finding of no more substantial detriment. Contrary to Fordham's arguments, the judge specifically entered findings under G. L. c. 40A, § 6, that expansion of the permitted use in the 2009 amendment to the 1995 business storage permit would not be substantially more detrimental to the neighborhood than the prior permitted use. In so doing, the judge noted that the board had expressly found that the use under the proposed amendment to the permit would have "little impact" on the neighborhood. Indeed, the 2009 board record showed, and the judge in de novo review found, that the Buteras' property is well-screened with shrubs and fencing. Their neighbors testified to a lack of visual evidence of the use and that the noise from the use did not exceed the noise of the busy street on which the properties front. As previously noted, Fordham's property is large (four acres) and heavily wooded. The board and the judge determined that there will be "no visible exterior storage of material or equipment" and "no exterior indication from the boundaries of the premises of such use or variation from the residential character of the area." In addition, the board and the judge found that the traffic generated by the use is not inconsistent with traffic usually associated with a single family residence and there is adequate parking screened from the abutting properties. See generally Glidden v. Zoning Bd. of Appeals of Nantucket, 77 Mass. App. Ct. 403, 407 (2010).
Only Fordham, whose home is farther away than the homes of other witnesses and whose property is heavily wooded, testified that noise and visual impacts were issues arising out of the 2009 amendment. Neither the board nor the judge was required to credit Fordham's testimony, particularly in light of contrary testimony. The judge found that the storage areas at issue are not visible from the street, and that Fordham could view them only from several hundred feet from his dwelling at the shared boundary with another abutter where there is a gap in the fence and tree screens. Further, the board and the judge found that the Buteras' business storage use is "in no way detrimental to the 'health, safety, convenience, morals, or welfare' of the neighborhood or community." In addition, although up to four trucks are permitted to be stored at the premises, the judge found that on most days, only two will depart from the locus.
We are persuaded that the combination of the findings made by the board and the judge establish that the proposed additional storage of two trucks, two snowplows, and related equipment and materials will not be substantially more detrimental to the neighborhood than the prior permit allowing the original business storage of one truck and trailer and related landscaping and snow plowing materials and is supported by the record.
3. Fordham's nonconforming use challenge and the judge's analysis. The judge deftly and correctly rejected Fordham's nonconforming use challenge. The judge concluded that the business storage use is not nonconforming under the by-law because it is expressly permitted in the residential district in which the locus is located and it is not "preexisting" in that the business storage use did not precede adoption of a by-law which prohibits or limits the use. The judge found as follows:
"Lastly, while [Fordham] characterizes business storage use as a 'nonconforming use,' he fails to offer support for his position. Relying on this characterization, he argues that G. L. c. 40A, § 6 and Bylaw Section III.A required the Board to make a finding prior to allowing the expansion of the business storage with the issuance of the 2009 Business Storage Permit. The [Buteras], for their part, argue that issuance of a Business Storage Permit requires no such finding. Section III.A, mirroring language appearing in G. L. c. 40A, § 6, addresses preexisting nonconforming buildings, structures, and uses. In this regard, it provides as follows:
. . . this Zoning By-law shall not apply to existing buildings or structures, nor to the existing
use of any building or structure, nor of land to the extent to which it is used at the time of adoption of this Zoning By-law, provided that any change of use thereof, any alteration of a building or structure when the same would amount to extension thereof and any alteration of a building or structure to provide for its use for a purpose or in a manner substantially different from the use to which it was put before alteration, or for its use for the same purpose to a substantially greater extent shall be subject upon application to the finding of the Zoning Board of Appeals as the Special Permit Granting Authority that such change, extension or alteration will not be substantially more detrimental to the neighborhood than the existing nonconforming use or structure.
"The Weston Zoning Bylaw defines a nonconforming use as '[a] use of a building, structure, or land which does not conform to the use regulations for the district in which it is located.' Additionally, to fall within the purview of G. L. c. 40A, § 6, a nonconforming use must predate the zoning bylaw that prohibits it. See Mendes v. Bd. of Appeals of Barnstable, 28 Mass. App. Ct. 527, 529-30 (1990) ('A use achieves the status of nonconformity for statutory purposes if it precedes the coming into being of the zoning regulation which prohibits it.'); Barron Chevrolet, Inc. v. Danvers, 419 Mass. 404, 408 (1995) ('A prior nonconforming use is a use that had been allowed as a matter of right under the prior zoning by-laws, but is not allowed under a new by-law'). In essence, the question is 'not merely whether the use is lawful but how and when it became lawful.' Mendes, 28 Mass. App. Ct. at 531."
4. The variance contention. Fordham also argues, in essence, that there has been a change in use requiring a new variance, but the record does not support this claim. Fordham's failure to appeal from the 1991 variance is telling, but it is also significant that the judge, in this latest challenge, directly rejected Fordham's argument that the language of the variance foreclosed the Buteras' use of the barn for business storage. We agree with the judge, and discern no need for a new variance. See generally Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App. Ct. 539, 547-553 (2014).
In sum, as to the variance issue, no new nonconformity has been introduced; the use of the locus for business storage was authorized by a permit issued first in 1995 and amended in 2009 to accommodate additional storage needs. Permitted as it is in residential districts when certain conditions are met, the business storage use does not transform the residential use to a new "business" use requiring a variance.
Judgment affirmed.
By the Court (Berry, Meade & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 27, 2016.