Opinion
20-P-1252
01-25-2022
TERRELL HALEWIJN v. ZONING BOARD OF APPEALS OF FALMOUTH & another.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 2 3.0
In 2017 Terrell Halewijn purchased a small vacant lot of land (lot) in Falmouth (town) at an online auction, sight unseen. The lot was .22 acres, landlocked, could only be accessed by an easement over an abutting property owned by Latitude 41 North, LLC (Latitude), had no utilities, and lacked enough frontage to build a residence. Despite these facts, Halewijn was content with his purchase due to the lot's location, which is a two-minute walk from a parking lot with a shuttle bus to the ferry to Martha's Vineyard, where Halewijn owned two properties.
Halewijn began parking a recreational vehicle (RV), a green van, and other vehicles on his lot and taking the free shuttle bus to the ferry. Latitude filed a request for zoning enforcement with the town building commissioner to prevent the parking of vehicles on the lot. The building commissioner found no violation. However, on appeal, the zoning board of appeals (board) found that under the town zoning bylaw, Halewijn could not store vehicles on the lot and ordered him to remove all vehicles, including the RV. More specifically, the board determined that parking and storing vehicles was not a permitted principal use in the residential district where the lot was located. The board further found that while parking may be a proper accessory use in some circumstances, such circumstances were not present in this case.
Halewijn appealed to the Land Court under G. L. c. 40A, § 17, contesting the board's decision and arguing that, among other things, the parking of vehicles on the lot was accessory to agricultural use, which he claimed was his primary use of the lot. After a trial, the judge found that Halewijn "fell far short" of showing that the primary use of the lot was agricultural and affirmed the decision of the board. Halewijn appeals from the judgment, claiming the trial judge erred in making this finding. We affirm.
Discussion.
On appeal from a trial judge's review of a municipal board's decision under G. L. c. 40A, the judge's findings of fact will not be set aside unless they are "clearly erroneous." Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 87 Mass.App.Ct. 871, 873 (2015). DiGiovanni v. Board of Appeals of Rockport, 19 Mass.App.Ct. 339, 343 (1985). We review the judge's determinations of law, including interpretations of zoning ordinances de novo but we remain "highly deferential" to the board's interpretation of its own ordinances. Buccaneer Dev., Inc., supra, quoting Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725, 728-729 (2013). The decision of the board can only be disturbed if it is based "on a legally untenable ground" or is "unreasonable, whimsical, capricious or arbitrary." Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass.App.Ct. 483, 486 (1979), quoting Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277-278 (1969) .
Findings of fact are clearly erroneous where "there is no evidence to support them or when, 'although there is evidence to support [them], the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" DiGiovanni v. Board of Appeals of Rockport, 19 Mass.App.Ct. 339, 343 (1985), quoting Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160-161 (1977).
Here, the facts found by the trial judge were amply supported by the record. In a thoughtful twenty-one page decision, the judge relied on the undisputed facts, weighed the credibility of the witnesses at trial, factored in his own observations based on a view of the lot, and considered the exhibits to find that Halewijn's primary use of the lot was not agricultural but rather was to store his RV and other vehicles. Because the storage of his vehicles was the primary use of the lot, for which it was not properly zoned, the judge affirmed the decision of the board. We see no error.
Both Latitude's and Halewijn's lots were located in a "Single Residence District C" zoning district. According to Article V of the town zoning bylaw (bylaw), the only permitted principal uses for property in single residence districts are for one-family detached houses; certain community services; agriculture, horticulture, and floriculture; and piers, floats, and docks. If the primary use of a property falls into one of these permitted categories, the bylaw allows for incidental accessory uses. The board may allow certain other accessory uses by special permit. The parking of an RV within certain setback requirements is one such use that can be allowed by special permit if it qualifies as an accessory use.
Agriculture is defined by Article III of the bylaw as including "farming in all its branches, generally the cultivation and tillage of the soil, dairying, the production cultivation, growing and harvesting of any agricultural, floricultural, viticultural or horticultural commodities, and shellfishing, including preparations and delivery to storage or to market or to carriers for transportation to market."
Article III of the bylaw defines an accessory use as one that is "customarily incidental but secondary to, a permitted use except that if more than [thirty percent] of the floor area or [fifty percent] of the lot area is occupied by such use, it shall no longer be considered 'accessory.'"
As mentioned above, the judge concluded that Halewijn's primary use of the lot was parking and storing motor vehicles. His conclusion is well supported in the record. In the parties' joint statement of agreed facts, Halewijn acknowledged that he purchased the lot to park and store vehicles. Given the difficulty and expense of taking a vehicle by ferry to Martha's Vineyard in the summer, he used the lot to park his motor vehicles and access the free shuttle. The judge did not credit Halewijn's testimony that he used the lot primarily for agriculture and that the vehicles merely assisted him in this endeavor. The trial judge noted that the lot is not serviced with any utilities such as water or electricity, can only be accessed by an easement over Latitude's property, and that agriculture would require daily attention, which Halewijn was in no position to provide since he spent the majority of his time from April until September on Martha's Vineyard. Indeed, Halewijn conceded that in the year he had owned the lot, he spent "less than [twenty] or even [ten] hours total" occupying it. When the judge entered the lot for a view, he noted that Halewijn had a difficult time identifying plants and trees there, that many of the plants were small and appeared recently planted, and that the lot contained "many weeds and very few plants." In sum, the judge permissibly concluded that based on the credible trial testimony, his own view of the lot, and the photographs entered in evidence, the primary use of the lot was for the storage of vehicles. Because there was no lawful primary use of the lot, the judge also properly reasoned that there could be no permissible accessory use.
The judge also noted that even if he found Halewijn's primary use to be agricultural, storing the RV on the lot would not qualify as a valid accessory use as it was not "incidental" to "raising a garden." Further, such use required a special permit, which Halewijn did not have. We express no view on the latter point.
To the extent that Halewijn argues any other issues, he has failed to comply with Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019), and even if we could somehow interpret his brief as raising an appellate argument, the issues are waived as he did not raise them below. See Royal Indem. Co. v. Blakely, 372 Mass. 86, 88 (1977).
Judgment affirmed.
Wolohojian, Sacks & Walsh, JJ.
The panelists are listed in order of seniority.