Opinion
18-P-1263
09-19-2019
Brenda HARYSLAK v. TOWN OF GROVELAND & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The question before us is whether, under § 301.20.2 of the zoning bylaws of the town of Groveland (town), the plaintiff, Brenda Haryslak, should be permitted to operate a specialty candy and gift shop at her residence. After a public hearing, the town's zoning board of appeals (board) denied the plaintiff's application for a special permit to operate the shop. On the plaintiff's appeal pursuant to G. L. c. 40A, § 17, a Superior Court judge affirmed the board's decision after a de novo trial, reasoning that the proposed retail use of the property was not a customary home occupation under the bylaws and that such retail use would be detrimental to the residential neighborhood. On appeal, the plaintiff claims those findings were clearly erroneous. We affirm.
Background. We summarize the material facts. The plaintiff's residence at 94 Main Street is located in the town's R-B residential zone. On August 28, 2015, the plaintiff filed an application with the board for a special permit to operate a specialty candy and gift shop at her residence. Among other things, the special permit application proposed daily hours of operation and off-street parking, which included a large parking area adjacent to the residence that the plaintiff intended to pave. The board denied the application after a hearing, concluding, in summary, that (1) the proposed retail sales are not customary in a residence in the town's R-B residential zone, (2) the proposed paved parking area would vary the residential character of the home, and (3) use of the property as proposed would be detrimental to the residential neighborhood.
The plaintiff sought judicial review of the board's decision pursuant to G. L. c. 40A, § 17. After a de novo trial, a Superior Court judge affirmed the board's findings that the proposed retail use of the property was not a customary home occupation under the bylaws and that the proposed retail use would be detrimental to the surrounding residential properties.
Discussion. "On a G. L. c. 40A, § 17, appeal, review of the board's decision, while based on de novo fact finding, is nonetheless ‘circumscribed.... [That decision] cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.’ " Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 355, 754 N.E.2d 101 (2001), quoting Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 486, 709 N.E.2d 798 (1999). We accept the judge's findings of fact unless they are clearly erroneous, and we review de novo the judge's determinations of law, including interpretations of zoning bylaws. Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 474-475, 961 N.E.2d 1055 (2012). "With respect to conclusions regarding interpretations of a zoning ordinance and their application to the facts, an appellate court remains ‘highly deferential’ to a board's denial decision ‘even if the facts found by the court would support its issuance.’ " Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 383, 909 N.E.2d 1161 (2009), quoting Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 74, 794 N.E.2d 1198 (2003).
Section 301.20.2 (as revised April 30, 2012) of the governing bylaws provides that "[c]ustomary home occupations conducted by resident occupants only, and not detrimental to a residential neighborhood," may be permitted by special permit. "Home occupation" is defined, in part, as "[a]n occupation or a profession which: [i]s customarily carried on in a dwelling unit or in a building or other structure accessory to a dwelling unit." The term "customary" is not defined, but the bylaws provide examples of uses that may be permitted as a "[h]ome occupation," such as a "[p]rofessional office of a physician, dentist, lawyer, engineer, architect, real estate agent or broker or accountant within a dwelling occupied by the same." The bylaws also provide examples of uses that may be prohibited including businesses such as "[t]ourist home[s,] [b]arber shops[,] [c]ommercial stables and kennels[, and r]estaurants and tea rooms."
The plaintiff had the burden of establishing that she was entitled to a special permit under the bylaws. Dion v. Board of Appeals of Waltham, 344 Mass. 547, 555-556, 183 N.E.2d 479 (1962). She testified that she intended to operate a penny candy and gift shop in an 800-square-foot area of her residence. The hours of operation would be from 10 A.M. to 6 P.M. each day, except Sunday when the shop would be open from 12 P.M. to 6 P.M. The plaintiff anticipated approximately forty customers per day and believed that her property could accommodate fourteen parking places in an area adjacent to her residence that she intended to pave. The zoning enforcement officer testified that he was not aware of any retail candy and gift shops that had received special permits to operate as a home occupation in the town's residential zone. Bearing in mind this testimony regarding the nature of the proposed use and the deference owed to the board in its interpretation of the bylaws, we cannot reasonably say that the judge clearly erred when he found that the proposed use was "definitively ‘retail’ in nature" and "not customarily found in the residential properties abutting or near ‘the property.’ "
We are not persuaded by the plaintiff's argument that the judge's consideration of the proposed parking area was error. The plaintiff's application included evidence of the parking area, and she testified without objection to the number of parking places on her property and her intention to pave the area. Even if (as the plaintiff suggests) the board could have imposed a condition that the area not be paved, the board could still have concluded that a parking area with fourteen, or ten, spaces, with customers coming and going seven days per week, would be a clear "exterior indication of the home occupation," forbidden by the bylaws' definition of that term, and would be "detrimental to the neighborhood." Also, that the plaintiff might already be free to create such a parking area even without a special permit (as she further suggests) hardly means that the board must give her an incentive to do so by granting a special permit that would attract retail customers and their vehicles to her property.
The plaintiff claims that because there are other residential properties in the area that have been allowed to conduct retail operations, such operations are "customary" within the meaning of the bylaws. However, the zoning enforcement officer testified that many of the retail operations offered as examples by the plaintiff were preexisting nonconforming uses rather than home occupations authorized by special permit under the bylaws. This testimony supported the judge's conclusion that the evidence of other retail operations was "not instructive to the court as [the other properties] did not involve similar circumstances and bylaws at the time of their approval." We see no clear error in that conclusion.
While two of the examples offered by the plaintiff involved special permits for home occupations, the zoning enforcement officer testified that those cases did not involve retail operations similar to that proposed by the plaintiff.
Finally, the judge, as did the board, concluded that the proposed use would be detrimental to the residential neighborhood. We discern no clear error in this finding where there was evidence that as many as forty customers each day would access the property from a busy street. See Davis, 52 Mass. App. Ct. at 358, 754 N.E.2d 101 (vehicular congestion fair consideration for zoning board).
We are not persuaded by the plaintiff's contention that the Supreme Judicial Court's decision in Colangelo v. Board of Appeals of Lexington, 407 Mass. 242, 552 N.E.2d 541 (1990), requires reversal of the board's decision. There, the court reversed the denial of a special permit where the denial was based entirely on "severe traffic problems" that the court ultimately concluded were "imperceptible." Id. at 246, 552 N.E.2d 541. In this case, assuming without deciding that the increased traffic here would be minimal, vehicular congestion was only one factor considered by the judge. His primary reason for affirming the board was his finding that the proposed retail store was not a customary use in the residential neighborhood. That conclusion was well supported by the evidence.
--------
Judgment affirmed.