DANIEL P. HOLMES and ELIZABETH Z. HOLMES v. TOWN OF SUDBURY BOARD OF APPEALS, FAIRVIEW DEVELOPMENT CORP., and FRANK MAURER CO., INC.

In this case, Plaintiffs have a filed a Complaint for Civil Contempt alleging that Defendants, Fairview Development Corp. and Frank Maurer Co., have violated the terms of a March 28, 2007 Judgment issued by this court. The contempt complaint is the latest action involving two related zoning cases. In both cases, Plaintiffs challenged renewals of use variances granted by Defendant Town of Sudbury Board of Appeals (Board) to Defendant Fairview Development Corp. and Frank Maurer Co., Inc. (Defendants), authorizing a landscaping business use on a portion of property, owned by Defendant Fairview Development Corp., located in a residential zoning district (Locus). In Land Court Misc. Case No. 284149 (First Case), this court found that the Board acted beyond its authority in granting a two-year renewal of the use variance on September 9, 2002 (2002 Variance). Judgment annulling the 2002 Variance was issued and Defendants appealed that judgment to the Appeals Court, where it was entered as Case 2005-P-1574 (Appeals Court Case). Prior to disposition of the Appeals Court Case, Defendants applied for, and were granted, another use variance (2005 Variance), which was unlimited as to duration. The 2005 Variance, granted on October 18, 2005, took effect upon the expiration of the 2002 Variance, also prior to the disposition of Appeals Court Case.

The Board’s issuance of the 2005 Variance was challenged by Plaintiffs by complaint filed in Land Court Misc. Case No. 315988 (Second Case), where Plaintiffs argued that the Board had once again exceeded its authority by granting a use variance to Defendants. On September 27, 2006, the Appeals Court affirmed this court’s judgment in the First Case by a Memorandum and Order pursuant to Rule 1:28. Defendants did not seek further appellate review and notice of the Appeals Court Memorandum and Order was entered on the Land Court’s docket. On March 28, 2007, summary judgment in the Second Case was entered for Plaintiffs based on the express terms of the 2005 Variance. [Note 1] Defendants were given until May 11, 2007, to remove all equipment and machinery from Locus and to otherwise cease commercial uses authorized by the 2005 Variance.

Specifically, the Judgment states:

Defendants . . . are enjoined from engaging in those uses on Locus authorized by the Board under the 2005 Variance, which include: “the storage, garaging, and repair of the company’s own light and heavy equipment and trucks, and the storage of loam, chips and other landscaping materials . . .”

In recognition of the fact that certain activities conducted on Locus pursuant to operation of a nursery or other agricultural use might overlap with business activities authorized by the 2005 Variance, this court included the following proviso (Agricultural Proviso) in its Judgment:

“provided, however, that to the extent that certain activities conducted in connection with the business activities authorized under the 2005 Variance overlap or are similar to activities which are otherwise permitted on Locus and which do not relate to Defendants’ unauthorized business use, this court’s injunction does not prohibit such activities;”

On October 4, 2007, this complaint for contempt was filed and a view of Locus was taken on October 18, 2007. In a two-day trial that was held on January 15, 2008, and March 10, 2008, Dana Prestone, private investigator and owner of Rockwell Investigations; Bruce Maurer, co-owner of Frank Maurer Corp., Fairview Development Corp., and North Road Fairview Farm Corp.; Marianne Maurer-Ouellette, Office Manager for North Road Fairview Farm Corp; and Douglas P. Gillespie, Acting Executive Director of the Massachusetts Farm Bureau Federation and former Massachusetts Commissioner of Agricultural Resources, were sworn and testified. Twenty-eight exhibits were admitted at trial. The only issue at trial was whether Defendants had committed a clear and unequivocal disobedience of this court’s March 28, 2007 Judgment. Based on the evidence and the reasonable inferences drawn therefrom, this court finds that Defendants have not acted in contempt of this court’s Judgment, based on the following facts.

Locus is owned by Defendant Fairview Development Corp., and is rented to North Road Fairview Farm Corp. (Farm Corp.) pursuant to a verbal agreement. Farm Corp. operates on Locus a nursery and tree farm on which it grows various types of trees, bushes and flowers, as well as prepares compost, which it sells. Defendant Fairview Development Corp. collects rent from Farm Corp. Some of the agricultural products produced by Farm Corp. are sold to related companies, including Defendant Frank Maurer Co., but the operation of the nursery and tree farm is run solely by Farm Corp.

Although numerous commercial vehicles enter and exit Locus during various hours of the day, these vehicles belong to family members who reside on Locus, or employees, customers, suppliers, and providers of services to the nursery operation. Additionally, with the exception of a commercial vehicle used by a family member who resides on Locus, none of these commercial vehicles are stored overnight on Locus unless they are engaged in work on Locus for Farm Corp. The evidence established that the equipment and vehicles previously stored on Locus, and which this court ordered removed from Locus, were in fact relocated to a storage facility in Maynard in accordance with the terms of this court’s Judgment. The materials and activities found on Locus at the view and established at trial, including piles of loam, sand, wood chips, leaves, and grass cuttings, are of the kind typically found at a nursery or used in connection with the preparation of compost. Further, they are consistent with Farm Corp.’s operation of its nursery and tree farm and are not being used in furtherance of the commercial activities prohibited by this court’s Judgment.

To prevail on a complaint for contempt, a complainant must show that there was a “clear and unequivocal command and an equally clear and undoubted disobedience.” Demoulas v. Demoulas, 424 Mass. 501 , 565 (1997) (citing United Factory Outlet, Inc. v. Jay’s Stores, Inc., 361 Mass. 35 , 36-7 (1972)); see also, Oakham Sand & Gravel Corp. v. Town of Oakham, 54 Mass. App. Ct. 80 , 86 (2002); Sax v. Sax, 53 Mass. App. Ct. 765 , 771 (2002). “Civil contempt proceedings are ‘remedial and coercive,’ intended to achieve compliance with the court’s orders for the benefit of the complainant.” Furtado v. Furtado, 380 Mass. 137 , 141 (1980) (citing Cherry v. Cherry, 253 Mass. 172 , 174 (1925)).

While this court understands that Plaintiffs’ concerns about activities on Locus have not been alleviated despite their successful challenge to the Board’s authority to issue use variances to Defendants, the activities currently conducted on Locus are not in violation of this court’s Judgment and do not support a finding of contempt. The terms of the Judgment prohibited Defendants from operating a landscaping business on Locus and from storing the equipment and vehicles on Locus necessary to operate that business.

Plaintiffs have failed to carry their burden in this case. See Demoulas, 424 Mass. at 565. Despite Plaintiffs’ extensive briefing on the issue of whether the composting activities conducted on Locus are in compliance with 330 CMR 25.03 (3), the Department of Agriculture’s Agricultural Composting Guidelines, this court declines determine that issue. The legal issue before the court in this contempt action is whether Defendants’ actions constitute a clear and unequivocal disobedience of this court’s Judgment. This court finds that the composting and nursery uses are within the definition of “agriculture, horticulture, [or] floriculture . . .” as defined under G. L. c. 40A, §3, and Defendants’ Certificate of Agricultural Composting issued under G. L. c. 128A, § 1A, sufficient to come within both the letter and spirit of the Agricultural Proviso set forth in this court’s March 28, 2007 Judgment. Therefore, this court finds and rules that Plaintiffs did not carry their burden of establishing Defendants’ clear and unequivocal disobedience of the Judgment. [Note 2]

For the foregoing reasons, this court concludes that Defendants are not in contempt and judgment dismissing the complaint will issue.

Karyn F. Scheier

Chief Justice

Dated: October 7, 2008