PLANNING BOARD OF THE TOWN OF PEPPERELL, NICHOLAS A. CATE, DENNIS A. KANE, MARK F. MARSTON, RICHARD C. MCHUGH, JR., and STEPHEN C. THEMELIS, as they are members of the PLANNING BOARD OF PEPPERELL, and HARRY CULLINAN, as he is the BUILDING INSPECTOR and the ZONING ENFORCEMENT OFFICER OF THE TOWN OF PEPPERELL v. ZONING BOARD OF APPEALS OF THE TOWN OF PEPPERELL, THOMAS MCGRATH, SHERILL ROSOFF, and ANNETTE MCLEAN, as they are members of the ZONING BOARD OF APPEALS OF THE TOWN OF PEPPERELL, and KIMBERLEY H. GORDON

Plaintiffs, the Planning Board of the Town of Pepperell, the Building Inspector of the Town of Pepperell, and the Zoning Enforcement Officer of the Town of Pepperell, commenced this case on July 21, 2008, appealing a decision of the defendant, the Zoning Board of Appeals of the Town of Pepperell, granting a special permit for home occupation concerning a parcel of real property, known as and numbered 75 Groton Street in Pepperell. Plaintiffs seek to reverse the decision of the Zoning Board, arguing that the decision does not contain the specific findings necessary pursuant to the Town of Pepperell Zoning By-law and that the Board acted beyond its authority in granting the special permit. Defendants disagree, countering that the findings are sufficient and that the Zoning Board acted properly.

On October 10, 2008, a Case Management Conference was held. There the parties informed the Court that the issues involved were not sufficiently clear to either side because the decision of the Zoning Board did not make sufficient findings. Therefore, the parties requested that the Court remand the case to the Zoning Board. The Court (Trombly, J.) issued an Order on October 16, 2008, remanding the case to the Zoning Board for clearer findings. On December 12 2008, defendants filed the supplemental decision of the Zoning Board.

On February 23, 2009, plaintiffs filed a Motion for Summary Judgment. Defendants opposed the motion on March 24, 2009. The motion was argued on June 4, 2009, and is the matter presently before the Court.

After reviewing the record before the Court, I find that the following facts are not in dispute:

1. Defendant, Kimberley H. Gordon (“Defendant Applicant”) is a resident of a dwelling structure located on a parcel of real property, known as and numbered 75 Groton Street in Pepperell (the “Property”). [Note 1]

2. The Property is located in the “Suburban Residence” Zoning District, pursuant to the Town of Pepperell Zoning By-law. Multi-family dwelling structures are prohibited in the Suburban Residence Zoning District.

3. The dwelling structure is a three-family dwelling (the “Dwelling Structure”).

4. The Property contains also a barn structure separate from the Dwelling Structure (the “Accessory Structure”).

5. The Defendant Applicant currently operates a sign business under a special permit for home occupation concerning the Property.

6. On or about April 30, 2008, Defendant Applicant filed an application with the Zoning Board of Appeals of the Town of Pepperell for a special permit for a home occupation concerning the Property. By this application, Defendant Applicant seeks to conduct a commercial business involving the collection and sale of collectables and various items both owned and by consignment (the “Proposed Home Occupation”).

7. The application estimates that the maximum number of vehicle trips on a given day would be thirty five.

8. The Proposed Home Occupation will be located in the Accessory Structure.

9. The Defendant Applicant signed a statement representing that the Property is her primary residence.

10. The Proposed Home Occupation will be conducted solely by the Defendant Applicant.

11. The Proposed Home Occupation will include the construction of four (4) new customer parking spaces. The Property currently has a total of six residential parking spaces.

12. On or about June 18, 2008, after a public hearing, the Zoning Board voted to grant the special permit.

13. On or about June 30, 2008, the Board filed a written decision (the “Decision”) with the Town Clerk of Pepperell. The Decision made, inter alia, the following findings:

14. The Decision imposed, inter alia, the following conditions:

15. On or about December 8, 2008, pursuant to this Court’s Order of Remand of October 16, 2008, the Zoning Board filed a written supplemental decision (the “Supplemental Decision”) with the Town Clerk.

16. The Supplemental Decision made, inter alia, the following supplemental findings:

• Per section 3314, the limited sale of antiques and collectibles does not utilize exterior storage of material or equipment (including the parking of commercial vehicles)…
• The Board of Appeals is aware of the apparent ambiguity between Section 10,000 [sic], definition of home occupation and Section 3322. Section 3322 could be construed as requiring a home occupation to be conducted solely within a dwelling. However, the definition of home occupation in the By-law specifically states that it may be conducted in a dwelling or accessory structure by a resident thereof. The Board of Appeals believes that the definition controls the interpretation of Section 3322, because it clearly contemplates that the accessory use be allowed in an accessory structure as well as a principal structure.
• Per Section 3323, the limited sale of antiques and collectibles does not exhibit any exterior indication of its presence, or any variation from residential appearance, except for a sign or name plate in compliance with Section 5300.
• Despite the fact that the premises comprise an existing non-conforming three family dwelling, the grant of the special permit for home occupation does not constitute an extension of an existing non-conforming use and rests on the independent authority of Section 3300. There is not qualification or limitation on the number of units in a dwelling for which a home occupation may be approved and, as such, the non-conforming nature of the dwelling is not material and no special findings pursuant to MGL ch. 40A, sec. 6 are required.”

17. Plaintiffs allege that Defendant Applicant currently stores collectibles and various items on the exterior of the Accessory Structure.

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Summary judgment is proper where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). In viewing the record before it, the Court reviews “the evidence in the light most favorable to the nonmoving party….” Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002).

In weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Town of Norwood v. Adams-Russell Co., Inc., 401 Mass. 677 , 683 (1988) (citing Anderson v. Liberty, 477 U.S. 242, 247-48 (1986)). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, cited in Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006); Molly A. v. Comm’r of the Dept. of Mental Retardation, 69 Mass. App. Ct. 267 , 268 n.5 (2007). In order to determine if a dispute about a material fact is genuine, the court must decide whether “the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.

With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case, or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Commc’ns Corp., 410 Mass. 805 , 809 (1991). The party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). However, where appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c).

When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982). The court does not “pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Id. at 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from “pleadings, [Note 2] depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with…affidavits, if any….” Mass. R. Civ. P. 56(c).

In the instant matter, there are no genuine issues of material fact, within the meaning of Mass. R. Civ. P. 56(c), and, therefore, this case is proper for summary judgment.

I. SUFFICIENCY OF THE ZONING BOARD’S FINDINGS OF FACT

Plaintiffs argue that in its Decision and Supplemental Decision, the Zoning Board did not make findings sufficient to grant the Special Permit for Home Occupation. When granting a special permit, the granting authority must “make an affirmative finding as to the existence of each condition of the statute or by-law required for the granting of the variance or special permit.” Vazza Props. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 311 (1973) (citing Planning Bd. of Springfield v. Bd. of Appeals of Springfield, 355 Mass. 460 , 462 (1969)).

In the instant case, § 3320 of the Town of Pepperell Zoning By-law requires that an application for a Home Occupation Special Permit meet five requirements. It is undisputed that the Zoning Board made affirmative findings as to the existence of two of the five. Only the sufficiency of the Board’s findings regarding the qualifications of the Proposed Home Occupation under §§ 3322 and 3324 and the sufficiency of the conditions imposed by the Board under § 3325 are at issue, here.

a. Sufficiency of the Zoning Board’s findings under § 3322

Section 3322 of the Zoning By-law requires that a home occupation be “conducted within a dwelling solely by the person(s) occupying the dwelling as a primary residence and, in addition to the residents of the premises, by not more than two additional employees….”

In the instant case, in the Decision the Zoning Board found that the Defendant Applicant signed a statement representing that the Property is her primary residence and that the Proposed Home Occupation will be conducted solely by her. The issue was then raised whether a home occupation located in an accessory structure could meet the requirements of § 3322. In the Supplemental Decision the Zoning Board determined that a home occupation is permissible even if conducted in an accessory structure. Therefore, the Board affirmatively found that the Proposed Home Occupation met the requirements of § 3322, concerning the number and residency of the people conducting the Proposed Home Occupation and whether the Proposed Home Occupation was disqualified as a result of its location. Accordingly, I rule that the findings of the Zoning Board regarding the qualification of the Proposed Home Occupation under § 3322 are sufficient.

b. Sufficiency of the Zoning Board’s findings under § 3324

Section 3324 of the Zoning By-Law states that “not more than three home occupations may be conducted out of a dwelling; in no event shall the number of nonresident employees exceed two in the aggregate….” In the instant case, in the Decision, the Zoning Board found that the Property is previously permitted for a home occupation—a sign business—registered with the Town Clerk. The Board found no further home occupations on the Property. Furthermore, as previously stated, the Board found that the Proposed Home Occupation will be conducted solely by Defendant Applicant. Therefore, the Board found that the total number of home occupations registered with the Town Clerk for the Property would be two—no more than three—and the nonresident employees of the home occupations would remain the same—no more than two—because the Defendant Applicant would conduct the occupation alone. Accordingly, I rule that the findings of the Zoning Board regarding the qualification of the Proposed Home Occupation under § 3324 are sufficient.

c. Sufficiency of conditions imposed by the Zoning Board under § 3322

Section 3325 of the Zoning By-law states that “a special permit for [home occupation] is granted by the Board of Appeals, subject to conditions including, but not limited to, restriction of hours of operation, maximum floor area, off-street parking, and maximum number of daily customer or other vehicle trips. Such special permit shall be limited to five years, or the transfer of the property, whichever first occurs.” In the instant case, in its Decision, the Zoning Board imposes conditions limiting the hours of operation, the off-street parking, and the maximum floor area. The Board states also that the special permit is limited to five years or the transfer of the property, whichever first occurs.

However, the Decision and the Supplemental Decision fail to impose a maximum number of daily customer or other vehicle trips to the home occupation. Nonetheless, such trips would necessarily be limited by the limited number of customer parking spots imposed by the Board. Moreover, the language of § 3325 does not require that the Board impose each of these conditions; instead the language suggests that any special permit issued pursuant to § 3320 is subject to such conditions, automatically. In her special permit application, the Defendant Applicant estimates that the maximum number of clients on a given day would be thirty five. Cullinan Aff. Ex. A., attached in Pl.s’ App. Supp. Summ. J. Ex. C. Accordingly, I rule that the conditions imposed on the grant of the Special Permit under § 3325 were sufficient.

II. WHETHER THE DECISION OF THE ZONING BOARD WAS PROPER UNDER §§ 3321 AND 3323 AS WELL AS § 3322.

General Laws chapter 40A, § 17 requires that “[t]he court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require.” 40A, § 17. The Supreme Judicial Court has interpreted § 17 to require that a court hearing an appeal pursuant to 40A, § 17 apply a combination of de novo review and deference to the judgment of the municipal authority. Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953) (and case cited). The Trial Court must review the evidence and make findings of fact without deference to the board’s findings. Id.; Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987); see G.L. c. 40A, § 17. In this review, the court is not limited to the evidence that was before the board. Bicknell Realty Co., 330 Mass. at 679; Marr v. Back Bay Architectural Cmm’n, 32 Mass. App. Ct. 962 , 963 (1992); Crittenton Hastings House of the Florence Crittenton League v. Bd. of Appeal of Boston, 25 Mass. App. Ct. 704 , 713-24 (1988).

However, this review is circumscribed by the requirement to defer to the judgment of the municipal board. Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954); Geryk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979); S. Volpe & Co., Inc. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). The court is solely concerned with “the validity but not the wisdom of the board’s action.” Wolfman v. Bd. of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). A court hearing a § 17 appeal is not authorized to make administrative decisions. Pendergast, 331 Mass. at 557-58; Geryk, 8 Mass. App. Ct. at 684. If reasonable minds may differ on the conclusion to be drawn from the evidence, the board’s judgment is controlling. ACW Realty Mgmt., Inc. v, Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); Dowd v. Bd. of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-55 (1977); Copley v. Bd. of Appeals of Canton, 1 Mass. App. Ct. 821 (1973). However, in limited circumstances the Trial Court may substitute its judgment for that of the board’s, where “justice and equity” require. G.L. c. 40A, § 17; Pendergast, 331 Mass. at 558.

The court may overturn the board's decision only if the decision is “based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246. Moreover, where the court’s findings of fact support any rational basis for the municipal board’s decision, that decision must stand. MacGibbon, 356 Mass. at 639; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246.

a. Requirements of §§ 3321 and 3323

Plaintiffs argue that the Proposed Home Occupation will store materials on the exterior of the structure in which the occupation is conducted, in violation of §§ 3321 and 3323. There is nothing in the record before it to suggest that the Proposed Home Occupation intends to store materials on the exterior of the Accessory Structure as part of the design of the occupation, in violation of §§ 3321 and 3323. Therefore, the Proposed Home Occupation did not fail to meet the requirements of these sections of the Zoning By-law, and the Zoning Board’s decision is not arbitrary or capricious, for this reason. The plaintiffs’ argument, however, is that Defendant Applicant is currently engaged in such violative activity on the Property. The fact that such activity may be ongoing does not render the Board’s decision improper. Such a violation of the By-law following the proper grant of a special permit is within the purview of the Zoning Enforcement Officer of the Town of Pepperell, and not this Court.

b. Requirements of § 3322

Plaintiffs argue that § 3322 of the Zoning By-law must be interpreted to mean that a home occupation is permissible only if it is to be conducted by a resident of the dwelling in which the occupation is to be conducted. Plaintiffs continue that because the home occupation is to be conducted out of the accessory structure, the applicant did not meet the requirements of § 3320, and therefore, the Zoning Board’s decision cannot stand.

The thrust of § 3322 of the Zoning By-Law is to require that a home occupation by special permit be conducted on a lot which is the primary residence of the person(s) conducting the home occupation. Although, the phrasing suggests that the home occupation and the residential life must take place in the same dwelling structure, this is an indirect consequence of the language. The direct and express meaning of the provision is to limit to the number of person(s) who may conduct the home occupation; “solely by the person(s) occupying the dwelling as a primary residence and, in addition…by not more than two additional employees….” § 3322 (emphasis added). It appears that the term “primary residence”, as it is used in this provision, is simply to ensure that the lot is the location of a primary residence, the primary residence of the person who will conduct the proposed home occupation, and not a secondary or vacation residence. It is not for the purpose of ensuring that the location of the home occupation is not an accessory. Had this been the intent, the drafters would have included such a restriction expressly as one of the requirements of § 3320. They did not.

This construction is reinforced by § 10000 of the Zoning By-law, which defines “Home Occupation” as: “An occupation, business, trade, service or profession which is customarily incidental to and conducted in a dwelling unit or in a building or other structure accessory thereto, by a resident thereof.” I agree with the plaintiffs’ contention that this definition determines only the definition of “Home Occupation” but does not mean that all Home Occupations qualify for a special permit. Such right by special permit must still meet the requirements of § 3320. Nonetheless, this definition demonstrates the drafters’ intent to allow home occupations in accessory structures. This, coupled with the fact that § 3320 does not expressly disqualify home occupation in an accessory structure, reinforces a construction of § 3322, which envisions home occupation conducted in an accessory structure.

Moreover, even if reasonable minds could differ over the construction of § 3322 of the Zoning By-Law, the Zoning Board of Appeals of the Town of Pepperell’s interpretation of the By-Laws was reasonable and, therefore, must be given deference. The Zoning Board interpreted the By-Laws to define a “Home Occupation” as to include occupation conducted in an accessory structure. The Board explicitly found that this definition controlled the application of § 3322, to allow home occupation in an accessory structure. Therefore, the Proposed Home Occupation does not fail to meet the requirement of this section as a result of its location in an accessory structure. Accordingly, I rule that the Zoning Board’s decision was not arbitrary or capricious in this regard.

III. WHETHER THE PROPOSED HOME OCCUPATION REQUIRES SITE PLAN REVIEW

a. Section 9413

Plaintiffs argue that the Proposed Home Occupation includes the construction of six (6) parking spaces for customers and, therefore, the application required site plan review, pursuant to § 9413 of the Zoning By-law. However, plaintiffs appear to be mistaken in this fact. The application for special permit and the site plan submitted therewith reflects a proposal for the construction of only four (4) parking spaces. Compl. Ex. A. In addition, the original decision of the Zoning Board acknowledges the applicant’s site plan, which indicates the four proposed customer parking spaces. Cullinan Aff. Ex. A, attached in Pl.s’ App. Supp. Summ. J. Ex. C. Therefore, there is no genuine issue of fact on this issue. Accordingly, I rule that § 9413 does not apply to require a site plan review of the planned construction of the Proposed Home Occupation.

b. Section 9400

Plaintiffs argue also that site plan review is a prerequisite for qualification for a Home Occupation Special Permit. Presumably plaintiffs call into issue the provisions of § 9400, generally. I do not agree that site plan review is a blanket prerequisite; § 9400 specifically and inclusively lists those projects requiring such review. Plaintiffs have not demonstrated that the Proposed Home Occupation falls under one of these categories. The Zoning Board did not find that the work described in the application requires site plan approval nor, apparently, did the Planning Board of the Town of Pepperell make comment on the application during its circulation. Accordingly, I rule that the § 9400 does not apply to require site plan review of all Home Occupation Special Permits.

Moreover, even if the Proposed Home Occupation did require site plan review, § 9432 allows the Zoning Board to include conditional language, which would remedy the failure. When a by-law lists conditions that must be attached to the issuance of a special permit, the granting authority’s failure to include these conditions is not, equitably speaking, grounds for reversal of the board’s deficient decision, but often results in modification ordered by the Court. See Wizansky v. Bd. of Appeals of Brookline, 21 Mass. App. Ct. 915 (1985).

IV. PREEXISTING, NONCONFORMING USE

Lastly, plaintiffs presume that the Property, containing a three-family dwelling in the Suburban Residence District, is a preexisting, nonconforming use, because such dwelling structures are not allowed in the zoning district in which the Property is located. Plaintiffs posit, therefore, that the proposed home occupation constitutes an expansion of the nonconforming use, requiring a special permit pursuant to § 3520 of the Zoning By-law and a special finding, pursuant to G.L. c. 40A, § 6. Plaintiffs are engaging in speculation in this regard, and the Court declines to make a ruling on this issue without further facts.

CONCLUSION

For the foregoing reasons, this Court concludes that the findings of the Zoning Board of Appeals in the Decision and Supplemental Decision regarding the qualifications of the Proposed Home Occupation under §§ 3322 and 3324 were sufficient. The Board found that the Defendant Applicant signed a statement representing that the Property is her primary residence and that the Proposed Home Occupation will be conducted solely by Defendant Applicant. The Zoning Board found also that the home occupations registered with the Town Clerk for the Property would be no more than three, and that the number of resident-employees would not be more than two.

The Court concludes also that the conditions imposed on the grant of the Special Permit under § 3325 were sufficient. The Board imposed all but one of the conditions delineated in § 3325. In its Decision, the Zoning Board imposes conditions limiting the hours of operation, the off-street parking, and the maximum floor area. The Board also states that the special permit is limited to five years or the transfer of the property, whichever first occurs. Although the Board did not impose a condition on the maximum number of daily customer or other vehicle trips to the home occupation, such condition is automatic. Moreover, such trips are necessarily limited by the limited number of customer parking spots imposed by the Board and the Defendant Applicant’s own application before the Board.

The Court concludes also that the Decision and Supplemental Decision of the Zoning Board were proper under §§ 3321 and 3323 of the Zoning By-law. The Proposed Home Occupation does not propose to store materials on the exterior of the Accessory Structure as part of the design of the occupation. The Decision and Supplemental Decision of the Board were proper also under § 3322. The interpretation of the Zoning Board of § 3322 to permit home occupations in accessory structures is reasonable.

The Court concludes also that § 9413 does not apply to require site plan review of the construction of the Proposed Home Occupation. The Proposed Home Occupation does not propose the construction of six or more parking spaces. In addition, § 9400 does not apply to require site plan review of all Home Occupation Special Permits.

Accordingly, the plaintiffs’ Motion for Summary Judgment is hereby DENIED. Plaintiffs have stated that certain issues remain open for argument in this case; accordingly it is hereby:

ORDERED that the case is scheduled for a status conference on Friday, July 24, 2009, at 11:00 A.M. in courtroom 1 of the Land Court to determine what further proceedings, if any, should take place in this case prior to the issuance of a Judgment.

So Ordered.

Charles W. Trombly, Jr.

Justice

Dated: June 29, 2009