MISC 333850

January 20, 2009


Trombly, J.


This action was commenced by plaintiffs, Carol J. Holley and Charles L. Abraham, on December 4, 2006, as an appeal pursuant to G.L. c. 40A, § 17. Plaintiffs seek to overturn a decision of the defendant, the Zoning Board of Appeals of the Town of Acton, denying the plaintiffs’ application to overturn a cease and desist order issued by the Acton Building Commissioner regarding the plaintiffs’ use of a parcel of real property known as and numbered 39 Pope Road in Acton.

On November 2, 2007, defendants filed a motion for summary judgment. On November 9, 2007, plaintiffs filed a cross-motion for summary judgment. On December 4, 2007, defendants filed an opposition to the plaintiffs’ motion, and on the same day, plaintiffs filed an opposition to the defendants’ motion. The motions were argued on December 4, 2007, and are the matters presently before the Court.

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

1. Plaintiff, Carol J. Holley is the owner of a parcel of land, known as and numbered 39 Pope Road in Acton (the Property). Ms. Holly, plaintiff Charles L. Abraham, and their son Jacob Abraham reside at the Property.

2. The Property is located in the R-2 Zoning District of the Town of Acton.

3. Mr. Abraham and his son own and operate a commercial business engaged in tree cutting, removal, and logging, known as Axe Brothers Tree Service.

4. In conjunction with that business, Mr. Abraham owns a logging truck and trailer as well as a dump truck.

5. The logging truck is registered as a commercial vehicle and can hold tree trunks in its flatbed area. It consists of four axles and weighs thirty-one thousand (31,000) pounds.

6. Mr. Abraham parks the logging truck and occasionally the dump truck on the driveway of the Property. Generally, the trucks are parked overnight and driven away during the day for use in the business.

7. Occasionally, Mr. Abraham has saws and hardhats, or logs in the flatbed area of the logging truck while it is parked on the Property.

8. Garry A. Rhodes is the Building Commissioner of the Town of Acton.

9. On June 29, 2006, the Building Commissioner received a complaint for enforcement of a perceived zoning violation at the Property. On July 12, 2006, after viewing the Property, the commissioner issued a cease and desist order to plaintiffs, requiring them to discontinue parking logging trucks on the Property.

10. The cease and desist order cited as its reasons §§ 3.1 and 3.7 of the Zoning Bylaws of the Town of Acton.

11. Plaintiffs applied to the Zoning Board of Appeals of the Town of Acton, seeking to have the order overturned. After a public hearing on October 2, 2006, the Zoning Board did not obtain the requisite unanimous vote needed to overturn the Building Commissioner’s order.

12. On November 16, 2006, the Zoning Board filed a written decision with the Town Clerk. The decision stated as its reasons for denying the plaintiffs’ application §§ 3.1 and 3.7 of the Acton Zoning Bylaws.


Summary judgment is granted 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 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. 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.” Id. at 248. 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.” Id.

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 Communications Corp., 410 Mass. 805 , 809 (1991). However, 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 1] 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. Rule 56(c).

An appeal pursuant to G.L. c. 40A, § 17 is a de novo review of a municipal board’s decision. However, such review is limited by the standard that the Court cannot disturb that decision “[…] unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” See Roberts. v. Southwestern Bell Mobile Systems, Inc., 429 Mass. 478 , 486 (1999); MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639, (1970); Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355 (2001).

In cases of a zoning bylaw, interpretation is a question of law for the Court. Needham v. Winslow Nurseries, Inc., 330 Mass. 95 , 99 (1953). The Court must interpret the bylaw “[…] in accordance with ordinary principles of statutory construction, with some measure of deference given to the board’s interpretation.” APT Asset Mgt., v. Bd. of Appeals of Melrose, 50 Mass. App. Ct. 133 , 138 (2000); see Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. (2003); see also Livoli v. Zoning Bd. of Appeals of Southborough, 42 Mass. App. Ct. 921 , 923 (1997).

Section 3.1 of the Zoning Bylaws of the Town of Acton states that “[n]o land, structure, or building shall be used except for the purposes permitted in the district as set forth in this section, […].” § 3.1. In the case of the R-2 Zoning District, §§ 3.5.1 to 3.5.25 expressly provide for certain principal uses by right or by special permit, including “General Uses;” “Residential Uses;” and “Governmental Institutional & Public Service Uses.” These sections also expressly prohibit certain principal uses, including some “Business Uses” and all “Industrial Uses.” §§ 3.5.1-3.5.25. In addition, § 3.7 prohibits use of a “[s]torage yard, contractor’s yard or other open air establishment for storage, distribution, or sale of materials, merchandise, products or equipment[]” in all zoning districts.

Defendants argue that the plaintiffs’ parking of the lumber truck and dump truck on the Property is a violation of the zoning bylaws. Specifically, defendants contend that the parking of large commercial vehicles is not expressly permitted by right, or even, special permit in the bylaws, and therefore, is prohibited. Defendants’ point out that no business or industrial uses are permitted by right in the R-2 District. Defendants’ therefore, conclude that the Zoning Board of Appeals of the Town of Ayer properly denied the plaintiffs’ application to overturn the cease and desist order of the Acton Building Commissioner.

The Court agrees that the bylaws do not permit certain business or industrial uses in the R-2 district. As with most ordinances governing zoning districts, § 3.1 expresses those uses that are allowed by right. The purpose of a by right use is to allow those uses that are desirable in a given district and prohibit those that are not. Nevertheless, the bylaw could never encompass every imaginable use to which property might be put. Every use requires some measure of determination and categorization.

Plaintiffs contend that the parking of commercial vehicles should not be categorized as a business or industrial use, but rather an ancillary and inherent aspect of residential life. In fact, plaintiffs point out that the ordinance does not regulate parking one way or the other in the R-2 District. Certainly, if a strict exclusionary rule were to apply, no parking would be allowed for residences in the district. Obviously, this cannot be the intent of the ordinance. However, neither can a strict inclusive rule apply—imagine a neighborhood with industrial machinery in every driveway.

As the Zoning Board noted, it is not uncommon for residents to park commercial vehicles at the house. Some residents may have only one car that serves both their personal needs as well as the operation of their business. It would not serve the purpose of the bylaw to restrict the use of commercial vehicles that are no different than private vehicles. However, it is clear that a vehicle with the dimensions, mass, and properties of the lumber and dump trucks is sufficient to categorize the use of that vehicle from residential to industrial. The determination of the Zoning Board, in this regard, is not legally untenable.

Defendants’ also argue that the parking of the trucks on the Property constitutes a storage yard, within the meaning and in violation of § 3.7 of the Acton Zoning Bylaws. It is undisputed that plaintiffs park the logging truck at the Property each night and the dump truck occasionally, along with various equipment and products of their logging business. Plaintiffs argue that the common definition of the term storage is “to keep for future use.” Plaintiffs contend that because the vehicles are registered and operable, and because they park their trucks on the Property and drive them to work every day, the trucks are not “stored”, within the meaning of § 3.7. The Court disagrees. The trucks and logs are clearly the products and equipment of the plaintiffs’ logging business. This equipment is kept on the Property overnight for use each morning in that business. I defer to the decision of the Zoning Board in this determination.

Plaintiffs contend that the decision by the board was arbitrary. Specifically, plaintiffs argue that the town has treated them disparately by choosing to enforce the zoning bylaw against them and not against other owners of commercial vehicles. Plaintiffs also argue that the Building Commissioner acted arbitrarily because he had actual knowledge of the alleged violation since sometime in 1988 and because he applied a standard to determine the applicability of the bylaws that is both vague and not authorized by the bylaws. Plaintiffs conclude that the Zoning Board acted unreasonably in refusing to overrule such arbitrary action of the Building Commissioner. The Court disagrees.

Firstly, the argument of disparate treatment is unfounded. Plaintiffs have introduced no evidence of such discrimination. On the contrary, defendants have shown that the town has acted to enforce the bylaws where large commercial vehicles are involved.

Secondly, the Court is not persuaded that the Building Commissioner’s actions were so arbitrary as to be grounds for reversing the decision of the Zoning Board. The Building Commissioner, in his capacity, made an interpretation of the bylaws and enforced them against plaintiffs. This is the role of the building commissioner; his reasons and actions are subject to review by the Zoning Board where challenged, as here. Had there been no reason for such enforcement, the refusal to overrule the enforcement by the Zoning Board would have been arbitrary. However, as previously ruled herein, the Zoning Board had good reason to believe that the plaintiffs’ use was a violation of the bylaws and therefore, the denial of the plaintiffs’ application was, therefore, not arbitrary.


For the foregoing reasons, this Court concludes that the Zoning Board of Appeals of the Town of Acton acted properly in denying the plaintiffs’ application to overturn the cease and desist order of the Acton Building Commissioner. Plaintiffs’ use of the Property can fairly be ruled to be a violation of the Action Zoning Bylaws, and the Zoning Board did not act arbitrarily. These being matters of law, the defendants’ motion for summary judgment is hereby ALLOWED and the plaintiffs’ motion for summary judgment is DENIED.

Judgment shall issue accordingly.

Charles W. Trombly, Jr.


Dated: January 20, 2009


[Note 1] A motion for summary judgment can rest in whole or in part on facts set forth in the moving party’s pleadings if, but only if, they are conceded in the opposing party’s pleadings. Cmty. Nat’l Bank, 369 Mass. at 557 n.6. It may also rest on the allegations contained in the opposing party’s pleadings. G. L. c. 231, § 87 (“in any civil action pleadings shall not be evidence on the trial, but the allegations therein shall bind the party making them”).