MISC 04-303324

April 6, 2010

DUKES, ss.

Long, J.



Plaintiffs Robert Skydell, Rosemarie Willet, Charles Fitzgerald, and Robert Chidsey live off Tea Lane Road in Chilmark near defendant Tea Lane Nursery and Farms, Inc., owned by defendant Matthew Tobin. [Note 1] The area was first zoned in December 1971 when it was designated as an Agricultural-Residential District I (ARD-I). Farms and nurseries are permitted uses in an ARD-I zone, “including the display and sale of natural products usually sold by farms and nurseries, and the raising of stock, and the storage of equipment used in connection with such uses.” Town of Chilmark Zoning By-Laws, § 4.1 (F) (hereinafter, the “Bylaw”). The Tobin business, however, includes not only the raising and sale of nursery stock, but also landscape design, construction, and maintenance services. The materials and equipment used in those landscaping operations, all of which are performed off-site, are stored on the Tobin property. The Tobin property also is the location at which the employees engaged in those activities assemble, depart to worksites, and return at day’s end. Brush and clippings from landscaping jobs are also dumped, composted, and occasionally burned on the Tobin property.

The plaintiffs argue that Tobin’s landscaping operations are not within the scope of uses permitted in ARD-I zones and thus are prohibited. The Tobin defendants disagree and, in the alternative, make three further arguments: first, that the landscaping business pre-dates the zoning of the property and is thus a protected, preexisting nonconforming use; second, that a landscaping business may be conducted from the property as of right (subject only to reasonable regulation) pursuant to G.L. c. 40A, § 3; [Note 2] and third, regardless of whether the landscaping business is permitted or protected, the plaintiffs lack standing to challenge it.

In July of 2004, the plaintiffs and others wrote to the Chilmark building inspector requesting zoning enforcement action against Tobin’s landscaping operations. When the building inspector refused that request, the plaintiffs appealed to the defendant Chilmark Zoning Board of Appeals (the “ZBA”). After a duly noticed public hearing, the ZBA denied that appeal. [Note 3] The plaintiffs then appealed that decision to this court pursuant to G.L. c. 40A, § 17 (Count I). They also requested a writ of mandamus directing the town building inspector to enforce the Bylaw (Count II) and a judgment (with associated damages and injunctive relief) that Tobin’s landscaping operations are a nuisance (Count III).

The case was tried before me, jury-waived, and a view was taken. Based upon the evidence admitted in connection with the trial, my observations at the view, my assessment of the credibility, weight, and inferences to be drawn from the evidence and the view, and as more fully set forth below, I find and rule that the plaintiffs have standing to bring this action. I further find and rule that Tobin’s landscaping operations are not permitted as of right under the Bylaw and are not permitted as an agricultural or horticultural use pursuant to G.L. c. 40A, § 3, but they are a protected, preexisting, nonconforming use. The ZBA’s decision denying enforcement action is thus AFFIRMED and the plaintiffs’ appeal from that decision is DISMISSED, WITH PREJUDICE. The plaintiffs’ petition for a writ of mandamus is DENIED and the plaintiffs’ nuisance claims are DISMISSED for lack of subject matter jurisdiction.


The majority of the plaintiffs’ properties and all of the Tobin property were once part of a single, thirty-one-acre parcel owned by George Graves from 1948 until his death in 1967 and by Mr. Graves’ daughter, Ann Graves Hunt, from 1967 until the parcel was subdivided in 1980. [Note 4] As explained more fully below, Mr. Tobin and his wife acquired the western 11.2 acres of the parcel at the time of that subdivision (the present Tobin property), with Ms. Hunt retaining (and later selling) the remainder.

The area became ARD-I zoned as of December 4, 1971. If (as I rule below) as of right uses in ARD-I zones do not include Tobin’s landscaping operations at issue in this lawsuit and if (as I rule below) those services are not within the G.L. c. 40A, § 3 exemptions, the focus turns to whether they are nonetheless allowed as protected, preexisting nonconforming uses. The Bylaw has specific provisions addressing nonconforming uses, two of which are relevant. First, the Bylaw states that “[t]he lawful use of any structure or land existing on January 15, 1973 or at the time an amendment of this bylaw becomes effective which prohibits such use, may be continued, although such structure or use does not conform with the provisions of this bylaw.” Bylaw at § 8.0. Second, “a non-conforming use which has been abandoned for a period of seven (7) years shall not be re-established and any future use shall conform with this bylaw, except as otherwise provided by law.” Id. at § 8.5. Thus, for purposes of analysis, it is important to determine whether the landscaping operations existed on the property on December 4, 1971, whether they still existed on January 15, 1973, whether they subsequently were abandoned for seven years or more, and, if they were existing in 1971 and 1973 and not so abandoned, whether today’s activities constitute a “change or substantial extension” from their state in 1971 so that they are no longer protected under G.L. c. 40A, § 6. G.L. c. 40A, § 6; Bylaw at §§ 8.0, 8.5; Powers v. Bldg. Inspector of Barnstable, 363 Mass. 648 , 653, 663 (1973).

Decision Sketch A depicts the relevant portion of the thirty-one-acre parcel (its western section) as of December 4, 1971 and January 15, 1973. It was bounded on the west by Tea Lane (a public way), with its interior accessed by gravel driveways as depicted on that sketch. The central part of the western section contained wetlands and the other parts of that section were planted with nursery stock in the places shown. The property also contained a cottage, garage, and outbuildings in the locations indicated on Decision Sketch A.

So far as the evidence shows, the parcel was used solely as a nursery during Mr. Graves’ ownership. Trial Ex. 29. After his death in 1967, Ms. Hunt inherited the property, continued its nursery operations, and added to the business the provision of “landscape design and related matters, land clearing service and nursery stock to the rapidly growing island population.” Id. The nursery and landscaping operations (then and now) were closely related – the nursery provided the plants, shrubs, and trees used at landscape projects, new nursery stock was selected with an eye to what would later be used in landscaping, and the same personnel and equipment often were used in connection with both operations.

Lawrence Schubert, who worked for Ms. Hunt and her husband in 1975 and 1976, testified that he, Mr. Hunt, Ms. Hunt, and one or more of the Hunts’ sons would spend mornings at the property “potting plants, moving plants around, . . . mowing an area, watering something, typical nursery work,” and that retail customers would come to the property during the mornings to purchase nursery products. Trial Tr., Vol. III at 66, 70-72. In addition, Mr. Hunt made and sold “decorative cement paving stones, which involved forming and pouring concrete, and usually decorated with leaves and things like that.” Id. at 72-74. In the afternoons, there would be “off-site project[s],” including “delivering plant material, planting plant material, preparing beds, mulching beds . . . a little bit of patio work” as well as “a little bit more ‘hardscape’ work [such as] dig[ging] things up, level[ing] areas, [and] maybe . . . a little rock work or stone work of some type, blue stone patio type of walkways,” i.e., landscape work. Id. at 66-68.

The equipment used in these activities during the Hunts’ ownership of the property included a pickup truck, one or two walk-behind Gravely tractors, lawn mowers, a Bobcat, a small flatbed trailer capable of hauling the tractors, mowers, and Bobcat, chainsaws, shovels, rakes, and a cement mixer. Id. at 68-70, 105. These vehicles were parked, and the equipment and supplies were stored, in and around the cottage, garage, and outbuildings at the center of the thirty-one acre parcel in the location shown on Decision Sketch A (the area now occupied by Mr. Skydell’s house). The vehicles traveled to, from, and around the property on the gravel driveways also shown on that sketch.

The gravel, sand, and cement used to make the decorative paving stones, as well as the completed stones themselves, also were stored in the cottage/garage area. As noted above, the trees, shrubs, and other plants used at landscaping jobs were grown or stored in the locations shown as “nursery plantings” on Decision Sketch A, taken from those locations, and transported to off-site jobs. Mulch, pine needles, and other materials removed from those job sites were trucked to the property and dumped in the area to the west of the cottage (as depicted on Decision Sketch A, which is now the northeast corner of the Tobin property) or towards the front of the parcel (the Tea Lane side, which is also now part of the Tobin property). Based on Ms. Hunt’s statements in Trial Exhibit 29, the close proximity in time between December 1971, January 1973, and the summer of 1975 (the date of Mr. Schubert’s first observations), the other evidence in the case regarding Ms. Hunt’s operations, and the lack of any contrary evidence, I infer and find that these activities were performed at this level and in these locations on December 4, 1971 and January 15, 1973.

Ms. Hunt’s landscape business expanded over the years to such an extent that she began hiring subcontractors to assist her crews. One of these was Mr. Tobin, a Martha’s Vineyard native, who had started his own landscaping business in 1973. Impressed with Mr. Tobin’s “promise and capability of taking over [her business] and developing its potential,” Ms. Hunt leased the entire thirty-one acres to him in 1977. Trial Ex. 29. Mr. Tobin then transferred his own landscaping business to that location, took over Ms. Hunt’s nursery and landscaping operations, and moved into the cottage with his wife.

During the period of his lease, Mr. Tobin expanded the retail component of the nursery. He developed the nursery stock left to him by Ms. Hunt and introduced new plants and fruit trees, many of which were not previously available on the Vineyard. He also operated his landscape business from the property, parking its vehicles (three pickup trucks and a dump truck), storing its equipment and supplies, and assembling its employees (approximately four, varying with the season) in and around the cottage and its outbuildings (the same area Ms. Hunt used). Like Ms. Hunt, he used trees, shrubs, and plants from the nursery in his landscaping jobs and dumped materials from those jobs in what is now the northeast corner of the Tobin property (again, the same area Ms. Hunt used).

By 1979, “realizing that the Nursery was developing into a major business and pressured by off Island interests,” Ms. Hunt decided to sell her property. Id. She subdivided it into two parcels in 1980 and, on December 22, 1980, sold the westerly 11.2-acre section (which she characterized as “the growing fields [and] nursery/landscaping operation part of the business,” Trial Ex. 29, to Mr. Tobin and his wife (again, the “Tobin property,” see n. 1, supra). The Tobin property is bounded on the west by Tea Lane and on the east by Ms. Hunt’s then-remaining land, which Mr. Tobin continued to lease until late 1982/early 1983. That remaining land was then sold to others and, after further subdivision and sales, became the Skydell, Chidsey and the bulk of the Fitzgerald properties. Access to those properties, as well as to the Tobin property, is over a forty-foot-wide right of way along the north and northeast sides of the Tobin property. Decision Sketch B. The Tobin property (but not the others) also has access to Tea Lane via the gravel driveway that curves around the southern boundary of the wetlands. Id.

Mr. Tobin and his wife moved out of the cottage in late 1982 when their first child was born, although he continued to store his equipment in the cottage and nearby area until early 1983 when he built the first storage shed on the Tobin property. Trees, plants, and shrubs from the nursery continued to be a major source of the plantings used in Tobin’s landscaping operations.

By 1983, Mr. Tobin added a chipper, an articulated spade loader (used to lift and transport trees), chainsaws, additional mowers, one or more Gravelys, and certain specialty machines (including a thatcher/slicer and a small grinder/chipper) to the pick up, dump trucks, and other equipment used in his landscaping operations. Mr. Tobin also employed five to six people during the winter months and eight to nine in the summer.

Mr. Skydell purchased his property in August 1985 (11.4 acres of the former Hunt property, directly east of the Tobin property). [Note 5] Decision Sketch B. The Skydell property included the former Hunt cottage, garage, and other outbuildings. Id. Mr. Skydell initially kept the cottage (living there during summer months and allowing Mr. Tobin’s employees to live in it during the winter), but later replaced it with a new and larger house at the same location. He permanently moved to the property in the spring of 1987. Mr. Chidsey and Mr. Fitzgerald purchased their properties and built their homes in subsequent years.

During the period from 1982 to 1989, Mr. Tobin continuously ran his business from the Tobin property even though he resided elsewhere. In 1989, he built a house on the southern portion of his property and, over the next few years, a mechanics shop and an auxiliary building were constructed in the locations depicted on Decision Sketch B. He also added to his vehicles and equipment.

Today, the Tobin business varies from thirty-one employees in the summer months to six in the winter. His equipment includes skid-steer loaders, three six-wheel dump trucks, seven or eight pickup trucks, a walk-behind tractor, a Kubota tractor, a hydroseeder, three or four heavy trailers, three smaller landscape trailers, assorted mowers, specialized landscape equipment, chainsaws and trimmers. On-site activities currently include the planting, growing and maintaining of nursery stock, the storage of landscape-related materials, overnight parking of the vehicles used on landscape jobs, the assembly and return of landscape crews (including the loading and unloading of landscape-related equipment and materials), and the composting of materials left over from landscape jobs. Approximately four times a year, Mr. Tobin’s employees also burn brush on site and the ashes are added to the compost.

Development of the Northeast Corner

The plaintiffs challenge Tobin’s landscaping operations generally, but are most opposed to their use of the northeast corner of the Tobin property — directly across the forty-foot-wide right of way from their properties. As noted above, the northeast corner originally contained nursery stock that was used in landscape jobs. By 1971, as an integral part of the Hunts’ landscaping business, it also was the primary location where trucks returning from landscape jobs dumped their loads of pine needles and mulch. Also, as noted above, the Hunts used the roads going through the northeast corner (and other portions of the Tobin property) for their business. After he began using the property for the Tobin business in 1977, Mr. Tobin continued using the northeast corner to plant nursery stock, continued dumping in that area, continued to use the roads there, and also used it to store landscaping materials.

Although Mr. Skydell testified that after he purchased his property in 1985, he noticed no activity in the northeast corner of the Tobin property and little use (except by himself) of the forty-foot-wide right of way, I do not credit this testimony. The evidence shows that Mr. Tobin did not shift the operational center of his business away from the cottage, garage, and outbuildings (located on the land now owned by Mr. Skydell) to the area shown as the “Tobin house and outbuildings” on Decision Sketch B until 1983. In addition, the Tobin business (including Tobin’s landscaping operations) continuously used the forty-foot-wide right of way and the northeast corner for landscaping and nursery activities since the way was one of only two routes in and out of the Tobin property and the northeast corner was one of a limited number of places on the property that was dry, flat, and easily accessible from the graveled ways. [Note 6] See Decision Sketch B.

In 1992 or 1993, Mr. Tobin removed topsoil from a portion of the northeast corner and replaced it with sand-based fill to improve the area for a workplace and to facilitate storing materials in that location. Mr. Tobin subsequently used it as such, as is indicated on a June 1993 site plan that shows piles of screened loam, bark mulch, firewood, stone, brush, and compost in the northeast corner, as well as “field grown nursery stock.” Trial Ex. 22. By 1995, the area was also being used to park trailers, Bobcats, dump trucks, and chippers. By 1999, according to Mr. Skydell, the following occurred regularly in the northeast corner: the loading of trucks and trailers as they prepared to go to worksites; the use of the forty-foot right of way to enter and exit the Tobin property; and the trucks’ return at the end of the day, often with cut limbs, brush, or grass that were then dumped in the northeast area.

The plaintiffs met with Mr. Tobin in October of 2001 to discuss their concerns about noise, traffic, and safety on the forty-foot right of way and what they considered to be the aesthetic degradation of the northeast corner. Following this meeting, Mr. Skydell gave Mr. Tobin a sketch of a proposal to screen off the northeast corner with plantings. Further meetings occurred in late 2001 and 2002. Based on these discussions, Mr. Tobin moved an old dump truck to another location on his land and began to plant the screening. However, photographs from December 2003 and thereafter show that the ground surface of the northeast corner remained bare, forklifts and trailers were parked there, and there were piles of sand, mulch, and other materials, including debris from worksites.

Since that time, in response to the plaintiffs’ complaints, Mr. Tobin has removed the debris piles (but not the piles of other materials), planted a screen of roughly sixty Christmas trees along the border of the right of way, and created parking areas elsewhere on his property to which many of the trucks and other vehicles have been relocated.

Other pertinent facts are included in the analysis section below.


The Plaintiffs Have Standing to Bring This Action

Standing is jurisdictional. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). In a G.L. c. 40A, § 17 case, “only a ‘person aggrieved’ may challenge a decision of a zoning board of appeals.” Id. Three of the plaintiffs are “parties in interest” within the meaning of G.L. c. 40A, § 11 (each is either an abutter (Mr. Skydell and Mr. Chidsey) or an abutter to an abutter within 300 feet of Mr. Tobin’s property line (Mr. Fitzgerald)) and thus have presumptive standing. [Note 7] “This presumptive standing recedes when the party challenging standing offers evidence supporting his or her challenge.” Hoffman v. Bd. of Zoning Appeal of Cambridge, 74 Mass. App. Ct. 804 , 808 (2009) (citation omitted). Once so challenged, the burden shifts to the plaintiff “to demonstrate that she was a person aggrieved.” Id. That burden, however, is a special one.

When the factual inquiry focuses on standing . . . a plaintiff is not required to prove by a preponderance of the evidence that his or her claims of particularized or special injury are true. Rather, the plaintiff must put forth credible evidence to substantiate his allegations. It is in this context that standing is essentially a question of fact for the trial judge. The idea of putting forth “credible evidence” of a particularized injury is equivalent to establishing a “plausible claim” of that injury: [t]he two phrases are simply different ways of expressing the same concept. A plaintiff makes a “plausible claim” of particularized injury by producing “credible evidence” of that injury. The threshold question whether [the plaintiff] has standing is different than the ultimate merit of [the plaintiff’s] allegations. Thus, the relevant question [is] whether [the plaintiff has] put forth credible evidence of a particularized injury to support her claimed status as a person aggrieved.

Id. at 809 (emphasis added; internal citations and quotations omitted).

The Tobin defendants contend that the plaintiffs have not shown a particularized injury to an interest protected by the Bylaw, claiming that the matters of which they complain (the piles of rocks, stones, slates, topsoil, sand, concrete blocks, and railroad ties; the sight and noise of dump and pickup trucks, frontloaders, backhoes, trailers, forklifts and a woodchipper; and the impact they have on the forty-foot right of way the plaintiffs share with the Tobin defendants) are nothing more than those that would result from normal farm and nursery operations, both of which are permitted as of right. [Note 8] But credible evidence indicates otherwise. Farms and nurseries have trucks, tractors, trailers, and backhoes to be sure, but there was credible evidence from which it could reasonably be inferred that these vehicles would not be in the same numbers, in the same places, of precisely the same types, and used at the same times as those engaged in the Tobin business. Further, much of the noise the plaintiffs hear at the beginning and end of the workday (the times when the landscape work crews and equipment load, depart, return, and unload) is landscape-business related. These noise and traffic impacts fall within the scope of those protected by the Bylaw. Bylaw, Art. 1, § 1 (the purpose of the Bylaw “is to promote the health, safety, convenience and general welfare of the inhabitants of the Town of Chilmark by . . . conserving . . . the rural nature of the Town . . . preventing traffic congestion and promoting traffic safety . . . preventing undue pollution of air, ground and water, and . . . conserving the unique natural, historical, ecological, cultural, scenic and other values of the Town.”); see also, e.g., Bylaw, Art. 4, § 4.2A.2.g (identifying “odors, dust, fumes, or any noise audible at the lot lines in amounts exceeding those normal to residential use” as protected interests).

Whether these aesthetic, noise, and traffic issues are sufficient to confer standing is answered by Hoffman and the more recent case of Kenner v. Zoning Bd. of Appeals of Chatham, 76 Mass. App. Ct. 1110 , 2010 WL 335577 (2010) (Mem. and Order Pursuant to Rule 1:28). In Hoffman, the Appeals Court held that the plaintiff’s diminished ability to find on-street parking on her block (even though she had no exclusive right to such parking, could presently park there only “sometimes,” and could readily find open parking spaces within several blocks of her house) was nonetheless a sufficient “particularized injury” to grant her standing to challenge a development that would add, at most, one or two vehicles to the on-street parking demand. 74 Mass. App. Ct. at 808-09. In Kenner, the Appeals Court held that when a bylaw protects views, even a minimal reduction to an ocean view from a front porch, already partially obscured by trees, was a “sufficiently perceptible and personal impact necessary to confer standing.” 2010 WL 335577 at *2 (quotations and citations omitted). Under the standards articulated in Hoffman and Kenner, Mr. Skydell, Mr. Fitzgerald, and Mr. Chidsey clearly have standing to bring this case.

Tobin’s Landscaping Operations Are Not an As of Right Use under the Bylaw

The Tobin defendants argue that the provision of off-site landscape services as conducted from the Tobin property falls within Bylaw § 4.1.F, which allows a farm and nursery as of right in the ARD-I zone. I disagree.

The interpretation of a bylaw is a question of law for the court, to be determined by the ordinary principles of statutory construction. Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981). “As always when the meaning of a statute is at issue, the initial inquiry focuses on the actual language of that statute. Where the language of a statute is clear and unambiguous, it is conclusive as to legislative intent, and the courts enforce the statute according to its plain wording, which we are constrained to follow so long as its application would not lead to an absurd result.” Martha’s Vineyard Land Bank Comm’n v. Bd. of Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 27-28 (2004). “Words that are not defined in a statute [as is the case here] should be given their usual and accepted meanings, provided that those meanings are consistent with the statutory purpose. We derive the words’ usual and accepted meanings from sources presumably known to the statute’s enactors, such as their use in other legal contexts and dictionary definitions.” Seideman v. City of Newton, 452 Mass. 472 , 477-78 (2008) (internal citations and quotations omitted).

A nursery is defined in dictionaries as “a place where young plants and trees are grown for sale or for planting elsewhere,” Concise Oxford Dictionary at 978 (10th ed. 1999), or “a place where plants are grown for sale, transplanting, or experimentation[;] . . . a place in which something is produced, fostered, or developed,” American Heritage College Dictionary at 955 (4th ed. 2002). Although a component of the Tobin business certainly includes a nursery, the vast majority of the activities at issue in this case – the provision of off-site landscaping services – do not fall within these definitions.

It is disingenuous for the Tobin defendants to claim, as they do, that Tobin’s landscaping operations are permissible because the services themselves take place off-site and the equipment they use (trucks, tractors, backhoes, and the like) are the same types of vehicles customarily found on farms and nurseries. What this ignores is obvious. The off-site landscaping activities are based on-site and have on-site impacts. There are more vehicles stored on site than there would be if the Tobin business was only an on-site nursery. These vehicles and their associated landscaping supplies and equipment are loaded and unloaded regularly (indeed, nearly daily during peak season if business is good) as they go to and from off-site jobs. Furthermore, landscape construction involves the on-site storage and transport of materials – stepping stones and pavers, rocks and stones for walls, cement, sand, stone dust, and the like – that would not be present if the site was just a nursery and thus create different (and increased) noise and visual impacts.

That the Bylaw makes a distinction between a nursery and more active conduct such as landscaping services is also apparent from the remainder of the Bylaw’s language: “nursery, including the display and sale of natural products usually sold by farms or nurseries, and the raising of stock.” Bylaw, § 4.1.F (emphasis added). This language clearly contemplates something far more passive than the daily assembly, dispatch, and return of vehicles, materials, and crews involved in landscape construction and maintenance.

The Tobin’s Landscaping Operations Are Not “Agricultural” or “Horticultural” Uses within the Scope and Meaning of G.L. c. 40A, § 3

The Tobin defendants also argue that their use of the Tobin property for their off-site landscaping business is an “agricultural” or “horticultural” use of that land within the scope and meaning of G.L. c. 40A, § 3 and thus it is exempt from any prohibitions in the Bylaw. [Note 9] Again, I disagree.

G.L. c. 40A, § 3 provides, in relevant part:

No zoning ordinance or bylaw shall . . . prohibit, unreasonably regulate, or require a special permit for the use of land for the primary purpose of commercial agriculture, [Note 10] aquaculture, [Note 11] silviculture, [Note 12] horticulture, [Note 13] floriculture, [Note 14] or viticulture. [Note 15]

As each of the statutory definitions of these activities makes clear (see n. 10-15, supra), G.L. c. 40A, § 3’s exemption is based on the primary activity at issue taking place on that land (e.g., “the cultivation and tillage of the soil,” the “growing and harvesting” of agricultural commodities or forest products, the “keeping and raising” of animals) and not the use of the land as a location for a business whose services are provided elsewhere, even if that business uses nursery products grown on site. See Bldg. Inspector of Peabody v. Northeast Nursery, Inc., 418 Mass. 401 , 405 (1994) (noting that “the raising or propagation of plant or animal life was a central and primary component of any activity deemed by the court to constitute agriculture, horticulture, floriculture, or viticulture”). Here, the “central and primary component” of the activity at issue is the design, construction, and maintenance of off-site lawns and gardens. Moreover, in addition to nursery products, the Tobin business also uses landscape construction and maintenance materials and equipment that it stores on the property and assembles and transports to its off-site job locations. The fact that some of these materials and equipment may also be associated with its on-site operations (for example, tractors and backhoes that are used in planting and woodchips or mulch that may also be sold to on-site customers) does not change the analysis. As discussed above, a business providing off-site landscaping services is materially different in type and scale from on-site nursery operations.

The Landscaping Activities at Issue are a Protected, Preexisting, Nonconforming Use

The issues in this case come before this court in the context of a G.L. c. 40A, § 17 appeal from the denial of enforcement action by Chilmark’s building inspector and ZBA. As such, “well-established principles regarding deference to local control of zoning matters” come into play. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 77 (2003). Specifically, deference is “owed to a local zoning board because of its special knowledge of the history and purpose of its town’s zoning bylaw.” Wendy’s Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381 (2009) (internal citations and quotations omitted). Further, “it is ‘the board’s evaluation of the seriousness of the problem, not the judge’s, which is controlling.’” Titcomb, 64 Mass. App. Ct. at 732 (quoting Copley v. Bd. of Appeals of Canton, 1 Mass. App. Ct. 821 (1973)).

The ZBA’s decision does not detail the reasons for its denial of enforcement action. Notice of Decision on Special Permit (Oct. 13, 2004). Generally speaking, this would result either in a remand to the ZBA to provide that detail or even, in certain circumstances, a disregard of the decision entirely. See Wendy’s, 454 Mass. at 386-87. But none of the parties to this action requested such a remand and “permissible inferences” from the decision, if clear, may provide sufficient explanation. Id. at 386. In this case, there is only one possible inference. Since the Bylaw does not permit landscape operations in this district as of right, since the Tobin defendants do not have a special permit or variance for those operations, and since the ZBA denied enforcement action, it could only have done so based on an affirmative finding that the operations at issue were a protected, preexisting, nonconforming use pursuant to G.L. c. 40A, § 6. In reviewing the ZBA’s decision, I reach the same conclusion (with or without deferring to the ZBA).

G.L. c. 40A, § 6 provides, in relevant part:

Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by [G.L. c. 40A, § 5] but shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent . . . Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.

G.L. c. 40A, § 6 (emphasis added). Although this statute can sometimes be “difficult and infelicitous” in its application, Blasco v. Bd. of Appeals of Winchendon, 31 Mass. App. Ct. 32 , 36 (1991) (quoting Fitzsimonds v. Bd. of Appeals of Chatham, 21 Mass. App. Ct. 53 , 55-56 (1985)), the first inquiry is whether the current use is a change or substantial extension of the preexisting nonconforming use. This determination is based upon the following: “(1) Whether the use reflects the nature and purpose of the use prevailing when the zoning by-law took effect. (2) Whether there is a difference in the quality or character, as well as the degree, of use. (3) Whether the current use is different in kind in its effect on the neighborhood.” Bridgewater v. Chuckran, 351 Mass. 20 , 23 (1966) (internal quotations and citations omitted); see also, e.g. Cape Resort Hotels, Corp. v. Alcoholic Licensing Bd., 385 Mass. 205 , 212 (1982); Powers v. Bldg. Inspector of Barnstable, 363 Mass. 648 , 653, 663 (1973); Titcomb v. Bd. of Appeals of Sandwich, 64 Mass. App. Ct. 725 , 728, n.4 (2005). These considerations are often collectively referred to as the “Powers test.”

If the proposed use is consistent with all of the Powers test considerations, the inquiry ends, the use is protected under G.L. c. 40A, § 6, and the project may proceed regardless of any town bylaw to the contrary. Barron Chevrolet, Inc. v. Danvers, 419 Mass. 404 , 413 (1995). Furthermore, “[t]he right to continue such a non-conforming use after adoption of zoning regulations is not personal to the particular owner or occupant on the effective date of the regulation,” but relates to the nonconforming use itself and runs with the land. Revere v. Rowe Contracting Co., 362 Mass. 884 , 885 (1972) (rescript). Here, as described in greater detail below, Tobin’s landscaping operations, as presently conducted on the Tobin property, meet the Powers test and, therefore, they are protected under G.L. c. 40A, § 6.

The Use Reflects the Nature and Purpose of the Use Prevailing When the Bylaw Took Effect

The initial question of the Powers test — whether Tobin’s landscaping operations as presently conducted “reflect[] the nature and purpose of the use prevailing when the . . . [Bylaw] took effect” (December 1971) — is easily answered in the affirmative. The Tobin property was used as a base for the provision of off-site landscaping services both then and now. In December 1971, those services consisted of “landscape design and related matters, land clearing service and nursery stock” at off-site locations, including “delivering plant material,” “planting plant material,” “preparing beds,” “mulching beds,” “patio work,” “‘hardscape’ work [such as] dig[ging] things up [and] level[ing] areas,” “rock work,” “stone work,” and walkway installation. Trial Tr., Vol. III at 66-68; Trial Ex. 29. The fact that there were mowers, rakes, and shovels and that brush and clippings were brought back to the property for dumping, shows that these services also included lawn care and maintenance. Id. at 68-70, 105. Those same activities continue to be conducted today. Trial Ex. 35 (site clearing; lawn, ground, and garden installation and maintenance; and walkway, driveway, patio, and stone wall construction). Essentially, the entire Tobin property was, and continues to be, used for landscaping and nursery activities and, therefore, “reflects the nature and purpose of the use prevailing when the zoning by-law took effect.” Bridgewater, 351 Mass. at 23.

There Is No Difference in the Quality, Character, or Degree of the Use and It Is Not Different In Kind in Its Effect on the Neighborhood

As noted above, for preexisting nonconforming uses to be protected in their current form, there must be no difference in the quality, character, or degree of the use and the current use must not be different in kind in its effect on the neighborhood. Powers, 363 Mass. at 653. As an initial matter, in order for an increase in use to not be considered “different in kind,” “the increased use must be attributable to growth of the original nonconforming use in order to fall within the rule.” Cape Resort, 385 Mass. at 214 (citations omitted). Such is the case here. The landscaping business today is fundamentally the same as the preexisting business. Indeed, nearly all of its current services (such as clearing land, planting stock, digging and mulching beds, constructing patios and walkways, mowing lawns, and lawn care service) are identical to the landscaping activities in 1971/1973. Other services have “reasonably evolved” and are “attributable to [the] growth of the original” business. Id. at 214, 227.

The plaintiffs’ argue that there has been a change in the landscape business “in quality and not merely in degree.” Marblehead v. Rosenthal, 316 Mass. 124 , 128 (1944). But this argument fails on the facts. In Rosenthal, a small family tailoring business that sent out most clothes for cleaning and only cleaned clothes on site by hand developed into a modern mechanized dry cleaning operation with all cleaning done on site. The Supreme Judicial Court found that the original business had become “of trifling importance” and that the modern establishment had a very different effect on the neighborhood, “practically the same as that of a factory.” Id. I find no such change in the quality of use in this case. There has been no change in the nature of the business analogous to that in Rosenthal. It was, and continues to be, a landscaping business. Trucks, equipment, and supplies are still stored on site. Employees still gather, depart for off-site jobs, and return from those jobs on the same gravel driveways. The number of employees and the size and number of the trucks and machines they use has increased, but the nature of the work is still that of the original landscaping business.

The analysis thus turns to an examination of the increase in use itself. Although nonconforming uses may be extended to the degree described in Powers, generally speaking, they may not be extended in area. See Billerica v. Quinn, 320 Mass. 687 , 688-90 (1947); Town of Orange v. Shay, 68 Mass. App. Ct. 358 , 361-62 (2007); Sullivan v. Bd. of Appeals of Harwich, 15 Mass. App. Ct. 286 , 288-89 (1983). Thus, in addition to determining the existence and extent of the nonconforming use as of the date it became nonconforming, there must also be a determination of the physical area “devoted to that use” at that time. Billerica, 320 Mass. at 689-90. Here, as noted above, the provision of off-site landscaping services was part of the use of the entire thirty-one acre site [Note 16] as of December 4, 1971 and January 15, 1973 and, because of its close integration (then and now) with the nursery, the area used in connection with those services (and thus “devoted to the use”) included the following areas shown on Decision Sketch A: (1) the area in and around the “cottage, garage and outbuildings” (now part of the Skydell property), [Note 17] (2) the area shown as “nursery plantings and landscape dumping area” (roughly speaking, the northeast corner of the Tobin property), [Note 18] (3) the area shown as “nursery plantings” (on the Tobin property), [Note 19] and (4) the driveways, including those that became the current forty-foot right of way (also on the Tobin property). [Note 20]

Some of those areas are not used in precisely the same way today. Then, vehicles parked and crews assembled in the area immediately surrounding the cottage, garage, and outbuildings, which is now part of Mr. Skydell’s land. Today, they park and assemble in the northeast corner and in the area around the Tobin house and outbuildings on the Tobin property. See Decision Sketches A & B. But because all of these areas were “devoted to the use” then and now, this shift does not change this analysis (whether the landscape business may expand at all in these areas, as opposed to the degree of its expansion). Then and now, all of the truck and vehicle traffic associated with the landscape business was, and remains, on precisely the same driveways in almost precisely the same locations. Then and now, nursery stock was, and continues to be, grown, stored, loaded, and unloaded in almost precisely the same locations. Then and now, brush and clippings were, and continue to be, brought back and dumped in almost precisely the same locations.

As noted above, a mere increase in volume of business does not constitute a change or substantial extension in use. Rosenthal, 316 Mass. at 128. However, “a dramatic increase in the intensity” of a use may signal such a change or substantial extension. Oakham Sand and Gravel Corp. v. Town of Oakham, 54 Mass. App. Ct. 80 , 84 (2002) (emphasis added) (thirty-fold increase in gravel operations combined with increased use of heavy equipment and doubling of the area in use constituted a qualitative change in use); see also Kreger v. Public Bldgs. Comm’r of Newton, 353 Mass. 622 , 627 (great increase in volume of oil sales held to be an extension of nonconforming use when a new wholesale use predominated); Cullen v. Bldg. Inspector of North Attleborough, 353 Mass. 671 , 675 (1968) (tenfold increase in dairy cow operation along with newly leased land and increase in equipment found to be a qualitative change in use).

Clearly, the current landscaping operation is an increase over what existed in 1971 and 1973. It employs more people. It has more equipment and vehicles. Much of that equipment is an upgrade (larger, more specialized, or both). To recap the relevant facts:

The issue thus becomes whether these increases, gradual over time, but indisputably larger today than in 1971, have been of sufficient scale to change the degree of use to make it substantially more intense and different in kind in its effect on the neighborhood. Like the ZBA, I find that Tobin’s landscaping operations have not crossed that line (i.e., that the increase that has occurred has not been a “change or substantial extension” within the meaning of G.L. c. 40A, § 6 (emphasis added) in the business’ current form and locations). This conclusion is based on the fact that the entire Tobin property was, and continues to be, used as an integrated nursery and landscaping business and there has only been a gradual and minor increase in use and traffic over the approximately forty years since the Bylaw was enacted. [Note 21] Thus, as currently conducted, the increase to the current number and type of trucks, equipment, supplies, and employees is not more intense, not a change or substantial extension, and not different in kind in its effect on the neighborhood as compared to the operations as they existed in 1971.

The Plaintiffs’ Request for a Writ of Mandamus Fails On its Merits

As apparent from the discussion above, the plaintiffs’ request for a writ of mandamus directing the Chilmark building inspector to enforce the Bylaw against the Tobin business fails on its merits. There currently is no violation subject to enforcement action.

The Plaintiffs’ Nuisance Claims Are Dismissed, Without Prejudice, for Lack of Subject Matter Jurisdiction

The plaintiffs’ claims in nuisance for damages and injunctive relief are dismissed, without prejudice, for lack of subject matter jurisdiction. They do not involve a “right, title or interest” in land and do not otherwise fall within the limited scope of matters the land court may determine. See G.L. c. 185, §§ 1 & 3A; c. 249, §§ 4, 5.


For the foregoing reasons, the ZBA’s decision denying enforcement action is thus AFFIRMED and the plaintiffs’ appeal from that decision is DISMISSED, WITH PREJUDICE. The plaintiffs’ petition for a writ of mandamus is DENIED and the plaintiffs’ nuisance claims are DISMISSED for lack of subject matter jurisdiction. Judgment shall issue accordingly.


Keith C. Long, Justice

Dated: 6 April 2010


[Note 1] Matthew Tobin and Tea Lane Nursery and Farms, Inc. are hereafter referred to as the “Tobin defendants,” Tea Lane Nursery and Farms, Inc. as the “Tobin business,” the 11.2-acre site on which that business is located as the “Tobin property,” and the landscaping part of that business as “Tobin’s landscaping operations” (the other part is the nursery). The Town of Chilmark, its building inspector, and the members of its zoning board of appeals will be referred to as the “municipal defendants.”

[Note 2] G.L. c. 40A, § 3 indicates that no zoning “ordinance or by-law [shall] prohibit, unreasonably regulate or require a special permit for the use of land for the primary purpose of commercial agriculture, aquaculture, silviculture, horticulture, floriculture, or viticulture . . . .”

[Note 3] The relevant part of the ZBA’s decision reads as follows: “Notice of Decision on Special Permit. Application under Article 4, Sections 4.2, 4.2A and 4.2B, requesting an appeal of the building inspector’s refusal to enforce Chilmark zoning laws with respect to a landscape construction business, Tea Lane Nursery, located on Tea Lane, Chilmark — Assessor’s map 7 lots 10.2 and 10.7. The application was heard at a duly posted hearing held on 10/12/04. The Board did not approve the application.” Chilmark Board of Appeals, Notice of Decision on Special Permit (Oct. 12, 2004).

[Note 4] All of the Tobin, Skydell, and Chidsey properties were originally part of this thirty-one-acre parcel. Much of Mr. Fitzgerald’s property was as well, but his house is located on an abutting lot to the east.

[Note 5] Plaintiff Rosemarie Willet resides at the Skydell property, but has no ownership interest.

[Note 6] The Bylaw provides that a nonconforming use, unless changed to a conforming one, may be reestablished so long as it has not been abandoned for a period of seven years. Bylaw at §§ 8.5, 8.6. Under any view of the facts, there has never been a seven year abandonment of landscape operations since their inception.

[Note 7] As noted earlier, Ms. Willet has no ownership interest in the Skydell property, but does reside there. See n. 5, supra. She therefore has no standing, but since I find that the other three plaintiffs have standing, it is not material to this Decision.

[Note 8] As discussed more fully below, the operation of an off-site landscaping business is not a farm or nursery use as defined in the Bylaw.

[Note 9] Whether the landscaping business is permissible as a protected, preexisting nonconforming use is a separate question, discussed below.

[Note 10] The statute specifically incorporates the definition of “agriculture” contained in G.L. c. 128, § 1A (“‘Farming’ or ‘agriculture’ shall include farming in all of its branches and the cultivation and tillage of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural, aquacultural, floricultural or horticultural commodities, the growing and harvesting of forest products upon forest land, the raising of livestock including horses, the keeping of horses as a commercial enterprise, the keeping and raising of poultry, swine, cattle and other domesticated animals used for food purposes, bees, fur-bearing animals, and any forestry or lumbering operations, performed by a farmer, who is hereby defined as one engaged in agriculture or farming as herein defined, or on a farm as an incident to or in conjunction with such farming operations, including preparations for market, delivery to storage or to market or to carriers for transportation to market.”). G.L. c. 40A, § 3.

[Note 11] “Aquaculture” is “the rearing or cultivation of aquatic animals or plants.” Oxford Concise Dictionary at 66 (10th ed. 1999).

[Note 12] “Silviculture” is “the growing and cultivation of trees.” Oxford Concise Dictionary at 1337.

[Note 13] “Horticulture” is “the art or practice of garden cultivation and management.” Oxford Concise Dictionary at 686. The statute explicitly states that “the term horticulture shall include the growing and keeping of nursery stock and the sale thereof. Said nursery stock shall be considered to be produced by the owner or lessee of the land if it is nourished, maintained and managed while on the premises.” G.L. c. 40A, § 3. “Nursery stock” is defined in G.L. c. 128, § 1 as “trees, shrubs, woody plants and strawberry plants, whether wild or cultivated, and parts thereof for propagation.”

[Note 14] “Floriculture” is “the cultivation of flowers.” Oxford Concise Dictionary at 545.

[Note 15] “Viticulture” is “the cultivation of grape vines.” Oxford Concise Dictionary at 1603.

[Note 16] With the exception of the wetlands area, which is likewise not used for the Tobin business today.

[Note 17] The area where workers assembled, vehicles parked, equipment and supplies were stored, and the decorative paving stones were manufactured.

[Note 18] An area regularly accessed by landscape vehicles and workers to plant, grow, and obtain trees, shrubs, and plants used at landscape jobs and to dump mulch and pine needles returned from those jobs.

[Note 19] Again, an area regularly accessed by landscape vehicles and workers to plant, grow, and obtain trees, shrubs, and plants used at landscape jobs.

[Note 20] The driveways were used by landscape vehicles and workers to get to, from, and around the site. Besides providing access to the nursery plantings, these driveways were also the sole means of access to the cottage, garage, and outbuildings.

[Note 21] The increase in traffic is not significant. There are presently more vehicles and equipment, to be sure, but they are either parked or off-site except for the relatively brief time it takes them to assemble, load, and depart at the beginning of the work day and return at its end. The landscaping work itself is performed off site. The true on-site impacts of the landscape business are visual (the sight of parked vehicles and piles of materials) and the noise of the vehicles and crews as they assemble, load, depart, and return. As currently conducted, those impacts are well within an allowable expansion and are not a “change or substantial extension.”