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. 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 days end. Brush and clippings from landscaping jobs are also dumped, composted, and occasionally burned on the Tobin property.
The plaintiffs argue that Tobins 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; 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 Tobins 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. 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 Tobins landscaping operations are a nuisance (Count III).
The case was tried before me, jury-waived, and a view was taken. For the reasons set forth in the courts Decision of this date, the ZBAs decision denying enforcement action is 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.
SO ORDERED.
By the court (Long, J.)
ROBERT SKYDELL, ROSEMARIE WILLET, CHARLES FITZGERALD and ROBERT CHIDSEY v. MATTHEW TOBIN, TEA LANE NURSERY AND FARMS, INC., TOWN OF CHILMARK, LEONARD JASON, JR., in his capacity as BUILDING INSPECTOR AND ENFORCEMENT OFFICER FOR THE TOWN OF CHILMARK, and ROBERT LUNBECK, WILLIAM ROSSI, FRANK LARUSSO, CHRIS MURPHY, PETER KNIGHT, RODNEY BUNKER, WENDY WELDON and MIKE MARR in their capacity as members or alternate members of the CHILMARK ZONING BOARD OF APPEALS