NANCY E. THOMPSON vs. GARY P. LILIENTHAL, JAMES PARENT, TOBE DEUTSCHMANN, JEFFREY BARNES, LAVERNE LOVELL, as they constitute the BOARD OF APPEALS FOR THE TOWN OF DOVER

Plaintiff filed her unverified Complaint on August 17, 2007, pursuant to G. L. 40A, § 17, appealing a decision of Defendant Dover Board of Appeals which upheld the Town of Dover Building Inspector’s (the “Building Inspector”) denial of Plaintiff’s right to connect a septic system to a converted structure on property owned by Plaintiff and located at 36 Pegan Lane, Dover, Massachusetts (“Locus”). [Note 1], [Note 2] A case management conference was held on September 26, 2007. Defendant filed its Motion for Summary Judgment on February 2, 2009, together with supporting memorandum, Statement of Material Facts, Appendix, and Affidavits of Laverne Lovell, Susan Hall, and Anthony Calo. On March 16, 2009, Plaintiff filed her Opposition, together with Statement of Additional Material Facts, Appendix, and Affidavit of Walter G. Thompson (the “Thompson Affidavit”). Defendant filed its Reply on March 26, 2009, and Plaintiff filed her Limited Response on April 16, 2009, together with Affidavit of Kathleen E. Connolly. A hearing was held on the summary judgment motion on April 27, 2009, at which time the motion was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

This court finds that the following facts are not in dispute:

1. Plaintiff purchased Locus by deed dated June 1, 1982. Locus consists of approximately 21.507 acres of land off Pegan Lane in Dover.

2. Locus is situated within a R-2 zoning district. Section 185-10 (Schedule of Use Regulations) of the Zoning Bylaws of the Town of Dover (the “Bylaws”) restricts each lot within such district to one single-family dwelling.

3. On May 3, 2000, Plaintiff filed an approval not required (“ANR”) application with the Town of Dover Planning Board (the “Planning Board”) proposing to divide Locus into three lots as shown on a plan titled “Plan of Land in Dover, MA” dated April 27, 2000, prepared by Cheney Engineering (the “ANR Plan”). The Planning Board approved Plaintiff’s ANR application and endorsed the ANR Plan on May 24, 2000.

4. The ANR Plan shows Lot 1 containing 10.109 acres, Lot 2 containing 5.930 acres, and Lot 3 containing 8.753 acres. [Note 3] The ANR Plan shows that Lot 1 contains a single-family home, a barn, and a cottage, and that Lot 2 contains a tennis court. The ANR Plan shows no structures on Lot 3. Lot 3 has an address of 36 Pegan Lane in Dover.

5. Plaintiff filed an application with the Planning Board for a shared driveway (the “Common Driveway”) servicing Lot 1 and Lot 3 through the frontage of Lot 1, pursuant to Section 185-19(3) of the Bylaws. [Note 4], [Note 5] By vote of the Planning Board taken on August 9, 2001 (the “Planning Board Decision”), the Planning Board voted unanimously “to adopt the findings presented to the Board as modified, a copy of which shall be attached to these minutes.” The seventh finding to the Planning Board Decision stated:

Applicants have proposed to the Board a covenant and driveway easement agreement which will be recorded to assure that (1) the owners of Lots 1 and 3, and their successors in interest will have the perpetual right to use the proposed “shared driveway”, (2) the shared access remains practical, safe and efficient for vehicles, (3) no dwellings or other structures will be constructed on the northern portion of Lot 3, thereby assuring the Town that this scenic part of Pegan Lane will not be developed, (4) there will be no further subdivision of Lot 1 or 3, and (5) neither Lot 1 nor Lot 3 will be used for more than one single family dwelling and appurtenant structures, each.

The Planning Board also found that the Common Driveway was “practical, safe and efficient access for two residences.” The Planning Board then voted unanimously to approve the shared driveway access to Lot 3 through Lot 1, “subject to the delivery and recording of a covenant and easement addressing the matters in Finding 7 above, the form of which covenant shall have been approved by the Board prior to recording.” The Planning Board Decision was filed with the Dover Town Clerk on September 12, 2001. Plaintiff did not appeal the Planning Board Decision.

6. In connection with the Common Driveway, a Covenant and Driveway Easement Agreement dated September 12, 2001 (the “Agreement”), executed by Plaintiff, her husband, and the Planning Board stated that the Agreement was “in consideration of the approval of the alternate access as approved by the Planning Board for Lot 3” and provided, in part, that

[n]either Lot 1 nor Lot 3 shall be subdivided, and this restriction and covenant shall run with the land in perpetuity or for as long as permitted by law. . . . . This Agreement has been executed and delivered and shall be recorded in connection with certain action by the Planning Board of the Town of Dover, and may not be revoked, terminated, amended or waived without the vote of the Planning Board. This Agreement may be enforced by the Planning Board and/or by the person charged with enforcing zoning violations in the Town of Dover . . . .

7. An action brought by Theodore Fisher (an abutter) against Plaintiff, the Planning Board, and the Building Inspector (the “Fisher Lawsuit”) appealing the Planning Board Decision was filed on September 27, 2001, in Norfolk Superior Court (C.A. No. 01-1511). This action was eventually settled.

8. On January 1, 2002, Plaintiff applied for a building permit for a single-family home on Lot 3. The single-family home was built on the southerly portion of Lot 3 and an occupancy permit was issued on April 2, 2004.

9. Plaintiff conveyed Lot 1 to Pegan Lane Holdings LLC by deed dated April 6, 2004. What remained of Locus (Lot 2 and Lot 3) was retained by Plaintiff (“Plaintiff Property”). Plaintiff Property consists of approximately 14.68 acres and contains a farm known as Goat Hollow Farm (the “Farm”). [Note 6]

The Farm currently raises and sells firewood, nursery stock, flowers, hay, apples, irises, and daylilies.

10. By application dated June 10, 2004, Plaintiff (through a contractor) applied for a building permit to convert a detached and finished barn on Lot 3 into a garage. [Note 7] The application described the work as “detached finished barn/garage” (the “Barn”). [Note 8] By letter dated March 10, 2005 (“Building Inspector Decision 1”), the Building Inspector stated, in part, that

[t]he [building] permit was issued to “Change detached finished barn into garage”. The finished project appears to be a second dwelling on the same property, 36 Pegan Lane. The Town Bylaws allow only one dwelling on one lot.

The solution is to disconnect the new second septic tank and then I will issue both a final inspection and occupancy based on the fact that the building was changed from a barn into a garage with a studio on the second floor and storage rooms on the third floor.

You may appeal my decision not to issue a final inspection and occupancy to the Dover Zoning Board of Appeals.

Building Inspector Decision 1 was never appealed, and Plaintiff disconnected the septic system. On April 21, 2005, the Building Inspector signed off on the building permit for the revised structure, describing the proposed work as “change detached finished barn into garage.”

11. By letter dated April 10, 2006, Plaintiff advised the Building Inspector that she intended to reconnect the septic system to the Barn because employees of the Farm needed to live in the Barn. [Note 9] The Thompson Affidavit states that Plaintiff intends to hire “an individual to assist with the labor for the Farm and intend to have that individual reside in the barn while working on the Farm. We will charge no rent for that farm laborer’s use of the barn, but, rather, lodging will be part of his compensation.” By letter dated April 18, 2006, the Building Inspector issued a decision (“Building Inspector Decision 2”) denying Plaintiff’s right to reconnect the septic system for the Barn. Building Inspector Decision 2 stated, in part, that

Chapter 40A Section 3 [“Section 3”] Agricultural exemption does not exempt existing structures thereon for the primary purpose of agriculture or horticulture from the Bylaws. It does not exempt from the Bylaws a building that is used as a second dwelling in the same lot.

It is my decision that Chapter 40A does not exempt the use of the newly constructed barn/garage as a second dwelling on the same property.

12. On June 9, 2006, Plaintiff appealed Building Inspector Decision 2 to Defendant. Defendant held public hearings on the matter, and on July 31, 2007, voted (the “ZBA Decision”) to deny Plaintiff’s appeal of Building Inspector Decision 2. Defendant made the following four findings in the ZBA Decision:

1. The Board found that the locus was used for some minor farm activity, but the locus was not used for the primary purpose of agriculture. Whether future agricultural use of the property would rise to the level of a primary use was entirely speculative, based on the Board’s view of the limited evidence of such future plans. The Board found that the current primary use of the locus was as the Thompsons’ residence.

2. The Board also found that the newly constructed space was not used for the primary purpose of agriculture, but was intended and, if the relief requested were granted, would serve primarily a residential purpose [“Finding 2”].

3. The Board also found that the new construction had not been built for the purpose stated on the building permit - as “a barn converted to a garage”, and therefore was not properly permitted for occupancy as a dwelling. The Board therefore determined that it could not reverse the Building Inspector’s refusal to allow it to be connected to a septic system, which would allow the structure to be used as a dwelling.

4. The Board also found that it was without jurisdiction to release the applicant from the conditions in the Planning Board approval, and the covenant the Thompsons entered into with the Planning Board. Because it was without power to release the prohibition on a second dwelling unit on the locus, the Board could not allow the space to be occupied as a dwelling unit in violation of the covenant and the Planning Board’s decision [“Finding 4”].

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In its motion and supporting brief, Defendant moves for summary judgment upholding the ZBA Decision based on two of the findings in the ZBA Decision (Finding 2 and Finding 4). [Note 10] Plaintiff filed with this court a letter dated January 5, 2010, attached to which Plaintiff included a copy of a recently decided Norfolk Superior Court case involving rulings by the Dover Conservation Commission and the Massachusetts Department of Environmental Protection concerning the Farm. Since those rulings involved the issue of whether Locus was agricultural in use under the state wetlands laws, this court shall strike the filing, even assuming its relevance, because the case at bar does not involve state wetland laws. In arguing that both Finding 2 and Finding 4 were reasonable and within the scope of its authority, Defendant first asserts that, under Finding 2, the proposed residential use of the Barn was not a use for the primary purpose of agriculture. Defendant also claims that, under Finding 4, it had no jurisdiction to address (let alone contradict) the Planning Board Decision, as confirmed by the Agreement, because the Planning Board Decision was never timely appealed. Plaintiff argues that Finding 2 and Finding 4 are erroneous. I shall examine each of these two findings in turn.

Finding 2 (Whether the Barn’s Primary Purpose is Agricultural).

Plaintiff first asserts that the Farm “is unquestionably in agricultural use” in context of Section 3. Plaintiff then reasons that the Barn is exempt from local zoning as it is used directly in agricultural pursuits, or, in the alternative, that the Barn is incidental to a permissible activity (i.e. agricultural use) for the Farm. Defendant claims that the Barn’s use is not exempted under Section 3 as it is not a use for the primary purpose of agriculture. With respect to whether the Farm itself is used for the primary purpose of agriculture, Defendant expressly reserves this argument for trial and argues that such question is beyond the scope of its motion for summary judgment.

Section 3 provides, in part:

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, . . . horticulture, floriculture or viticulture, nor prohibit, unreasonably regulate or require a special permit for the use, expansion, reconstruction or construction of structures thereon for the primary purpose of commercial agriculture, aquaculture, silviculture, horticulture, floriculture or viticulture, . . . For the purposes of this section, the term “agriculture” shall be as defined in section 1A of chapter 128, and 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. [Note 11]

G. L. c. 128, § 1A (“Chapter 128”) states that

“[f]arming” 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.

In looking at whether the Barn is used for a primarily agricultural use, this court’s focus shall be directed toward “the use of [the] ‘structure,’ not the use of an element or part of a structure.” Martin v. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter_Day Saints, 434 Mass. 141 , 149 (2001). Such inquiry reveals certain structures that have been found to be agricultural uses. See e.g., Prime v. Zoning Bd. of Appeals of Norwell, 42 Mass. App. Ct. 796 , 800 (1997) (finding that a retail farm stand was an agricultural use); Tisbury v. Martha’s Vineyard Comm’n, 27 Mass. App. Ct. 1204 , 1206 (1989) (finding that a fuel tank used to serve a large greenhouse-nursery could not be denied under Section 3). [Note 12]

In the case at bar, it is clear that Plaintiff intends to use the Barn to house employees of the Farm. The parties failed to supply, and this court did not find, appellate case law indicating that such residential use of a structure is a primary agricultural use. Moreover, this court is not convinced that, based on the facts of this case, such use can be reasonably considered to be for the primary purpose of commercial agriculture. In fact, nothing in Section 3 supports Plaintiff’s position that the Barn’s use is primarily agricultural. Rather, Chapter 128’s definition of the terms “farming” and “agriculture” appears to focus on the earth to be cultivated and the products (plants or animals) to be grown or raised from such land. Defendant points to the absence, in Chapter 128’s definition of farming, of any mention of human habitation or housing, and contends that case law does not support including residential structures as an agricultural use. [Note 13] Chapter 128’s focus, along with Section 3’s further limitation that the structures be for the “primary purpose of commercial agriculture, aquaculture, silviculture, horticulture, floriculture or viticulture,” precludes the inclusion of employee housing. Defendant also argues that allowing additional housing on the Farm essentially converts a single-family zoning district into a multi-family zoning district, which is counter to the purpose of the Bylaws.

In light of the above, I find that the Barn is not exempted from the Bylaws, pursuant to Section 3, as a structure in use for the primary purpose of commercial agriculture.

That the Barn’s use is not primarily commercial agriculture in nature does not dispose of the issue of whether the Barn’s use as a dwelling for farm employees is protected under Section 3 as an incidental use to a use allowed by the Bylaws, given Chapter 128’s definition of agriculture as including uses “on a farm as an incident to or in conjunction with such farming operations.” Whether a use is incidental to an agriculture use is determined by the Henry test. See Henry v. Bd. of Appeals of Dunstable, 418 Mass. 841 , 844 (1994) (“Uses which are ‘incidental’ to a permissible activity on zoned property are permitted as long as the incidental use does not undercut the plain intent of the zoning by_law.”). [Note 14] Identifying an incidental use “is a fact-dependent inquiry, which both compares the net effect of the incidental use to that of the primary use and evaluates the reasonableness of the relationship between the incidental and the permissible uses.” Id. In zoning parlance, an incidental use

means that the use must not be the primary use of the property but rather one which is subordinate and minor in significance. . . . But “incidental,” when used to define an accessory use, must also incorporate the concept of reasonable relationship with the primary use. It is not enough that the use be subordinate; it must also be attendant or concomitant. [Note 15]

Id. at 845 (citing Harvard v. Maxant, 360 Mass. 432 , 438 (1971)).

However, for multiple reasons, such investigation is not yet ripe for review by this court. First, this court has yet to address whether the Farm itself is an agricultural use for the purposes of Section 3, which is a necessary step prior to determining whether a use is incidental. After all, the previously mentioned rule set forth in Henry allows for incidental uses to permissible activities. The Barn’s status as an incidental use would be mooted by a finding that the Farm is not protected by Section 3. Moreover, Defendant asserts that summary judgment is improper for this discussion given a dispute of facts. Finally, while Plaintiff seeks a finding from this court that the Barn is an allowed incidental use in her Opposition, Defendant–the moving party–failed to move for summary judgment on this issue.

As a result, I refrain from finding whether the Barn is exempted from the Bylaws, pursuant to Section 3, as an incidental use to a permissible activity. [Note 16]

Finding 4 (The effect of the Planning Board Decision and the Agreement).

Defendant argues that it had no jurisdiction to lift the restrictions imposed upon the parties to the Planning Board Decision and the Agreement. Plaintiff contends that since the Agreement does not prohibit the construction of a second residential dwelling, such condition cannot be enforced. Plaintiff also asserts that Defendant is not bound by other decisions and agreements entered into by other local boards. [Note 17]

The Planning Board Decision stated that “(4) there shall be no further subdivision of Lot 1 or 3, and (5) neither Lot 1 nor Lot 3 will be used for more than one single family dwelling and appurtenant structures, each.” The Agreement, however, only incorporated condition 4 and not condition 5, notwithstanding the fact that the Planning Board voted that the Agreement would be “addressing the matters in Finding 7 above.” [Note 18] The Agreement, which was required by the Planning Board Decision, provided that it “may not be revoked, terminated, amended or waived without the vote of the Planning Board.” [Note 19] However, irrespective of the Agreement, the Planning Board Decision contained both conditions, and the Planning Board Decision was not appealed by Plaintiff. As such, the Planning Board Decision remains valid and binding. It is clear that a second residential dwelling on Lot 1 would violate the Planning Board Decision’s prohibition from using Lot 1 for more than for one single-family dwelling. [Note 20] In light of the above, I find that Defendant had no jurisdiction to address the Planning Board Decision, and such decision stands.

In light of the foregoing, I find that Finding 2 and Finding 4 were reasonable and within the scope of Defendant’s authority, and, thus, the ZBA Decision is not unreasonable, arbitrary, or capricious. As such, I ALLOW Defendant’s Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: June 22, 2010