MISC 04-298839

August 27, 2010

Sands, J.


Plaintiffs Robyn Wright and Joseph D. Wright filed their unverified Complaint on April 4, 2004, seeking: (1) an appeal, pursuant to G. L. c. 40A, § 17, of a decision of Defendant Board of Appeals of the Town of Groveland (the “ZBA”) which granted a special permit to Defendant Vincent J. Fiore (“Fiore”) allowing home office use for the business of J & J Ponies (as hereinafter defined) at property owned by Fiore located at 104 King Street, Groveland, Massachusetts (“Defendant Property”); [Note 1] (2) a judicial determination, pursuant to G. L. c. 240, § 14A, as to the applicability of the agricultural exemption to the use of an easement (the “Easement”) providing access to Defendant Property across property owned by Plaintiffs and located at 102 King Street, Groveland (“Plaintiff Property”); (3) a declaratory judgment, pursuant to G. L. c. 231A, § 1, as to the interpretation of the Easement; (4) a preliminary injunction prohibiting Fiore from riding or walking horses on the Easement; and (5) an abatement of the nuisance of Fiore’s storage of large amounts of horse manure near Plaintiff Property. The ZBA filed its Answer on June 22, 2004, and Fiore filed his Answer on July 6, 2004. On October 4, 2004, Fiore filed a Motion for Preliminary Injunction. On October 28, 2004, this court granted Fiore’s Motion for Preliminary Injunction (the “Order”), ordering that

Plaintiffs shall be enjoined from placing objects or conducting activities on the twelve-foot paved driveway within the Easement that impedes access to Fiore’s Property, and no permanent objects shall be placed anywhere within the Easement; provided, however, the speed bumps and speed limit signs that currently exist shall remain in place to control vehicle speed within the Easement.

Fiore filed a Complaint for Contempt relative to the Order on November 30, 2004. An evidentiary hearing was held on December 28, 2004, and this court issued a decision and judgment on February 4, 2005, finding that Robyn Wright’s walking of her dog in the Easement on November 17, 2004, and the placement of sawhorses in the Easement by Plaintiffs, were not a clear and undoubted disobedience of the Order. At that time the case was closed.

At a status conference on October 9, 2008, the parties stated that this case had been closed in error as a result of the judgment issued on February 4, 2005, and asked this court to reopen the matter. Plaintiffs filed an Amended Complaint on October 21, 2008, adding six new counts. At a hearing on November 6, 2008, this court denied the motion to amend the complaint. A pre-trial conference was held on January 26, 2009. Plaintiffs filed their Motion in Limine to Admit Photos and Videos into Evidence on May 13, 2009. Fiore filed his Opposition on May 19, 2009, and at a hearing on May 20, 2009, this court allowed Plaintiffs’ Motion in Limine. A site view and the first day of trial at the Land Court in Boston was held on June 2, 2009, and the second day of trial was held at the Land Court on June 3, 2009. At the end of Plaintiffs’ presentation of evidence, Fiore filed a Motion for Directed Verdict, which was denied. Fiore filed his Proposed Judgment on August 17, 2009. Plaintiffs filed their Trial Brief on August 28, 2009, at which time the matter was taken under advisement. A decision of today’s date has been issued.

In accordance with that decision it is:

ORDERED and ADJUDGED that J & J Ponies’ supplying ponies for off-site event riding is consistent with G. L. c. 40A, § 3’s (the “Dover Amendment”) exemption of those uses “for the primary purpose of agriculture.”

ORDERED and ADJUDGED that the equestrian uses of Defendant Property by both Hunters Haven and J & J Ponies are protected agricultural uses under the Dover Amendment.

ORDERED and ADJUDGED that Fiore’s proposed home business office use is protected under the Dover Amendment as an incidental use and, thus, no special permit is required. [Note 2]

ORDERED and ADJUDGED that the Easement is to be used only as access to Defendant Property and not for equestrian purposes.

ORDERED and ADJUDGED that the employees, customers, and business invitees of J & J Ponies and Hunters Haven may also use the Easement to access Defendant Property.

ORDERED and ADJUDGED that Fiore has not overburdened the Easement.

By the court. (Sands, J.)


[Note 1] In 1998, Fiore established Hunters Haven (“Hunters Haven”), a stable and a riding academy and training facility, on Defendant Property. Fiore also owns a separate business entity doing business as J & J Ponies (“J & J Ponies”), which provides off-site pony rides. J & J Ponies uses the same ponies that are boarded on Defendant Property for use by Hunters Haven for the riding academy.

[Note 2] As a result of the foregoing, it is irrelevant whether the office use associated with J & J Ponies is a “home occupation,” as such term is defined in the Bylaw. That said, this court disagrees with Plaintiffs’ argument that the entire scope of J & J Ponies’ operations must be considered when issuing a home occupation special permit. Rather, the appropriate review centers on whether the entirety of the proposed home business office may be “carried on wholly within the principal building . . . .” The record demonstrates that Fiore’s proposed use satisfies this condition.