JOHN A. BOMBARA, MICHAEL I. ZWICKER, and LORI A. ZWICKER vs. DANIEL HENEY, PAMELA HOLMES, and MICHAEL NELSON, as they are members of the ZONING BOARD OF APPEALS of the Town of Douglas

Plaintiffs John A. Bombara, Michael I. Zwicker and Lori A. Zwicker (together, “Plaintiffs”) filed their unverified complaint on April 6, 2010, appealing, pursuant to G.L.c 40A § 17, the March 16, 2011 decisions of the Zoning Board of Appeals of the Town of Douglas (the “ZBA”) which upheld notice of the Douglas Building Commissioner (the “Building Commissioner”) that Plaintiffs had violated the Town of Douglas Zoning Bylaw (the “Bylaw”) Section 3.2.2.1. A case management conference was held on May 27, 2010. The ZBA filed its Motion for Summary Judgment, together with supporting memorandum, Statement of Undisputed Material Facts, Affidavit of Adelle Reynolds (Town of Douglas Building Commissioner), and Appendix on November 30, 2010. On March 18, 2011, Plaintiffs filed their Memorandum in Opposition to Defendants’ Motion for Summary Judgment. [Note 1] A Summary Judgment hearing was held on March 21, 2011, at which time, at this court’s request, the parties agreed to attempt to settle the case. On April 27, 2011, the parties informed this court that a settlement could not be reached, and at that time the matter was taken under advisement.

On appeal of a zoning board of appeals decision, “the matter is heard de novo and the judge makes his own findings of fact, and determines the legal validity of the decision of the board upon the facts found by the court … .” Bicknell Realty Co. v. Board of Appeal, 330 Mass. 676 , 679 (1953). “A decision of a zoning board of appeals ‘cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.’” Wells v. Zoning Bd. of Appeals, 68 Mass. App. Ct. 726 , 731 (2007), quoting MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). The court determines whether the decision of the zoning board of appeals was “based on a … standard, criterion, or consideration not permitted by the applicable statues or by-laws.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003)).

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). I find the following material facts are not in dispute:

1. John A. Bombara (“Bombara”) owns the property located at 37 Gilboa Street in Douglas, Massachusetts.

2. Michael I. Zwicker and Lori A. Zwicker (the “Zwickers”) own the property located at 46 Oak Street in Douglas, Massachusetts.

3. Bombara and the Zwickers have trailers from which some of the wheels have been removed [Note 2] (the “Storage Units”) [Note 3] on their respective properties, which Bombara and the Zwickers use for non-construction storage purposes. [Note 4] Some of the Storage Units sit on cement slabs, some sit on cement blocks or wooden pallets and some sit directly on the ground. The Storage Units have back bumpers, loading ramps, tail lights and reflectors. None of the Storage Units are connected to utilities.

4. On December 16, 2009, the Building Commissioner issued a violation notice to Bombara, stating that a trailer located in the rear yard of the Bombara property was in violation of the Bylaw (Section 3.2.2.1).

5. On December 16, 2009, the Building Commissioner issued a violation notice to the Zwickers, stating that a trailer located on the front yard of the Zwickers’ property was in violation of the Bylaw (Section 3.2.2.1). [Note 5]

6. Section 3.2.2.1 of the Bylaw states: “Use of Trailers for Nonconstruction Storage. In all districts, other than the Industrial Districts, the use of trailers and semi-trailers for nonconstruction storage shall be prohibited.” [Note 6]

7. Section 3.2.3 of the Bylaw states in part: “Accessory Uses in the Industrial District. 1. The use of trailers and semi-trailers as temporary storage facilities shall be permitted for a period not to exceed three months provided that such storage facilities conform to all dimensional regulations established therein for buildings and are screened from public view on any streets.”

8. On January 13, 2010, Bombara and the Zwickers each filed an appeal from the violation notices with the ZBA. The ZBA held a hearing on February 3, 2010. On March 16, 2010 the ZBA issued decisions denying Plaintiffs’ respective appeals, finding the storage facilities on the Bombara and Zwicker properties to be trailers for non-construction storage.

9. On May 26, 2010, and again on October 18, 2010, the Building Commissioner took photographs of the storage facilities on Bombara’s and the Zwickers’ respective properties; those pictures were submitted to this court in the Appendix to the ZBA’s Motion for Summary Judgment. The pictures show that some of the Storage Units’ wheels have been removed, that at least one Storage Unit has wheels, that the Storage Units are not connected to utilities, and that the Storage Units have back bumpers, loading ramps, tail lights and reflectors. The pictures also show that the Storage Units sit on cement slabs, cement blocks, wooden pallets or directly on the ground.

****************************

The single issue involved in this case is whether the Storage Units on Plaintiffs’ properties are “trailers” within the meaning of the Bylaw. Plaintiffs argue that the ZBA incorrectly interpreted the Bylaw and wrongly determined that the Bylaw prohibits the use of the Storage Units on Plaintiffs' properties. Plaintiffs contend that the Storage Units are not trailers and therefore the placement of the Storage Units on Plaintiffs' properties is not prohibited by the Bylaw. Conversely, the ZBA argues that despite the removal of wheels from some of the Storage Units, the Storage Units are indeed trailers, and therefore their placement on Plaintiffs' properties for the purposes of non-construction storage constitutes a violation of the Bylaw.

The Bylaw explicitly prohibits “in all districts, other than the Industrial Districts, the use of trailers and semi-trailers for nonconstruction storage.” The Bylaw does not provide a definition for “trailer”. “In the absence of an express definition, the meaning of a word or phrase used in a local zoning enactment is a question of law, … and is to be determined by the ordinary principles of statutory construction.” Framingham Clinic, Inc. v. Zoning Bd. of Appeals, 382 Mass. 283 , 290 (1981) (citation omitted). When interpreting a statute, the court will “construe [the words of the statute] in accordance with their common usage and ordinary meaning in a manner promoting the object to be accomplished by the statute.” Department of Environmental Quality Engineering v. Hingham, 15 Mass. App. Ct. 409 , 411 (1983). The court “derive[s] 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.” Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 369 (1977).

General definitions do not provide much guidance on whether the Storage Units are trailers. Ballentine's law dictionary defines a trailer as “a vehicle used for transportation of freight on the highway, being towed by a tractor or another powered vehicle...[or a] vehicle having a large and commodious body, which can be towed upon the highway but is usually parked and used as living quarters.” BALLENTINE'S LAW DICTIONARY 1190 (3d ed. 1969). [Note 7] As Plaintiffs point out, the Storage Units no longer have wheels, [Note 8] and therefore are currently incapable of being towed on a highway. However, the Storage Units were designed to be partnered with a truck, and could still serve such a purpose if the wheels were re-attached. Additionally, the Storage Units still retain all of the remaining features of a “vehicle to be used for transportation of freight,” such as back bumpers, loading ramps, tail lights and reflectors. These definitions, then, do not decisively indicate whether the Storage Units should be considered trailers under the Bylaw.

Case law is somewhat ambiguous on the topic. Certain appellate cases indicate that when a trailer's mobility is removed, it does not cease to be a trailer. In Manchester v. Phillips, 343 Mass. 591 (1962), the court found that the defendant's home was a trailer for the purposes of the town's zoning bylaws, [Note 9] even though the defendant had removed the trailer's wheels, placed the trailer on a concrete slab, connected the trailer to water and sewer lines and purchased loam for a lawn as well as materials for a veranda around the trailer. The court in Manchester stated:

In ordinary parlance the unit shown in the exhibits will be spoken of as a trailer or a mobile home, even if ... its wheels have been taken away, and even if it has been affixed to the land. It looks like a trailer, has the qualities of a trailer superstructure, and has been built as a trailer.

Manchester, 343 Mass. at 596. Similarly, Brewster v. Sherman, 343 Mass. 598 (1962) involved a trailer that was affixed to a concrete foundation, with electric and water connections as well as an access road, which the court determined to be a trailer. [Note 10] Manchester and Brewster clearly show that a unit's status as a trailer is not dependent solely on the unit's mobility.

Plaintiffs rely on a trial court opinion, Ragonese v. Manzi, in which the court found that trailers located behind a business were buildings for zoning purposes, to undermine this conclusion. [Note 11] As a trial decision, Ragonese is of less weight than Manchester and Brewster. Additionally, the present case is factually distinct from Ragonese in that Plaintiffs' Storage Units do not have any utility hookups, an important factor in the Ragonese decision. This factual discrepancy, combined with the statements of Manchester and Brewster that a trailer remains a trailer even when stripped of its mobility, leave this court doubtful as to whether Plaintiffs converted the Storage Units from trailers into buildings when Plaintiffs removed some of the Storage Units' wheels.

While case law and objective definitions do not clearly determine whether trailers without wheels should be classified as trailers, the intent of the drafters of the Bylaw appears clear. “Specific provisions of a zoning enactment are to be read in the context of the law as a whole.” Framingham Clinic, 382 Mass. at 290. As such, since there is no definition of trailer in the Bylaw, it is useful to look at other portions of the Bylaw in an attempt to discern the motivation of the adoption of the Bylaw provision relating to trailers. The Bylaw explicitly conditions the temporary placement of trailers in industrial districts [Note 12] on the trailers “conform[ing] to all dimensional regulations established therein for buildings and [being] screened from public view on any streets.” (emphasis added). This leads to the inference that the Town of Douglas is regulating the use of trailers in part for visual appearance reasons. Since the only alteration Plaintiffs made to the Storage Units was to remove their wheels, the Storage Units still very much look like trailers. If being judged by visual appearance, then, the Storage Units would be considered trailers.

Additionally, the fact that the ZBA deemed the Storage Units to be trailers indicates that the Bylaw's drafters intended to prohibit the use of facilities like the Storage Units when they prohibited “trailers” in residential areas. The ZBA's determination is an important consideration because “a zoning board of appeals is entitled to 'all rational presumptions in favor of its interpretation of its own by-law, [provided] there [is] a rational relation between its decision and the purpose of the regulation it is charged with enforcing.’” Building Commissioner of Franklin v. Dispatch Communications of New England, Inc., 48 Mass. App. Ct. 709 , 713 (2000), quoting Farfard v. Conservation Comm. of Reading, 41 Mass. App. Ct. 565 , 572 (1996). Since, as the ZBA contends, it appears that the Town of Douglas enacted the Bylaw in part for the purposes of aesthetic regulation, [Note 13] the ZBA’s conclusion that Plaintiffs' Storage Units were trailers was rational because the Storage Units possess the vast majority of the visual characteristics of trailers.

Given the general consensus under appellate case law regarding the classification of trailers without wheels such as the Storage Units, the apparent desire of the Town of Douglas to minimize the use of trailers within Douglas for aesthetic purposes, and the favorable presumption for the ZBA's decision, it appears that the Bylaw was intended to prohibit the use of all facilities that have the distinct appearance of trailers for non-construction storage purposes. Reading the Bylaw in this way, it appears clear that the Storage Units are in fact trailers for zoning purposes in the Town of Douglas. Accordingly, I find that Plaintiffs are in possession of trailers on Plaintiffs' respective properties for the purpose of non-construction storage, and, as such are in violation of the Bylaw. Therefore, the ZBA’s motion for summary judgment is ALLOWED.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: July 12, 2011