MISC 10-430019

October 24, 2011


Piper, J.


The Town of Belchertown ("Town"), acting by and through its Board of Selectmen and Zoning Enforcement Officer ("Enforcement Officer") filed this action May 20, 2010. The Town appeals pursuant to G. L. c. 40A, § 17, [Note 1] from a decision ("Decision"), dated February 26, 2010 and filed with the Clerk of Belchertown on April 30, 2010, of the Belchertown Zoning Board of Appeals ("ZBA" or "Board"), whose members are defendants. [Note 2] In its Decision, the Board overturned a portion of a Cease and Desist Order ("Order") issued by the Enforcement Officer to defendants Sarmento J. Paixao, Jr. and Paixao Properties, Inc. (collectively "Paixao"). The Order, dated January 20, 2010, required Paixao to cease and to desist from use of property ""Property") located at 30 Ware Road in Belchertown, because the Enforcement Officer determined that the Property was nonconforming with respect to size and was not subject to grandfathering protection under G. L. c. 40 A, § 6, or the Town"s Zoning Bylaw ("Bylaw" or "Zoning Bylaw.") The Order therefore required Paixao to remove an office trailer from the Property. Paixao appealed to the ZBA the portion of the Order requiring removal of the trailer; he did not appeal the determination that the lot is undersized. After a public hearing, the ZBA overturned the appealed portion of the Order, and determined that Paixao could keep the trailer on the Property, under the condition that Paixao disconnect from the trailer electricity and a propane tank.

The Town filed the current appeal, claiming the ZBA in its Decision had committed an error of law in overturning, in part, the Enforcement Officer's Order. The Town requests this court to overturn the ZBA decision and rule, as a matter of law, that Paixao's use of the Property and his maintenance on it of the disputed trailer, is in violation of the Zoning Bylaw. The Town argues that the ZBA incorrectly based its decision upon a provision in the Belchertown General Bylaws ("General Bylaws") relating to registered vehicles, and by doing so ignored and rendered unenforcible relevant provisions of the Zoning Bylaws which, in the view of the Town, prohibit use of this undersized lot, including as the locus of the disputed trailer.

In addition to appealing the ZBA's decision with respect to the trailer, the Town requests, by way of enforcement of the Bylaw, that this court enter a permanent injunction ordering Paixao, and all others in active concert with them to: cease immediately use of the Property; remove the trailer and all other registered and unregistered vehicles and equipment from the Property; and allow the Enforcement Officer and his authorized agents to enter the Property to inspect it for compliance with this court"s order and the Bylaw.

On May 17, 2011 the Town filed a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c). I held a hearing on the Town"s motion on June 22, 2011. I directed counsel to supplement the filings with an agreed-upon, complete copy of the Zoning Bylaw. Based on the arguments I heard, I also invited counsel to submit further memoranda on whether uses not expressly permitted or prohibited by the Bylaw are allowed on undersized lots in the B-2 District. Plaintiff has filed a supplemental memorandum and certified copy of the Zoning Bylaw; Defendant Paixao has submitted a supplemental memorandum.

After taking the pleadings, moving and opposing papers, briefs, and undisputed facts from the pleadings into consideration, I decide that the Plaintiff"s motion for judgment on the pleadings is to be allowed.


The following facts are supported by the pleadings and appear to be uncontested:

1. The Defendant, Paixao Properties, Inc., is a corporation with an address of the 112 River Road, Ware, Massachusetts and is owner of the Property located at 30 Ware Road, Belchertown, Massachusetts, shown on the Town's Assessor's Map 237 as Lot 86.

2. The Property at 30 Ware Road is located in the B-2, General Business District of Belchertown.

3. Article V, §145-16 of the Zoning Bylaw, adopted in 1992, requires 60,000 square feet of area for land in the B-2 zoning district not serviced by public sewer. The Property at 30 Ware Road is not serviced by a public sewer and has an approximate area of 42,558 square feet.

4. The Property pre-dates the 1992 Zoning Bylaw, however no use was made of the Property until approximately 1997 when the Property was used for approximately one year as a satellite lot for a motor vehicle dealership. The Property was not used again until approximately late 2002 or early 2003, when Paixao began using the Property for a used automobile sales operation.

5. Paixao took title to the Property on October 1, 2002, in a deed recorded in the Hampshire County Registry of Deeds at Book 6817, Page 0049.

6. On July 26, 2005, Paixao obtained site plan approval from the Planning Board to use the Property for a "used car lot." The site plan approval was recorded on October 17, 2005.

7. The Belchertown Building Inspector issued building permit #13659 for a mobile office trailer on the Property on October 17, 2005.

8. On December 21, 2009, the Belchertown Board of Selectmen voted not to renew the Class II Used Car Dealer's License previously issued to Trio"s Auto Sales, Inc., which had operated a used car lot on the Property.

9. The Enforcement Officer issued a Cease and Desist Order to Paixao on January 20, 2010, stating that the Property was not compliant with § 145-16 of the Bylaw, requiring a minimum of 60,000 square feet of area, and ordering him "to immediately cease and desist use of the property for any purpose, including the use for sale of used automobiles." The Enforcement Officer also notified Paixao that the building permit for the trailer (#13569) was no longer valid and he required the trailer to be removed from the Property within seven days. 10. The Cease and Desist Order also stated that "[a]t the time of the [site plan] approval the lot was thought to be grandfathered. A review of MGL 40A section 6 single lot exemption, shows that the grandfathered protection for an increase in lot area only applies to lots for single or two-family residential use."

11. On February 3, 2010, Paixao filed with the ZBA an appeal of the Order as to only "so much of the order of the Zoning Enforcement Officer dated 1/20/10 . . . that required Sam Paixao and Paixao Properties, Inc. to remove Trailer 13659 from the Property," claiming that under § 133-1 of the General Bylaw the trailer is a "registered vehicle" and that there is no prohibition of registered motor vehicles being on the Property.

12. Section 133-1 of Belchertown's General Bylaw provides: "[t]he keeping of more than one unregistered automobile or truck, assembled or disassembled, except by a person licensed under MGL c. 140, § 59, on any premises shall not be permitted, unless the said automobiles or trucks are stored within an enclosed building."

13. After the appeal to the ZBA was filed, but before the ZBA hearing, Paixao registered the trailer with the Registry of Motor Vehicles.

14. Paixao did not appeal to the ZBA the Enforcement Officer's determinations that the Property is undersized and that it is not subject to grandfather protection.

15. The ZBA held a public hearing on February 26, 2010, and voted to grant Paixao's appeal of the Enforcement Officer's Order to remove the trailer, on the condition that Paixao "disconnect[] the electricity and the propane tank from the trailer." The ZBA"s decision was filed with the Town Clerk on April 30, 2010.

Standard of Review for Motion for Judgment on the Pleadings

A plaintiff may move for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c) where the defendants' answer fails to controvert any material issue in the complaint and none of the defendants' declarative allegations states a legally sufficient affirmative defense. [Note 3] See Mass. R. Civ. P. 12(c). Ghilani v. Hanna, Massachusetts Land Court, No. 08-MISC-321262 (June 30, 2008), aff'd., Ghilani v. Board of Appeals of Ashland, 74 Mass. App. Ct. 1114 (2009). A motion pursuant to Rule 12(c) is appropriate where the answer admits all the material allegations of the complaint so that no material issue of fact remains for adjudication and the court may limit its consideration to the pleadings and any facts taken on judicial notice. If the court considers matters outside the pleadings, the motion must be treated as one for summary judgment under Mass. R. Civ. P. 56. Mass. R. Civ. P. 12(c). Upon reviewing a motion for judgment on the pleadings, the court must accept as true all of the allegations of the complaint and all reasonable inferences which may be drawn from the complaint and which are favorable to the non-moving party. Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387 , 388 (1975). The court should not grant a motion to dismiss a complaint under Rule 12(c) unless it appears certain that the non-moving party is not entitled to relief under any state of facts which could be proved in support of the claim. Romano v. Sacknoff, 4 Mass. App. Ct. 862 (1976). Here, all parties agree on the relevant facts and events; they dispute only the legal sufficiency of the ZBA's reading and application of the Town's General and Zoning Bylaws concerning Paixao's property. The matter thus is one proper for resolution on a motion for judgment on the pleadings.


It is undisputed that the Property does not comply with the lot area requirements of the Belchertown Zoning Bylaws; § 145-16 (Table of Dimensional Regulations) of the Zoning Bylaw requires 60,000 square feet of area for any lot in the B-2 zoning district not serviced by public sewer. The Property at 30 Ware Road is located in the B-2 district, does not have public sewer service, and is only 42,558 square feet in area. The Property thus, without dispute, fails to meet the governing 60,000 square feet minimum requirement. Because Paixao did not appeal the Enforcement Officer's determination that the Property is undersized or that it is not subject to grandfathering protection, I am not asked to and not able to adjudicate those issues, and accept those determinations as settled. See Quincy v. Planning Bd. Of Tewksbury, 39 Mass. App. Ct. 17 , 20 (1995) ("The statutorily required submission of zoning disputes to local authority is so central to the architecture of G. L. c. 40A that we have required the exhaustion of administrative remedies as a prerequisite to judicial review.") Therefore, the sole issue before me is whether, as matter of law, the Property may be used for storage of a trailer under the General and Zoning Bylaws, despite the fact that the Property does not meet the dimensional requirements outlined by the Zoning Bylaw.

Article III, § 145-10A of the Zoning Bylaw provides, "No land in any district shall hereafter be used or occupied, and no building or structure shall hereafter be occupied, used, or erected or the use of buildings or land altered, except as set forth in the following Schedule of Use Regulations or as specifically regulated or provided otherwise under other sections hereof, provided that accessory uses and buildings not enumerated in the schedule but necessarily or customarily incidental to a principal use, including the signs otherwise allowed, shall be deemed to fall into the same category as such principal use." The Town argues that the Zoning Bylaw expressly precludes all uses and occupancy of land not specifically enumerated in the Schedule of Use Regulations, and that because the parking of registered trailers is not specifically enumerated in the Bylaw, that use is prohibited by the only fair reading of the relevant provisions of the Bylaw. The Town further asserts that the ZBA incorrectly applied the General Bylaw, finding that it allowed for parking of a registered vehicle on the Property. The Town says that, because § 133-1 of the General Bylaw is irrelevant to the issue of parking trailers, the General Bylaw cannot be read to authorize uses prohibited by Zoning Bylaws or circumvent requirements of zoning, and that, in any event, the ZBA does not have authority to apply provisions of the General Bylaws, certainly not in a way which would approve a use prohibited under the Zoning Bylaw.

In opposition to the Town's motion Paixao argues that Belchertown does not have either a General or Zoning Bylaw which expressly prohibits the parking of registered vehicles on any lot. Paixao thus says that the ZBA's decision allowing Paixao to keep the trailer on the Property was correct. Paixao interprets § 133-1 of the General Bylaw stating, "[t]he keeping of more than one unregistered automobile or truck, assembled or disassembled, except by a person licensed under MGL c. 120, §59, on any premises shall not be permitted, unless the said automobiles or trucks are stored within an enclosed building," as allowing for the keeping of registered automobiles on the Property. Paixao further asserts that the Schedule of Use Regulations of the Zoning Bylaw expressly permits the parking of commercial motor vehicles on property in the Limited Business (B-1) and General Business (B-2) zones. He bases this argument on his reading of note 15 of the Schedule of Use Regulations relating to "commercial transportation," which reads, "[o]ne vehicle may be kept on an individual lot in the Lakes and Village Residential Districts, and two vehicles, as defined in S.1.1., may be kept in the Agricultural-A and-B Districts on an individual lot; more than these allotments shall be deemed to be a fleet of commercial transportation vehicles and must be kept in Limited or General Business Districts . . . ." Paixao also claims that § 145-23(C) of the Zoning Bylaw permits the parking of vehicles, as it provides in part, "[f]or cases not specifically enumerated herein, adequate parking areas shall be provided off the traveled way." Finally, Paixao asserts that the Town"s argument is not "logical" because stating that the Property cannot be used for "any purpose" would allow the Town to regulate and proscribe uses and activities of a minor nature, which lie beyond the reach of zoning. According to Paixao, the parking of a trailer is a de minimis use of land, and cannot be regulated by zoning because precluding the use would constitute an improper taking of the property.

"It is a 'familiar principle of interpretation that express mention of one matter excludes by implication other similar matters not mentioned.'" Building Inspector of Chelmsford v. Belleville, 342 Mass. 216 , 218 (1961) (quoting Foster v. Mayor of Beverly, 315 Mass. 567 , 569 (1944)). The court in Belleville held that a zoning bylaw which expressly permitted certain uses, but was silent on the garaging and storing of heavy equipment, should be read as prohibiting such uses. 342 Mass. at 217-18. The court there went on to hold, "the fact that the uses permitted are enumerated without a statement that all other uses are prohibited does not invalidate the zoning by-law." Id. at 217. Here, the Zoning Bylaw not only expressly enumerates permitted uses of land, but goes even further to specify in §145-10A that it is a "permissive" zoning law, ie., a law which enumerates particular uses allowed in given districts, and which prohibits uses not expressly mentioned. [Note 4] See Harvard v. Maxant, 360 Mass. 432 , 436 (1971), describing the taxonomy of local zoning laws, differentiating among those which "may take the form of prescribing uses permitted or prescribing uses prohibited, or a combination of the two." So, for Paixao to defeat the Plaintiff"s current motion, Paixao must identify a provision of the Bylaw which expressly permits storage of a registered trailer on the Property. Paixao, however, has failed to cite a provision of the Bylaw that permits or even pertains to such a use of property within the Town.

The two provisions of the Zoning Bylaw cited by Paixao-- note 15 of the Schedule of Use Regulations and 145-23(C)-- do not expressly permit the parking of registered trailers; these sections cannot be used in support of the ZBA's decision. Note 15 of the Schedule of Use Regulations serves to clarify the enumerated term "commercial transportation" and the associated, permitted uses. Paixao's storage of a trailer, previously used as office space, does not fall under any reasonable interpretation of the term "commercial transportation," which refers to the use of vehicles to transport people or things. This use embraces activities such as provided by or in connection with a business using vehicles such as limousines or moving trucks. It is undisputed that the trailer in question has been stationary for approximately five years and was never used by Paixao for transportation. It is a trailer which serves for occupancy or shelter, and not as a vehicle, certainly not one as part of a "commercial transportation" use.

Section 145-23(C) of the Zoning Bylaw provides no justification for the Board and Paxao's position that that provision authorizes the presence of the trailer as a lawful zoning use of the Property. The section does not authorize a separate use of the land. The section is not applicable to the parking of trailers as a permitted use; the provision pertains to the number of parking spaces that residential units, government services, and businesses must provide, as an accessory use of property, to ensure adequate off-street parking. The section does not relate to the parking of trailers or other registered automobiles as a principal use of property, as Paixao claims. Because it is undisputed that Paixao's storage of the trailer on the Property is the principal (indeed the only) use of the land, not accessory to any other use, and certainly not existing to satisfy the parking minima of the Bylaw based on some other use, § 145-23(C) does not permit keeping the trailer as a stand-alone use of the Property. [Note 5] Because neither note 15, nor § 145-23(C) of the Zoning Bylaw expressly permit the storage of a registered trailer, the provisions do not support the ZBA's decision; under the permissive nature of the Bylaw, Paixao may only occupy or make use of the Property in manners expressly set forth in the text. [Note 6]

The ZBA relied upon §133-1 of the General Bylaws for its decision to allow Paixao to maintain and store the trailer on the Property. The General Bylaws, however, cannot support the ZBA's decision, both because the General Bylaws must not, when possible, be read as conflicting with the Zoning Bylaw, and because, even if the General and Zoning Bylaws were conflicting, § 133-1 does not authorize the storage of trailers on undersized lots.

The court in McIntyre v. Board of Selectmen of Ashby held that when an earth-removal bylaw and a zoning bylaw regulated the same issue, they should not be read as mutually exclusive as long as there was no legislative intent to preclude the application of one of the bylaws. 31 Mass. App. Ct. 735 , 739-740 (1990). Here §133-1 of the General Bylaws and the Zoning Bylaw are not mutually exclusive, but rather should be interpreted as supplemental bylaws which complement each other. See McIntyre, 31 Mass. App. Ct. at 740. The two Bylaws may be read together, to yield the rule that if and when parking of automobiles is expressly permitted by the Zoning Bylaw, only one unregistered automobile is permitted unless stored in an enclosed building. Rather than authorizing uses prohibited by the Zoning Bylaw, or overriding or circumventing zoning requirements, § 133-1 of the General Bylaws adds restrictions to the parking of vehicles, above and beyond those outlined in the Zoning Bylaw. Finally, even when read alone, § 133-1 does not authorize any use of an undersized lot; § 133-1 when reasonably interpreted, simply serves to limit the number of unregistered automobiles on an open lot. The dimensional minima of the Zoning Bylaw certainly continue to apply regardless of what the General Bylaws might cover within their proper sphere of regulation.

Without doubt there are certain activities on, and uses of, property which are so trivial, so de minimis, that they cannot be prohibited or regulated by zoning laws. Paixao strives to position the presence of the trailer on the Property into this minor category of uses which local zoning laws typically do not treat or control. Paixao argues that the trailer use is akin to picnicking, sunbathing, sitting for a time in a lawn chair to read, or other similar low-impact uses which, though not authorized specifically under the Zoning Bylaw, nevertheless may take place lawfully on land in Belchertown.

But this argument is unpersuasive. Paixao's storage of an office trailer does not fall into the category of de minimis uses indubitably allowed even though not called out as proper by the zoning law's text. It is uncontested that storage of the trailer now is the principal (in fact, only) use of the Property, and that the trailer has been parked in a fixed location since 2005. The trailer first came to the Property pursuant to a building permit, and thus was considered by the landowner and the municipality as a structure properly subject to building permit requirements. The trailer is large, having served successfully as a business office from which was conducted the operations of the automobile dealership previously active on the Property. Although Paixao since has removed the propane tank and electricity from the trailer, those changes do not significantly lessen the size, steady presence, and overall impact of the trailer on the Property, certainly not to the degree rendering the continued maintenance of the trailer of the Property a de minimis use with which zoning law ought not to be concerned.

The Town's motion for judgment on the pleadings is ALLOWED. I am forced to conclude that the Decision of the Board appealed from in this case, however well-intentioned, nevertheless proceeded on a legally-untenable ground, and so was in excess of the authority of the Board under the law the court is obliged to apply.

I will direct entry of a judgment in this case annulling the Decision, and directing the Board to issue instead a decision which upholds the Order of the Enforcement Officer. I am confident that the Board will carry out the court's judgment as instructed, and that once the Enforcement Officer's Order again is in force, Paixao will follow that Order. Based on this confidence, I decline to require that any injunctive order issue.

Judgment accordingly.

Gordon H. Piper


Dated: October 24, 2011


[Note 1] G. L. 40A, § 17 provides in part, "Any person aggrieved by a decision of the board of appeals or any special permit granting authority . . . may appeal to the land court department . . . by bringing an action within twenty days after the decision has been filed in the office of the ... town clerk."

[Note 2] The members of the Board have not presented any defense of this action. Under G.L. c. 40A, §17, no answer is required, and none has been filed on the Board's behalf. Individual members of the Board have attended at least some of the conferences and hearings held in this case. But the Board cannot appear other than by duly appointed counsel, and any defense interposed by individual members cannot be entertained. The Town, through the Selectmen, has engaged counsel to bring this action and to challenge the Decision of the Board, and that determination, made by the body charged with it, the Selectmen, must be respected by the court, even though the result is that the Board's position does not receive formal advocacy from the defendant Board members in this action. The private defendants, however, have mounted a defense and have participated fully, urging support of the challenged aspects of the Board's Decision.

[Note 3] Mass. R. Civ. P. 12(c). "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."

[Note 4] Belchertown Zoning Bylaw §145-10A at 145:15 states in part, "[n]o land in any district shall hereafter be used or occupied . . . except as set forth in the following Schedule or Use Regulations or as specifically regulated or provided otherwise . . . ."

[Note 5] It is for this reason that Marblehead v. Gilbert, 334 Mass. 602 (1956) and similar cases relied upon by Paixao are inapposite. These decisions address instances where a trailer occupies a lot also improved with a dwelling house, and conclude that in those circumstances--materially different than in the case at bar--under particular facts such a trailer may qualify as a use properly accessory to the primary residential one.

[Note 6] The decision of the Supreme Court of Rhode Island in Warwick v. Campbell, 82 R.I. 300 (1954) is instructive, and supports the conclusion I reach--that the storage or parking of commercial vehicles on the Property is prohibited by the Zoning Bylaw. In Campbell, the court dealt with a local zoning law, which, like the one in Belchertown, was "permissive," meaning that it permitted "specified uses and buildings and prohibit[ed] all others within a district...." Id., at 305. The court determined that the challenged use, storing or parking of certain commercial vehicles on lot 47, an otherwise unused parcel, was not authorized by the permissive-format local zoning law, and that no other lawful principal use of the lot was being maintained there. The court also rejected the landowner's attempt to characterize the vehicle storage as permitted under a theory of accessory use, saying: "In the present case it is not shown that there is any principal building on or valid use of lot 47 to which an accessory use could be attached." Id. The court explained that the " only reason [the landowner] bought the lot was to park trucks thereon. In other words, that was intended to be the primary use of the lot and not merely a use accessory to a recognized, permitted use." 82 R.I. at 306. "In the circumstances, therefore, we are of the opinion that the storage and parking of commercial vehicles on lot 47 was neither a valid permissive primary use nor a valid accessory use...." Id. The Campbell court concluded that "it was error for the trial justice to permit the respondents to store or park any commercial vehicles on lot 47...." Id., at 307.