MISC 88494

April 28, 1978

Plymouth, ss.

Randall, J.


This matter comes before the Court on plaintiff's complaint under G. L. c. 40A, §17 to set aside the decision of the defendant Zoning Board of Appeals of the Town of Scituate dated December 20, 1977 granting the defendant Owen W. Fryling a special permit to construct a garage for housing two commercial vehicles.

A hearing was held on March 15, 1978. Two witnesses testified and 7 exhibits, incorporated herein for the purpose of any appeal, were introduced. The parties entered into an agreed statement of facts, Exhibit No. 4, which the Court incorporates into its findings of fact.

A preliminary question concerns the jurisdiction of this Court to hear this case. After trial had been completed, Defendant Board of Appeals moved to dismiss under Mass. R. Civ. P. 12(b) (1). This motion was heard on April 12, 1978.

Chapter 40A, §17 as inserted by St. 1975, c. 808 provides in pertinent part as follows:

"Any person aggrieved by a decision of the board of appeals or any special permit granting authority whether or not previously a party to the proceeding, or any municipal officer or board may appeal to the superior court or to the land court under section fourteen A of chapter two hundred and forty (emphasis added) for the county in which the land concerned is situated or if the land is situated in Hampden county either to the superior court or to the housing court of the county of Hampden, by bringing an action within twenty days after the decision has been filed in the office of the city or town clerk."

Thus it would appear c. 40A, §17 grants the Land Court jurisdiction over this appeal though the reference to c. 240, §14A is confusing as it provides for petitions by an owner of a freehold estate in possession to determine the validity of a municipal ordinance, by-law or regulation.

Formerly, appeals from decisions of zoning boards of appeal could be brought in the District Court or the Superior Court. G. L. c. 40A, §21. Under new c. 40A, §17 district courts no longer have jurisdiction of these matters. The Court concludes the intent of the legislature in enacting c. 40A, §17 was to remove the jurisdiction of the district courts and to substitute therefor the Land Court (or, in appropriate cases, the housing court of the county of Hampden). Hence, the Court concludes it has jurisdiction of this case and denies defendant's motion to dismiss.

The plaintiff and defendant Owen Fryling are abutters, the plaintiff's property being located to the rear of the defendant's. Defendant's property is zoned for residential use. (Agreed Statement of Facts, 3). A garage for the housing of not more than two commercial vehicles is permitted in a residence district by special permit. (Exhibit No. 3, §IV, B, 2n). By decision dated December 20, 1977 the Zoning Board of Appeals granted defendant Owen Fryling a special permit to construct a garage. The plaintiff argues the Board exceeded its authority in granting the special permit in that the requirements set forth in section IV, B, 2n of the Scituate Zoning By-Law (Exhibit No. 3) have not been satisfied.

In accordance with the relevant standard of review, the Court determines the facts for itself. G. L. c. 40A, §17; Lawrence v. Board of Appeals, 336 Mass. 87 (1957).

Section IV, B, 2n of the Scituate Zoning By-Law provides as follows:

2. Uses Permissible by Special Permit

n. A private fully enclosed one story garage for housing not more than two commercial vehicles in conjunction with the principal occupation of the occupant of the residence, provided that:

1. The residence and the garage shall be on one parcel of land or contiguous parcels held by the same owner, and that the common ownership shall be a continuing requirement, and in the event that said ownership conditions cease, the permitted use shall terminate forthwith.

2. The architecture of the building shall be compatible in appearance with dwellings in the vicinity.

3. A plan, with architectural elevations of the building and its location on the lot, shall be submitted to the Board of Appeals.

4. The garage shall be suitably screened from view of the abutters and/or the public. Screening shall be by natural vegetation, landscaping, or other mean approved by the Board of Appeals.

5. The building shall not exceed 1,000 square feet in floor area.

6. The building shall not exceed eighteen (18) feet in height.

7. The height of the doors of said garage shall not exceed eleven (11) feet.

8. Said garage shall not be less than forty (40) feet from side and rear lot lines and sixty (60) feet from any street line.

9. There shall be no exterior signs, except as otherwise permitted herein.

10. No stock in trade shall be regularly maintained on the premises.

11. That there is no outside storage of material or equipment.

12. That the hours of normal operation, except for school buses and emergency vehicles shall not commence before 6:00 a.m. and shall cease by 7:00 p.m. No Sunday or holiday operation permitted.

13. No offensive noise, dust, smoke, odor, glare, or heat is produced.

The parties have agreed that requirements 1, 3, 5, 6, 7, 8, 9, 11, 12 have been satisfied and the Court so concludes. Exhibit No. 4. As to the disputed reqUirements, numbers 2n, 2, 4, 10, 13, the Court finds as follows:

1. architectural compatibility - 2n-2.

The proposed garage, the specifications of which are set forth in Exhibit No. 6, will have an asphalt shingled, pitched roof, a wooden frame construction and stained wooden sides. Other buildings in the neighborhood are basically cape style homes with wood shingled roofs and sides. One building in the area has an asphalt shingled roof and painted clapboards on the sides. (Tr. 14-16). The Court finds the architecture of the garage will be compatible in appearance with dwellings in the vicinity.

2. screening - 2n-4

The ten and one-half acre parcel upon which the garage is to be located is basically wooded except for a cart path, one or two houses, barn and chicken coop. There are trees in front of, beside, and behind the site of the garage. One standing at the proposed site and looking in the direction of any of the abutters or route 3A finds the view obstructed by trees. (Tr. 16-19; exhibits 1, 6). The Court finds the garage will be suitably screened from view of the abutters and/or the public by natural vegetation.

3. stock in trade - 2n-10

The proposed garage is to house two three-quarter ton panel trucks used in the conduct of a cleaning business. At any one time approximately 10 gallons of cleaning solvents will be stored in a truck. (Tr. 24-25). Also kept in a van are three step ladders, one vacuum cleaner, a floor machine, brushes, brooms, mops, buckets, sponges, towels. (Tr 25) The cleaning chemicals and equipment will remain in the vans overnight. These chemicals are used solely by the employees in the conduct of the cleaning business; they are not sold to customers. The Court concludes the materials stored in the trucks constitute equipment or tools of the trade and not stock in trade. Cf., City of Boston v. MacGray Company, Inc. 371 Mass. 825 , 77 Mass. Adv. Sh. 206 (1977). Consequently, the Court finds that no stock in trade will be regularly maintained on the premises.

4. noise, dust, etc. - 2n-13

Ninety-nine percent of the cleaning solvents used in the cleaning business are biogradable and water based. The remainder are petroleum or alcohol based. (Tr.19-20). The later are bought and stored in one gallon cans. There is no odor detectable outside the truck from any of the cleaning materials. (Tr. 21) Some of the cleaning solvents are combustible if heated to a sufficient temperature. However, they are used safely in conjunction with vacuum cleaners where the temperature of the cleaner gets quite high. (Tr. 22). The Court concludes no offensive noise, dust, smoke, odor, glare or heat will be produced from the garage or its proposed use.

The last consideration to be addressed is that contained in paragraph 2n itself:

Paragraph 2n allows the construction of a "private, fully enclosed one story garage for housing not more than two commercial vehicles in conjunction with the principal occupation of the occupant of the residence, provided ..." It seems to the Court that what is contemplated by these words is a private garage for use by the occupant of the residence as his principal business. It contemplates the storing of the occupant's commercial vehicles, not somebody elses. It is a by-law to enable the occupant of a residence to use his residence in a very limited way, after obtaining a special permit, for his own commercial venture. It contemplates a commercial venture of small size and of a personal nature.

The occupant of the residence at 64 Booth Hill Road, North Scituate, the proposed site of the garage, is defendant Owen Fryling. He is seventy years old and has been retired since January 1, 1970. His son, Peter Fryling, is in the cleaning business and has a franchise with Service Master Industries. He has been in the business for approximately six and one-half years, and currently operates the business out of his (Peter's) home at 38 Thomas Avenue, Scituate. The business is the son's and the vans to be stored on the property belong to the son, Peter who has no interest in his father's (Owen's) property at 64 Booth Hill Road.

There is a question whether the cleaning business is the principal occupation of Owen Fryling within the meaning of the zoning by-law. Owen Fryling's connection with his son's cleaning business is as follows. He has a financial interest therein; he has reorganized the inside of his son's van, building shelves to accommodate the cleaning equipment stored therein; and he occasionally runs errands for the business. Other than looking after some property he owns, Owen Fryling performs no other remunerative work.

The word "occupation," since it is undefined in the by-law, must be given its usual and accepted meaning which meaning is to be derived from sources presumably known to the enactors of the by-law such as dictionary definitions. Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 77 Mass. Adv. Sh. 743, 746 (1977). Webster's Seventh New Collegiate Dictionary defines occupation as "an activity in which one engages." The Court is unable to conclude on the evidence presented that the principal activity in which Owen Frying engages is his son's cleaning business.

Moreover, the court believes that it was never the intention of the framers of this by-law to extend commercial privileges to any but the occupant of the residence itself. The principal operator of this business is not the occupant of the residence.

Therefore, the Court concludes that the Board of Appeals exceeded its authority in granting the special permit.

Plaintiff's requests for findings of fact 1, 2, 3, 4, 6, 7, 8, and 11 are allowed; numbers 5, 9 and 10 are denied. Plaintiff's requests for rulings of law 1, 2, 4, 5 and 8 are granted; numbers 3, 6 and 7 are denied.

Judgment accordingly.