RALPH D. TEDESCHI, ROBERT L. TEDESCHI, DOMINIC R. TEDESCHI, JOSEPH F. FLYNN and CHARLES A. FITZGIBBONS, TRUSTEES vs. TOWN OF FALMOUTH and ROBERT L. JOHNSON, BUILDING COMMISSIONER of the TOWN OF FALMOUTH.

This is a petition (later amended) brought under the provisions of G. L., c. 240, § 14A and c. 185, § 1 (j 1/2) by the owners of a freehold estate in possession of land for a determination of the extent to which Section 3363 of the Zoning By-Law of the Town of Falmouth affects the proposed use of petitioners' land. The Building Commissioner of the town is joined as a respondent.

The petitioners allege that they are the owners of land (the locus) in Falmouth located in a Business 2 District. Pursuant to the town's Zoning By-Laws adopted April, 1979, the permitted business and commercial uses in a Business 2 District include "a) Retail sales not more specifically listed."

The petitioners' lessee, Nickerson Companies, desires to operate a home center at the locus where individuals can purchase products for the repair, maintenance and improvement of the home such as furniture, kitchen cabinets, tools, appliances and lumber.

The petitioners allege that the town's Building Commissioner denied permission for their lessee to sell small quantities of lumber at the locus and, in so doing, erroneously interpreted Section 3363a of the town by-law.

The petitioners ask the court to declare that the retail sale of small quantities of lumber on the property owned by them is a retail sale and a permitted use in a Business 2 Zoning District under Section 3363a of the town by-law.

The respondents answered denying that the sale of lumber in small quantities as part of the operation of a home center would constitute a retail sale and a permitted use under Section 3363a of the town by-law.

Trial was held on May 20, 1980. Thomas J. Butler, Executive Vice President of Nickerson Companies, testified, and 12 exhibits, incorporated herein for the purpose of any appeal, were introduced. The parties submitted a stipulation of agreed facts which the court incorporates into its findings of fact.

The court finds the following facts:

1. The petitioners, Trustees under a Declaration of Trust dated March 26, 1971, recorded in the Barnstable County Registry of Deeds in Book 1505, Page 746, are the owners in fee of the locus which is adjacent to Teaticket Highway in Falmouth (The Falmouth Mall).

2. The locus is located in a Business 2 District as defined in the Falmouth Zoning By-Law. The permitted uses in a B-2 district include "Retail sales not more specifically listed."

3. The zoning by-law, adopted in April 1979 as a complete revision, divides Falmouth into (14) fourteen basic zoning districts ranging from single Residence District "AA" to Light Industrial District "B". The commercial districts include Business Districts "1", "2", and "3" and Light Industrial Districts "A" and "B". While retail businesses are permitted in all commercial districts, "lumber, fuel and feed and ice establishments," and "contractor's yards, plants engaged in the manufacturing of electronic products, parts and services" are permitted in the two industrial districts by special permit only.

4. The petitioners entered into a lease agreement with the Nickerson Lumber Company, doing business as Mid-Cape Center, for a building located in the Falmouth Mall and containing approximately 30,000 square feet.

5. The lessee plans to operate a home center known as the Mid-Cape Home Center in the leased building where individuals can purchase at retail various products for the home and for the repair and renovation of the home.

6. The store will have an extensive merchandise mix and among other things it will carry large and small appliances, indoor and outdoor furniture, carpeting, electrical and plumbing fixtures, finished cabinets and bathroom vanities, tools and lumber.

7. 3,000-4,000 square feet of the building will be used for selling lumber at retail in small quantities for home repair and other purposes.

8. The lumber for sale will include 2 X 4s, 2 X 6s, 2 X 8s, 2 X 3s by 3/4 and 2 X 3s by 1/8. In addition, there will be limited stud-type materials, pine boards in 3, 4 and 5 foot lengths and plywood in 4 X 8 sheets.

9. There will be no lumber stored outside the building and no facilities to cut lumber to specifications.

10. There will be no wholesale sales to contractors at the locus, but telephone orders for large quantities of lumber will be received at the Falmouth store. These orders will be filled from the lessee's other locations and the sales will not be considered sales through the Falmouth store.

11. Projected volume of sales for the first twelve months of the store's operation is one million, nine hundred thousand dollars; 10% of which accounts for projected lumber sales.

12. On August 16, 1979, an agent for the petitioners submitted an application to the Building Department for new construction of two retail stores to be built between the existing Angelo's store and the Falmouth Mall. As a result of this application, a major plan review was done by the town's planning board. Said application did not mention anything about a lumber establishment and was approved by the Building Commissioner on October 26, 1979.

13. In a letter dated February 11, 1980, the petitioners' lessee requested permission of the Building Commissioner to sell lumber in small quantities at retail on the leased premises.

14. Permission was denied by letter dated February 21, 1980. The Building Commissioner responded on February 21, 1980, staing ". . . it is my decision that if any lumber per se is sold on the premises, that act alone would be a violation of the town's zoning by laws." Further, the Commissioner stated that the store's floor plan submitted to his office clearly showed that lumber would be part of the stock and inventory to be sold (or delivered) from the Mid Cape Center building and would constitute a zoning violation.

There is no question that the Mid Cape Home Center is a retail business. The Building Commissioner has agreed that, with the exception of the sale of lumber, the retail sale of all other items for home repair is a permitted use in a Business 2 Zone.

Therefore, the sole issue presented for decision is whether the proposed retail sale of small quantities of lumber at the locus would be in violation of the town by-law.

The Zoning By-Law, read as a whole, indicates the town's intent to restrict intense commercial uses to the light industrial districts. If the level of lumber sales proposed at the locus were more in line with the level of permitted uses restricted to the Light Industrial Districts, the clear intent of the By-Law would prohibit such use in a Business 2 District. However, that is not the case. The undisputed testimony at trial established that 1) there will be no bulk wholesale or retail lumber sales from the locus, 2) there will be no outdoor lumber storage, and 3) there will be no facilities for cutting lumber to size, all of which would characterize the activity at a lumber yard or lumber establishment.

The petitioners contend that the fact that the Mid Cape Home Center plans to sell lumber as one of many retail items does not cause the store to lose its character as a retail business and render it a lumber establishment. The court agrees.

The type of products a store carries does not determine whether or not that store is a retail business. Retail establishments are stores in which goods are displayed on the premises, sold in small quantities, and which the customer generally takes with him. See Town of Foxboro v. Bay State Harness, Mass. App. Ct. (1977). [Note a]

The Mid Cape Home Center carries a wide variety of items for the home, ranging from plumbing supplies to refrigerators. Lumber items occupy approximately 10% of the floor space and it is projected that lumber sales will account for 10% of the store's income during the first twelve months of operation.

There is nothing in the record that leads me to characterize the proposed use of the locus as a "lumber establishment" or as anything other than a retail store that caters to the needs of people who are repairing and renovating homes. To characterize the proposed use as a lumber establishment would be, in my view, akin to calling a drug store that stocks bags of ice an "ice establishment."

For the reasons set forth in this decision, the court rules that the sale at retail of small quantities of lumber on the property owned by the petitioners is a retail sale and a permitted use in a Business 2 District under Section 3363a of the Town of Falmouth Zoning By-Laws.

Decree accordingly.