Home EAGLE BUILDERS OF GROVELAND, INC., APPLIED GRAPHICS, INC. vs. PETER MINICH, P. SHELDON and DANIEL T. MURPHY, Members of the Board of Appeals of the Town of Groveland.

MISC 122848

June 16, 1988

Essex, ss.



The plaintiffs originally appealed from a decision of the defendant Board of Appeals of the Town of Groveland, dated February 10, 1987 which denied to Kimberly Jackson, the principal of Eagle Builders of Groveland, Inc. ("Eagle Builders"), a special permit to use the premises at 310 Main Street owned by the plaintiff Applied Graphics, Inc. ("Applied Graphics"), for what is in essence a custom woodworking home occupation. The matter was remanded to the Board by this Court (Fenton, J.) by order dated June 10, 1987 for clarification. The Board again denied the special permit by decision dated September 15, 1987 for the following reasons:

1. The proposed use, which involves construction of cabinets by the use of table saws, constitutes a manufacturing use which is not all owed in the Business District as provided in Section 801.2 of the Zoning By-Laws.

2. In addition, even if the proposed use were allowed in the Business District, it would emit dust, vibration and noise through the side door of the building which would be kept open to provide ventilation, and therefore be injurious and offensive to the neighborhood as provided in Section 801 of the Zoning By-Laws.

Accordingly, the plaintiffs applied for a further hearing, and a trial was held at the Land Court on February 9, 1988. In the absence of a stenographer, the trial session was taped. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. Kimberly Jackson, the owner of plaintiff corporation, Eagle Builders, and Bernard Burnim, President and Treasurer of Applied Graphics, testified for the plaintiffs and William E. Slusher, a 23 year resident of Groveland and a member of the Groveland Planning Board, testified for the defendant Board of Appeals (the "ZBA"). A view was taken by the Court in the presence of counsel on April 14, 1988 which included not only a tour of the facility in question, but also of the new premises in Amesbury where the plaintiff Applied Graphics now carries on its operations. In addition to the oral testimony, there were 13 exhibits introduced into evidence of which two series of color photographs consist of multiple parts.

On all the evidence I find and rule as follows:

1. The premises in question are situated in the Town of Groveland and are within a Business District. The Zoning By-Laws of the Town of Groveland (Exhibit No. 2) have no uses permitted of right in a Business District, a Limited Business District or an Industrial District. The language of Section 801 relative to Business District uses provides as follows:

In Business Districts, no building shall be erected or altered, and no building or land shall be used for any purpose that is injurious, noxious or offensive to the neighborhood, by reason of the emission of odor, fumes, dust, smoke, vibration, noise or other cause, existing or potential, or for any purpose except the following, and then only by a special permit from the Zoning Board of Appeals after a public hearing: . . . . (emphasis supplied)

2. By decision dated August 14, 1975 (Exhibit No. 3) the Board of Appeals granted a special permit for the use of the premises at 310-314 Main Street for the "business of industrial silkscreening process printing." The premises previously had been used for a printing business and the presses for this operation were sold to the "Lawrence Eagle Tribune"; however, the remainder of the premises were adaptable to use by Applied Graphics. The 1975 decision of the ZBA provided that the permit was granted as requested "with the stipulation that said operation is not substantially detrimental or objectionable to the surrounding neighborhood" (Exhibit No. 3). The legal meaning of the stipulation is unclear, but apparently the land owner survived any difficulties which said phrase may have brought. The following year a variance was issued to Applied Graphics to enlarge the right side of the then-existing building subject to the installation of a sprinkler system (Exhibit No. 4).

3. By decision dated March 20, 1980, a special permit was granted to Applied Graphics to use adjoining premises at 3-9 Elm Park for its operations (Exhibit No. 5). This portion of the premises is not involved in the current proceedings.

4. Applied Graphics is the owner of locus, a portion of which it wishes to lease to Eagle Builders. The business of Applied Graphics, industrial silkscreening, permanently affixes to portions of various industrial products the legends which make them intelligible to the consumer; for example, the dashboard of an automobile, the operating panel of electronic equipment such as the casing of a radio or other hi-fi equipment, all are imprinted by means of procedures similar to those used by the owner of the locus. This operation involves the use of chemicals and high heat to produce the finished product which is then returned to such manufacturers as Raytheon and others. The emissions from the Applied Graphics operation are monitored by several environmental agencies. The operation, since its original beginnings in Groveland, has steadily increased with the number of employees growing from the original four to approximately forty-eight at the time Mr. Burnim elected to move to the new industrial center in Amesbury which was viewed by the Court.

5. The Groveland location is like a rabbit warren requiring the use of stairs and corridors to reach various parts of the buildings, whereas the new location in Amesbury, to which Applied Graphics has now entirely moved, was designed to serve its specific needs and is all on one floor.

6. The plaintiff Eagle Builders is, in fact, a sole proprietorship. Mr. Jackson is engaged in selling and installing custom woodcraft in the homes of his clients. He presently carries on the operation in the basement of his home and has had no complaints about this from neighbors, only from his wife. The Groveland Zoning By-Laws permit customary home occupations in a Residential District under certain circumstances. His equipment is purchased from Sears-Roebuck and is of the type used by those persons fortunate enough to have handicraft skills. The equipment includes a ten inch table saw and a radial arm saw which is on legs and sits on his cellar floor. He also has a "Craftsman" drill press purchased at Sears-Roebuck which is on a work bench and a Sears three foot long, ten inch joiner designed to plane down a piece of lumber with a single bladed rotating armature. The premises which Eagle Builders wishes to lease from Applied Graphics has a reinforced concrete floor, eight inch thick concrete block walls and is presently ventilated by duct work leading to hoods on the roof. In Mr. Jackson's present operation at home he sweeps the saw dust from the woodworking into a five gallon pail. There is no vibration, and his children watch television in the family room above his woodworking.

7. The decision of the ZBA indicates that an abutter was concerned about the opening of the side door to the premises for ventilation during the operation. Since the testimony also was to the effect that the premises customarily would be used only one day per week, the concern seems exaggerated, but at the trial Mr. Jackson testified that the existing roof ventilation system would be adequate without leaving the door open.

8. The premises are located within a commercial neighborhood which apparently was designed to house small businesses providing the usual services of a small neighborhood shopping center, but the locus seems never to have been used for such purposes.

At first blush it would appear that the present case is governed by the first paragraph of G.L. c. 40A, ยง6, but apparently the "permitted uses" in Business Districts have not been changed since the special permits granted to Applied Graphics. The history of the printing business is not traced back far enough in the evidence to discern whether it was "grandfathered in" as a non-conforming use when zoning was first adopted in Groveland, so the Court has no information about the historic use of locus at the time of the last zoning amendment affecting locus. Neither does the plaintiff question the present zoning which clearly appears vulnerable to attack under the principles of SCIT, Inc. v. Braintree, 19 Mass. App. Ct. 101 (1984), since there is no use permitted of right in the Business District where the locus is situated. The Court, however, is reluctant to reach this extreme result if the present impasse can be solved in a less radical manner and to apply SCIT to the present situation would authorize any use to be made of those portions of town now zoned for Business, Limited Business and Industrial, as well as perhaps for other uses which the Court has not explored.

To view the present problem more narrowly, the rule in cases involving the issuance of special permits is that the Court conducts a de novo hearing to determine the validity of the ZBA's decision which must be upheld if it rests on legally tenable grounds and is not unreasonable, whimsical or arbitrary. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970) ; Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980). Of course, the Court may not substitute its judgment for that of the Boa rd. S. Kemble Fischer Realty Trust v. Board of Appeals of Concord, 9 Mass. App. Ct. 477 , 481 (1980) ; Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979) (and cases cited).

On the facts that I have found, it is clear that the decision of the Board is vulnerable on the legal grounds which provide the test of the standards which the Court has followed. The use by Applied Graphics is far more intense and industrial in nature than the operation proposed by Eagle Builders which consists of custom woodworking by one or two people to be installed by Mr. Jackson in the homes of his customers. It is an operation now carried on in his cellar and appears to be far less intense than that enjoyed by many persons as a hobby. The defendants argue that this use is manufacturing and not business, and if we were discussing a multi-person operation constructing cabinets on a large scale for the kitchens of Massachusetts, the argument might be valid. To apply it to a small custom- crafted business such as the plaintiffs here envision was clearly unreasonable. I, therefore, remand the matter to the Board of Appeals for the issuance of the special permit subject to such reasonable conditions as the Board in the exercise of its discretion may wish to impose, if any, as to the hours of operation, the number of persons to use the space, the days of the week in which it may be carried on and the like. The other use which the plaintiff Eagle Builders wishes to make of the premises is for storage, and there seems no reason why the premises may not be used for this end without conditions.

The Court recommends that the Town of Groveland and its planning board take immediate steps to revise its Zoning By-Laws which fail to meet the standards laid down by the Appeals Court.

Judgment accordingly.