Plaintiff Lydon Family Trust (Plaintiff) filed its unverified complaint on April 30, 2009, appealing, pursuant to the provisions of G.L. c. 40A, § 17, a decision of Defendant Town of Milton Board of Appeals (the ZBA) which granted a use variance and a special permit to Defendant Thomas Coulter (Coulter) (together with the ZBA, Defendants) pertaining to property located at 919 Blue Hill Avenue in Milton, Massachusetts (Locus). A case management conference was held on July 1, 2009. At a hearing held on February 19, 2010, this court allowed Defendants Motion to Remand the matter back to the ZBA, and issued its Order for Remand to the Milton Board of Appeals. On April 15, 2010, the ZBA issued its remand decision; on May 3, 2010, Plaintiff filed its First Amended Complaint, appealing the ZBAs remand decision.
Plaintiff filed its Motion for Summary Judgment on May 14, 2010, together with supporting memorandum, Statement of Material Facts, and Appendix including Affidavits of Matthew J. Dunn, Esq. and Frederick Lydon. On June 14, 2010, the ZBA filed its Opposition and Cross-Motion for Summary Judgment, together with supporting memorandum, Statement of Additional Material Facts, and Appendix including Affidavits of William B. Clark, Jr., Frederick G. Barry, Jr., Esquire, and Diane Colligan. Coulter filed his support of the ZBAs Cross-Motion on June 16, 2010. Plaintiff filed its Opposition to Cross-Motion and Reply on July 14, 2010. A hearing was held on all motions on August 30, 2010, at which time the matter was taken under advisement.
This court entered a Judgment and issued a Decision on September 27, 2010 (Land Court Decision 1), finding that Plaintiff lacks standing to challenge Special Permit 4 and Variance 3, and dismissed the Complaint. Plaintiff filed a Notice of Appeal from Land Court Decision 1 on October 1, 2010. In a decision dated June 29, 2011 (10-P-1950), the Appeals Court found that the evidence suffices to support the plaintiffs claim of standing, and reversed this courts judgment of dismissal, remanding the case to this court for judgment on the merits. On August 1, 2011, Plaintiff filed its Motion to Renew Motion for Summary Judgment. On August 8, 2011, Defendants filed their Cross-Motion to Renew Their Previously Filed Cross-Motion for Summary Judgment. On August 9, 2011, Plaintiff filed its Motion for Leave to Reply to Defendants Statement of Additional Material Facts. A status conference was held on September 1, 2011, at which the parties agreed to go forward on their motions without a hearing. On September 15, 2011, Plaintiff filed a Response to Defendants Statement of Additional Material Facts, and at that time the matter went under advisement.
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. Commr of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).
The following material facts are not in dispute:
1. Locus is located at 919 Blue Hill Avenue, Milton, Massachusetts in a Residence A District (the District), which, according to the Zoning Bylaws (the Bylaws) of the Town of Milton (the Town), allows single-family dwellings with certain accessory uses as well as other uses as of right and by special permit. The unchallenged affidavit of William B. Clark, Jr., states that Blue Hill Avenue, also known as Route 138, is a busy thoroughfare connecting the Town of Milton and the Mattapan section of Boston.
2. Coulter purchased Locus from the BTB 919 Blue Hill Realty Trust by deed dated October 28, 1991. [Note 1] Locus contains approximately 0.85 acres and has a trapezoidal shape such that Locuss frontage on Blue Hill Avenue (approximately 293 feet) is significantly greater than Locuss depth. [Note 2] Nearby and abutting properties containing residences are long and narrow such that their depths are significantly greater than their frontage on Blue Hill Avenue. Locus slopes downward from Blue Hill Avenue to the rear of the lot. A four-bedroom, two-bathroom house was built on Locus in 1963 and is currently inhabited by Coulter and his family. A detached garage was constructed on Locus in 1999.
3. Plaintiffs property is located at 175 Atherton Street in Milton (Plaintiff Property). Plaintiff Property contains a single-family residential dwelling, and is located in the District and is the rear abutter of Locus. Plaintiff obtained title to Plaintiff Property by deed dated September 29, 2003, from June M. Lydon. [Note 3]
4. By decision dated April 9, 1962, the ZBA, pursuant to Section III.A.7.(d) of the Bylaws, issued a special permit with conditions (Special Permit 1) to Edward F. Fleming (the owner of Locus at the time) (E. Fleming), personally (including any assistants), for maintaining a greenhouse, and to erect and maintain on said lot a single family dwelling with attached greenhouse 24 9 x 51 9. . . . E. Fleming testified before the ZBA that he intended to sell from the proposed greenhouse only flowers and shrubs raised on the premises. [Note 4]
5. By decision dated September 10, 1964, the ZBA issued a special permit with conditions (Special Permit 2) to E. Fleming, personally (including any assistants), for the erection and maintenance of a greenhouse 31 10 1/4 by 103 4 5/8 and attached potting shed 32 x 25 at [Locus] for the use thereof for selling only produce raised on the premises; said greenhouse to be in addition to existing greenhouse and attached dwelling . . . .
6. By decision dated July 13, 1984, the ZBA issued a special permit with conditions (Special Permit 3) and variance (Variance 1) to David I. Fleming (nephew of E. Fleming, deceased) (D. Fleming) for the conduct thereon of a florist business as presently operated . . . . , allowing the sale of produce raised on the premises in a greenhouse or nursery to continue and also allowing the sale of produce raised off the premises as part of the florist business. [Note 5] Among the conditions to Special Permit 3 and Variance 1 were that the hours of operation would be 8:00 A.M. to 6:00 P.M., seven days a week, to be extended until 9:00 P.M. during and one week prior to certain holidays. Neither Special Permit 3 nor Variance 1 stated that it was personal to D. Fleming and neither stated an expiration date. Furthermore, neither Special Permit 3 nor Variance 1 were challenged. [Note 6]
7. Upon purchasing Locus in 1991 from the BTB 919 Blue Hill Realty Trust, Coulter continued operating the florist business that had been operated on Locus. The Milton Building Commissioner (the Building Commissioner) issued a Cease and Desist Order (the Cease and Desist Order) dated December 9, 1994, stating that Coulter could not sell Christmas trees or anything else on [Locus] without going before the [ZBA]. [Note 7]
8. On April 3, 1995, Coulter appealed the Cease and Desist Order to the ZBA and requested an amendment to Variance 1 to permit the sale of decorative pumpkins and Christmas trees during the relevant seasons. Coulters appeal stated that [the Building Commissioner] based his order on his apparent belief that [s]pecial [p]ermits are personal and not transferable.
9. At a public hearing held on June 13, 1995, the [ZBA] was informed that a florist business has been operated from [Locus] for many years and that the previous owner had commenced to operate a landscape and contracting business from [Locus] and that [Coulter] has continued to operate a landscape business as well as the florist business. [Note 8]
10. In his application to amend Variance 1, Coulter stated that a landscaping business would be operated on Locus and described it as follows:
The business operating from [Locus] shall be known as Coulter Landscaping and Nursery, Inc. Said business shall operate out of the greenhouse and sales area within the residential structure. The business shall consist of landscaping services including landscape design, installation, lawn care and maintenance, fertilization, grading and sodding; retail and wholesale plant nursery sales, retail and wholesale loam and mulch sales; snow plowing and sanding; tree work and firewood sales; retail sales of pumpkins and Christmas trees during appropriate holiday seasons. [Note 9]
11. By decision dated February 6, 1996, the ZBA granted a Temporary Variance, with conditions (Variance 2) to Coulter to allow the continuation of the operation of the florist business, the landscape business and the sale of Christmas trees and decorative pumpkins during the appropriate seasons at [Locus] . . . . [Note 10], [Note 11] Variance 2 expired on February 26, 1999.
12. By decision dated October 10, 1996, the ZBA granted a modification of Special Permit 3 and Variances 1 and 2, with conditions (the 1996 Modification), so as to permit the construction of a detached garage for the storage of trucks and trailers used in the conduct of the non-conforming landscape business at [Locus] . . . . The 1996 Modification had no expiration date and did not state that it extended Variance 2. [Note 12]
13. On January 6, 2009, Coulter filed an application with the ZBA to renew the lapsed Variance 2 as modified by the 1996 Modification and to modify the permit to reflect the natural evolution of [his] business (the Application). [Note 13] According to the Application, Coulter sought to do the following: increase their entitlement for Sunday operation to reflect the changing times; remove the portable toilet . . . and replace it with an interior facility; permission for three additional trucks to be kept on [Locus] while not in operation; additional minimal hours of operation; to maintain on the property a 60 yard dumpster used in conjunction with the landscaping business; relief from the requirement that [Coulter] and his family reside at Locus; permission to sell fruits, vegetables, flowers and Christmas trees seasonally from a display tent on the property; install additional refrigeration for [the aforementioned] perishables; sell and store non-perishables on site, including shrubs, trees, mulch, loam, fertilizer, stone pavers, stone dust and gravel; and modify their signage to reflect additional entitlements.
14. A public hearing on the Application was held February 4, 2009. The ZBA received 151 letters of support for the Application from area residents, one such letter from the Towns fire chief and no letters opposing the Application.
15. By decision dated April 21, 2009, the ZBA unanimously issued a special permit, with conditions (Special Permit 4) for the renewal of the lapsed Variance 2 as modified by the 1996 Modification. [Note 14] Special Permit 4 was recorded with the Town Clerk on April 21, 2009. The conditions to Special Permit 4 (the Conditions) are as follows:
2. The existing portable toilet located near the rear of the property must be removed and no portable toilet may be maintained [on Locus]
3. No more than two (2) pick up trucks, five (5) dump trucks and six (6) 14 foot trailers may be located and stored at [Locus]. When not in use, or after business hours, the trailers and trucks, to the extent possible, shall be housed in the existing detached garage.
4. Except as noted above in item 1, relating to the operation of the landscaping business on Sundays, the hours of operation shall remain as previously approved by the [ZBA], i.e., 8am to 6pm, seven days a week, except that from the last Friday before Thanksgiving Day to the following January 1, the hours of operation may be from 8am to 9pm.
5. A forty (40) yard dumpster may be maintained at the premises. The movement or emptying of said dumpster must be scheduled to occur on weekdays between 10am and 2pm.
6. The owner of the business operated out of [Locus] shall reside with his family and maintain his principal residence at [Locus].
7. [Coulter] may sell fruits, vegetables, flowers and Christmas trees seasonally from a display tent at the premises.
8. [Coulter] may sell and store certain non-perishables on site, including, shrubs, trees, mulch, loam, fertilizer, stone pavers, stone dust and gravel, commensurate with level and seasonal nature of the landscaping business.
9. [Coulter] shall take all reasonable steps to ensure that stockpiles of materials are maintained so as to reduce the impact of odors and dust upon neighboring properties.
10. [Coulter] shall take all reasonable steps to ensure that lighting, including any and all lights used for the prevention of theft, shall be reasonably sited so as not to interfere with neighboring residential properties.
11. Subject to the review and approval of the [Towns] Sign Review Committee, if applicable, [Coulter] may develop signage that is appropriately designed to be consistent with the signage used by other businesses in the area.
12. The detached garage approved by the ZBA in [the 1996 Modification], may continue as a nonconforming pre-existing structure.
13. [Special Permit 4] shall expire three (3) years from the date of its recording with the Milton Town Clerk. At that time if [Coulter] wishes to continue the uses permitted under [Special Permit 4], he must reapply to the ZBA for a renewal of [Special Permit 4].
16. In Special Permit 4, the ZBA stated that [t]he use of [Locus] to run a business selling produce, flowers and later to house a landscaping business, has been the subject of several [ZBA] decisions dating back to 1962 and stated that the decisions on Special Permits 1, 2 and 3, Variances 1 and 2 and the 1996 Modification were incorporated herein by reference. In addition, the ZBA found the following: the ZBA had received 151 letters of support for the Application from area residents; approximately thirteen area residents appeared at the hearing in support of the Application; several participants did not oppose the Application but had questions about it, including one neighbor who was concerned about an increase of materials being stored near the property line between Locus and his property and another neighbor who was concerned about the lack of Coulter Landscapings long term plan for Locus; several participants stated that Blue Hill Avenue was already subject to a flow of commercial traffic that would not be made worse by approving the Application; and Lydon had sent several letters to the ZBA opposing the Application and appeared at the hearing in opposition to the Application, stating that he represented Plaintiff.
17. Special Permit 4 concluded as follows:
Taking into account all materials and correspondence it received, the testimony presented and all reasonable inferences, the [ZBA] found that given the history of the uses of the Coulter Property, the overwhelming support of nearby residents . . . and the level of commercial and commuter use of the general area within which the Coulter Property is located, that a Special Permit can properly [sic] granted without substantial detriment to the public good and without substantially derogating from the intent or purpose of the Zoning Bylaw, with reasonable conditions incorporated as part of the Special Permit to adequately protect nearby residential properties.
18. Plaintiff appealed Special Permit 4. On February 9, 2010, this court remanded this case to the ZBA, ordering that the ZBA shall clarify the issues presented by the application . . . shall take evidence at a new public hearing . . . and shall issue a decision based upon that evidence. The ZBA held a remand hearing on March 23, 2010 (the Remand Hearing) and issued another decision dated April 15 , 2010, granting a variance with conditions (Variance 3) that incorporated all of the terms of Special Permit 4, including the operation of a landscaping business on Locus. [Note 15] There was no expiration date stated for Variance 3.
19. In Variance 3, the ZBA found that Locus is oddly shaped with a large frontage, in excess of 293 feet, on Route 138, a busy north/south Massachusetts state highway; Locus is the only property in the area that for almost a half century has been used as both a residence and for commercial purposes; a barn on Locus built to support commercial use distinguishes Locus from neighboring properties; and that the aforementioned conditions affect only Locus and not the District generally, such that a literal enforcement of the zoning by-laws requiring the discontinuation of the greenhouse and landscaping business that has taken more than 15 years to develop, would cause the Coulters to incur a substantial hardship.
20. In Variance 3, the ZBA also found that there was overwhelming public support for the Coulters at the [the Remand Hearing], and prior, public hearings on this matter as well as a history of zoning relief granted to the Coulters and previous owners of [Locus] over the years, both of which demonstrated that [Variance 3] could be granted without detriment to the public good . . . or substantially derogating from the intent or purpose of the By-laws.
Coulter argues that, pursuant to Special Permit 4 and Variance 3, he is entitled to operate a florist and landscaping business at Locus, which can sell produce both grown and not grown on Locus. Plaintiff asserts that Special Permit 4 was based on legally untenable grounds and was unreasonable, whimsical, capricious and arbitrary. Plaintiff further contends that Coulter has not satisfied the statutory prerequisites for Variance 3 as set forth in G.L. c. 40A, § 10. I shall address each of these issues in turn.
Under G.L. c. 40A, § 17, local zoning board decisions are given de novo review. Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 485 (1999); see also 39 Joy St. Condominium Assn v. Bd of Appeal of Boston, 426 Mass. 485 , 488 (1998); Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953). Judicial review, however, is circumscribed in that a zoning boards decision cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary. MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). [T]he court finds the facts de novo and measures the legal sufficiency of the [boards] decision against the courts findings of fact rather than against those found by the board. Tisbury Fuel Serv., Inc. v. Marthas Vineyard Commn, 68 Mass. Ap. Ct. 773, 776 (quoting Green v. Bd. of Appeals of Provincetown, 26 Mass. App. Ct. 469 , 473 n. 6 (1988)).
So long as any reason on which the board can fairly be said to have relied has a basis in the trial judge's findings and is within the standards of the zoning by-law and The Zoning Enabling Act, the boards action must be sustained regardless of other reasons which the board may have advanced. S. Volpe & Co. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976).
A. Special Permit 4.
Under G.L. c. 40A, § 9, bylaws or ordinances shall provide for specific types of uses which shall only be permitted in specified districts upon the issuance of a special permit so long as such uses are in harmony with the general purpose and intent of the bylaw or ordinance. Special permits may impose conditions, safeguards and limitations on time or use. G. L. c. 40A, § 9.
The Bylaws require that an applicant for a special permit must show that in addition to any specific requirements herein or in the law contained, that [the special permit] may be granted without substantial detriment to the public good and without substantially derogating from the intent or purpose of this bylaw. Bylaws, § IX.C.(1). In granting a special permit, the ZBA may impose conditions and limitations it believes are necessary to safeguard the legitimate use of the property in the neighborhood and in the health and safety of the public. Id.
There appears to be confusion by the parties, particularly the ZBA, as to which prior variances and special permits remain valid and whether certain uses require a special permit or a variance. As a result, it is necessary to examine each variance, special permit and requested use in the chain of title.
Special Permits 1 and 2 are no longer valid because they were personal to E. Fleming. Special Permit 3 (allowed pursuant to Section III.A.7.(d) of the Bylaws) was granted to allow the owner of Locus to continue operating a florist business selling produce raised on Locus and Variance 1 was granted to allow the owner of Locus to continue operating a florist business on Locus, including selling produce not grown on Locus. [Note 16] Both Special Permit 3 and Variance 1 are still valid today because they were not personal to D. Fleming, had no expiration date and were not appealed. See also Huntington v. Zoning Bd. of Appeals of South Hadley, 12 Mass. App. Ct. 710 , 716 (1981) (a variance applies to the land rather than to its current owner, and . . . runs with the land when it is conveyed to [another] person.). In 1996, Variance 2 authorized the continuation of the florist business [Note 17] with additional authorization of the seasonal sale of Christmas trees and pumpkins and was the first time a landscaping business was authorized on Locus; however, by its own terms, Variance 2 expired in 1999 and is no longer valid. Even though the 1996 Modification (which allowed for garaging of vehicles part of the landscaping business) contained no expiration date, it is unlikely that the 1996 Modification would have intended to remove Variance 2s expiration date and extend it indefinitely without explicitly stating as such. Therefore, only Special Permit 3 and Variance 1 remain valid.
Although Special Permit 3 and Variance 1 allow the sale of produce in connection with a florist business, they do not elaborate on the term produce. A dictionary definition of produce is agricultural products and especially fresh fruits and vegetables as distinguished from grain and other staple crops. Merriam-Webster, produce, http://www.m-w.com (last visited April 5, 2012). Therefore, it would seem that produce refers to edible agricultural products. Although the Bylaws do not explicitly define produce, the Bylaws appear to view produce as a much more expansive term, as outlined below.
A parcel of five acres or less may be used as of right in the District for agricultural use, selling only produce raised on the premises; provided, however, that this . . . shall not be deemed or construed to permit or authorize the maintenance of any building or structure. Bylaws, § III.A.4.(b). The following use, however, is authorized by special permit: [Note 18]
On a parcel of five acres or less a greenhouse or nursery selling only produce raised on the premises; provided, however, that greenhouses and nurseries in single residence districts shall be permitted to sell, only during the Christmas season, cut trees, Christmas trees, boughs, holly and wreaths grown or fabricated elsewhere than on the premises.
Bylaws, § III.A.7.(d). In the District, an accessory use is allowed on the same lot with and customarily incident to [allowed as of right non-residential uses in the District] or to uses permitted [by Special Permit], and not detrimental to a residential neighborhood. Bylaws, § III.A.6. [T]he sale of produce not raised on the premises is not an accessory use unless, in the case of a commercial greenhouse maintained on any lot of less than five acres established and doing a non-conforming business, a special permit is granted by the [ZBA] . . . . Bylaws, § III.B.1.(d). To summarize, produce raised on the premises may be sold as of right if it is agricultural use but requires a special permit if sold from a greenhouse or nursery; produce raised off the premises can be sold only from a commercial greenhouse as an accessory use, which requires a special permit.
The Bylaws and the ZBA, however, appear to construe the term produce more broadly than edible agricultural products. The Bylaws do not define the term nursery, but a dictionary definition of a nursery is an area where plants are grown for transplanting, for use as stocks for budding and grafting, or for sale. Merriam-Webster, nursery, http://www.m-w.com (last visited April 27, 2012). Produce must mean more than edible agricultural products because Section III.A.7.(d) of the Bylaws specifically refers to produce grown from a nursery and a nursery does not sell such products. Additionally, Special Permit 1 was granted for a greenhouse, pursuant to this same section of the Bylaws, to E. Fleming, who stated that he intended to sell . . . only flowers and shrubs raised on the premises. (emphasis added). Finally, Special Permit 3 was granted, also pursuant to Section III.A.7.(d), to continue the operation of a florist business, which does not appear to sell edible agricultural products based on its dictionary definition: a person who sells or grows for sale flowers and ornamental plants. Merriam-Webster, florist, http://www.m-w.com (last visited April 27, 2012). As a result, the Bylaws appear to construe produce to include not just edible products such as fruits and vegetables, but also flowers, plants, bushes and trees. [Note 19] Therefore, I find that Special Permit 3 and Variance 1 give Coulter the right to sell produce, as construed expansively by the Bylaws, raised on Locus from a greenhouse or nursery and off Locus and to operate a florist business on Locus. Additionally, I find that produce raised on Locus, but not from a greenhouse or nursery, may be sold on Locus as of right.
Special Permit 4 authorizes sell[ing] fruits, vegetables, flowers and Christmas trees seasonally from a display tent at the premises (Condition 7). Although Condition 7 does not state whether these products are raised on or off the premises, the expansive definition of produce would include fruits, vegetables and flowers, which would be saleable under Special Permit 3 and Variance 1. Nevertheless, based on Section III.A.7.(d) of the Bylaws, it would appear that a special permit is required to sell Christmas trees on Locus, which is addressed, infra. [Note 20]
We now come to the central issue in this case: to determine the validity of the landscaping business on Locus pursuant to Special Permit 4. The Bylaws do not define the term landscaping business. By Coulters description of Coulter Landscaping in his application for Variance 2, a landscaping business provides landscaping services, such lawn care and maintenance, grading, sodding, tree work, landscape design and snow removal, on other properties, and would also sell plants, loam, mulch and firewood grown on or off the business premises. A landscaping business would need to store on its premises the vehicles and equipment needed to perform its services, such as pickup trucks, dump trucks, trailers and snow plow equipment, as well as materials for its services, including mulch, loam, gravel and sand.
The Bylaws authorize neither as a use as of right nor by special permit the operation of a landscaping business (Conditions 1 and 4) or the selling and storing of mulch, loam, fertilizer, stone pavers, stone dust and gravel as part of such a business (Condition 8). Furthermore, the Bylaws do not allow as a use as of right or by special permit the maintenance of a forty-foot dumpster (Condition 5). Therefore, these uses require variances; however, the ZBA erroneously authorized these uses by special permit in Special Permit 4, specifically in Conditions 1, 4, 5 and 8. Therefore, I find that Conditions 1, 4, 5 and 8 of Special Permit 4 are invalid as they authorize by special permit uses that may be authorized only by variance. [Note 21] Nevertheless, to the extent that the sale of shrubs and trees (Condition 8) are part of operating a florist business, they would be allowed pursuant to Special Permit 3 and Variance 1 and subject to any other relevant provisions in the Bylaws. [Note 22]
Conditions 3 and 12 of Special Permit 4 allow Coulter to garage on Locus up to two pickup trucks, five dump trucks and six fourteen foot trailers, none of which are automobiles. In the District, [t]he garaging or maintaining on any lot of more than five automobiles when accessory to a dwelling may be authorized by special permit. Bylaws, § III.A.7.(c). Additionally, the garaging or maintaining on any lot of more than five automobiles at any time is not an accessory use unless a special permit is granted by the [ZBA] . . . . Bylaws, § III.B.1.(a). The maintaining on any lot of any commercial automobile is not an accessory use except that one such commercial vehicle may be maintained provided that such commercial vehicle is garaged. Bylaws, § III.B.1.(b). The garaging or maintaining on any lot of less than five acres used for agriculture of more than four commercial vehicles is also not an accessory use. Bylaws, § III.B.1.(c).
The Bylaws do not define the terms automobile, commercial automobile or commercial vehicle, but a dictionary definition of an automobile is a usually four-wheeled automotive vehicle designed for passenger transportation. Merriam-Webster, automobile, http://www.m-w.com (last visited April 5, 2012). The vehicles specified in Conditions 3 and 12 would be considered commercial vehicles and there appears to be neither any previous special permit or variance nor any provision in the Bylaws allowing their use on Locus as of right or by special permit. At most, it appears that Section III.B.1.(b) of the Bylaws would allow for one commercial vehicle to be garaged on Locus as an accessory use to the sale of produce authorized by Special Permit 3 or Special Permit 4. The garaging of the aforementioned vehicles on Locus may be authorized only by variance, and I find that Conditions 3 and 12 of Special Permit 4 are invalid as they authorize by special permit a use that may be authorized only by variance.
Condition 11 of Special Permit 4 relates to signage on Locus. The Bylaws state explicitly that [n]o person shall erect any permanent sign of any type in any residential zoning district of the town. Bylaws, § III.B.3.(a). Although temporary signs are permitted, the only exceptions to the prohibition on permanent signs in the District are pre-existing non-conforming signs and any sign permitted by the Board of Selectmen as necessary for public safety or the public health. Bylaws, § III.B.3.(c). The Bylaws do contain detailed provisions for signs in business districts, see Bylaws, § III.C.3; however, Condition 11 appears to be directly at odds with the Bylaws because it purports to authorize Coulter to develop signage in a residential district. Therefore, it would appear that a variance would be required to develop signage in a residential district, and I find that Condition 11 of Special Permit 4 is invalid because it authorizes by special permit a use that may be authorized only by variance. Nevertheless, Special Permit 3 and Variance 1 do allow for signs, see footnote 6, and, thus, Coulter may erect a sign for the florist business pursuant to Special Permit 3 and Variance 1 and subject to any other relevant provisions in the Bylaws.
Even if the term produce were not construed as broadly as discussed, supra, Special Permit 4 would still seem to allow the sale of fruits and vegetables not raised on Locus. Condition 7 of Special Permit 4 authorizes sell[ing] fruits, vegetables, flowers and Christmas trees seasonally from a display tent at the premises. Selling flowers raised on or off Locus would already be permissible pursuant to Special Permit 3 and Variance 1 as part of a florist business; however, Christmas trees require a special permit as outlined above. [Note 23] If produce were construed only as edible agricultural products, to the extent that fruits and vegetables are raised on Locus, selling them would be an as of right use. See Bylaws, § III.A.4.(b). To the extent that fruits and vegetables were raised on Locus in a greenhouse or nursery, they would be saleable pursuant to Special Permit 3. If fruits and vegetables were raised off the premises they would be allowed pursuant to Special Permit 3/Variance 1 [Note 24] and also by Special Permit 4. As a result, the only issue regarding uses authorized by Special Permit 4 would be the sale of fruits, vegetables and Christmas trees not raised on Locus as an accessory use under Section § III.B.1.(d) of the Bylaws. I shall address the parties arguments regarding Special Permit 4 in this context.
In addition to the general requirement that a special permit may be granted only if it can be done without substantial detriment to the public good and substantial derogation from the Bylaws purpose, the Bylaws also impose a specific requirement to obtain a special permit to sell produce raised off the premises as an accessory use, namely that such use must be not detrimental to a residential neighborhood. See Bylaws, § III.A.6. This requirement is similar to the general requirement in granting a special permit that a use must not be substantially detrimental to the public good and shall be addressed in that analysis.
1. Failure to Make Substantive Findings.
Plaintiff argues that the ZBA failed to articulate findings in Special Permit 4 because the ZBA only restated the Bylaws language and conditions and did not indicate what criteria or evidence it considered in issuing Special Permit 4. Defendants contend that Special Permit 4 summarizes written evidence and verbal testimony presented to the ZBA and explicitly relates such evidence and reasonable inferences to its conclusion that Special Permit 4 should be granted.
Plaintiff cites several cases in which zoning authorities failed to make sufficient findings for their decisions; however, precedent is clear that zoning decisions may be upheld despite meager findings. See e.g. Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 293 (1972) (decision to grant variance upheld even though findings were characterized as meager); Sherman v. Bd. of Appeals of Worcester, 354 Mass. 133 , 133 (1968) (The board of appeals, after somewhat meager subsidiary findings, made the necessary findings to meet the statutory requirements.). See also Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 n. 11 (2001) (Judicial deference appears especially appropriate as to decisions . . ., which reflect the intimate knowledge, experience, and judgment of local officials.). Plaintiff is correct that the ZBA may not have used the phrase we find that or words to that effect, but such words are not necessary because Special Permit 4 contains implied findings that show the criteria and evidence the ZBA considered. Cf. Pierce v. Bd. of Appeals of Carver, 2 Mass. App. Ct. 5 , 6-7 (1974) (zoning boards failure to make a finding, express or implied that was essential to the validity of the boards decision meant that the decision had to be annulled) (emphasis added).
In concluding that granting Special Permit 4 would not be substantially detrimental to the public good and would not substantially derogate from the Bylaws intent or purpose, the ZBA stated that the following factors contributed to its decision: the history of the uses of the Coulter Property, the overwhelming support of nearby residents of the Town of Milton and the level of commercial and commuter use of the general area within which the Coulter Property is located . . . . In Special Permit 4, the ZBA noted that [t]he use of [Locus] to run a business selling produce, flowers and later to house a landscaping business, has been the subject of several [ZBA] decisions dating back to 1962 and incorporated by reference the decisions on Special Permits 1 through 3 and Variances 1 and 2. [Note 25] The ZBA also noted the 151 letters of support for the Application, that many residents appeared and testified in support for the Application and that while two residents raised concerns and questions about the Application, only Lydon opposed the Application. Furthermore, the ZBA noted Coulters neighbors testified that Blue Hill Avenue is already subject to commercial and commuter traffic, such that traffic in the area would not be worsened if the Application were approved. Therefore, the aforementioned evidence in Special Permit 4 provides ample support for and a connection to the ZBAs conclusion that the history and use of Locus, the overwhelming support of nearby residents and the level of traffic in Locus surrounding area meant that Special Permit 4 could be properly granted under the Bylaws to the extent it allows the sale of fruits, vegetables and Christmas trees not raised on Locus. [Note 26] These findings and conclusions show that the ZBA had sufficient evidence to conclude that the Application would not be substantially detrimental to the public good and would not substantially derogate from the Bylaws purpose or intent. As a result, I find that the ZBA articulated sufficient findings in its decision to grant Special Permit 4 to the extent that Special Permit 4 allows the sale of fruits, vegetables and Christmas trees not raised on Locus.
2. Substantial Detriment to the Public Good and Substantial Derogation From the Bylaws Purpose.
To reiterate, the only issue regarding uses authorized by Special Permit 4 is the sale of fruits, vegetables and Christmas trees not raised on Locus as an accessory use under the Bylaws. Plaintiff argues that the Bylaws limit accessory uses of residences to specific uses and only in supplement to residential use, but that Coulters use of Locus substantially derogates from the Bylaws purpose because it has resulted in the residential use becoming an accessory use to commercial ventures. [Note 27] Defendants point to the overwhelming support for Special Permit 4 from Town residents, Locus location on Blue Hill Avenue, a busy thoroughfare, and the use of Locus for nearly fifty years as a commercial greenhouse business, together with numerous special permits and variances that have not been challenged, as evidence that Special Permit 4 does not substantially derogate from the Bylaws purpose and is not substantially detrimental to the public good.
The Bylaws specifically authorize by special permit a commercial greenhouse operating as a non-conforming business to be an accessory use to sell produce not raised on the premises. Bylaws, § III.B.1.(d). The Bylaws specifically contemplate uses in the District other than residential dwellings, [Note 28] including the use specifically permitted by Special Permit 4 and, thus, it cannot be said that Special Permit 4 substantially derogates from the Bylaws purpose.
Moreover, the record does not support Plaintiffs argument that Special Permit 4 is substantially detrimental to the public good. As described earlier, the record shows overwhelming support for Coulters business as whole (let alone selling fruits and vegetables sold raised off the premises); Locus is on a main thoroughfare and Special Permit 4 would not create traffic problems because Locus is already subject to commercial and commuter traffic; and, most significantly, greenhouse and/or florist business has been operated on Locus since 1962 selling various produce and obtained numerous special permits and variances that have not been challenged. The history and use of Locus, the overwhelming support of local residents and the current level of traffic near Locus also show that allowing the sale of fruits, vegetables and Christmas trees not raised on Locus as an accessory use under the Bylaws is also not detrimental to a residential neighborhood.
As a result, I find that Special Permit 4 is not substantially detrimental to the public good, does not substantially derogate from the Bylaws purpose and is not detrimental to a residential neighborhood, all only to the extent that it allows for the sale of fruits, vegetables and Christmas trees not raised on Locus. Furthermore, I find that the ZBA did not act arbitrarily, capriciously or unreasonably in granting Special Permit 4 only to the extent that it allows for the sale of fruits, vegetables and Christmas trees not raised on Locus. [Note 29]
The following Conditions do not authorize any uses and are simply conditions that Coulter must abide by in exercising Special Permit 4: prohibiting portable toilets on Locus (Condition 2); requiring the owner of the business operated on Locus to reside on Locus and keep it as his primary residence (Condition 6); maintaining stockpiles of materials to reduce their odor (Condition 9); lighting requirements (Condition 10); and an expiration date (Condition 13). As a result, I find that Conditions 2, 6, 9, 10 and 13 of Special Permit 4 remain valid only to the extent that Special Permit 4 authorizes the sale of fruits, vegetables and Christmas trees not raised on Locus.
B. Variance 3.
Defendants argue that Variance 3 incorporates the provisions of Special Permit 4 and, therefore, allows the use of Locus for the landscaping business. Section IX.D. of the Bylaws provides that appeals or petitions involving variances from the terms of the bylaw including use variances shall be dealt with by the [ZBA] in accordance with the provisions of [G.L. c. 40A] and that [t]he [ZBA] shall have the authority to grant use variances. [Note 30] Under G.L. c. 40A, § 10, a variance from a zoning ordinance or bylaw may be granted where the permit granting authority finds that (1) owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant; (2) desirable relief may be granted without substantial detriment to the public good; and (3) without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law. Since the requirements for the grant of a variance are conjunctive, not disjunctive, a failure to establish any one of them is fatal. Kirkwood v. Bd. of Appeal of Rockport, 17 Mass. App. Ct. 423 , 428 (1984).
The following uses are not enumerated in the Bylaws as being allowed in the District by special permit and, thus, they require a variance: operating a landscaping business on Locus; selling and storing mulch, loam, fertilizer, stone pavers, stone dust and gravel as part of such a business; maintaining a forty-foot or sixty-foot dumpster on Locus as part of such business; maintaining and garaging at least seven commercial vehicles and trailers as part of such business; and erecting signage for a landscaping business.
Plaintiff asserts that Coulter has failed to satisfy the statutory requirements to obtain a variance. First, Plaintiff argues that there are no circumstances relating to the soil conditions, shape, or topography of Locus that do not generally affect the District. Second, Plaintiff denies that literal enforcement of the Bylaws would involve substantial hardship to Coulter. Third, Plaintiff contends that Variance 3 substantially derogates from the purpose of the Bylaws, causing substantial detriment to the public good.
Plaintiff argues that Locus is not affected by any unique circumstance relating to soil conditions, shape or topography. [Note 31] Plaintiff asserts that topography has only been the basis for a variance for land when there are debilitating features that prevent landowners from making any use of such land. Plaintiff argues that Locus does not have such features or that such features also affect the other properties in the District. Moreover, Plaintiff argues that Locus shape and the traffic on Blue Hill Avenue is not a unique circumstance because the shape (trapezoid) is not unusual and the traffic also affects neighboring properties. Furthermore, Plaintiff argues that nonconforming uses near Locus, such as a fire station, cannot be the basis for unique conditions that would justify a variance.
Defendants maintain that a substantial hardship exists on the basis Locuss unique trapezoid shape and the unusual length of its frontage along Blue Hill Avenue relative to its depth back from Blue Hill Avenue. Defendants argue that setback requirements would force any building on Locus to be constructed undesirably near to the traffic and noise of Blue Hill Avenue, due to the limited depth of Locus, making Locus undesirable for exclusively residential use. Furthermore, Defendants point out that Locus slopes downward from Blue Hill Avenue to the rear. Therefore, Defendants argue that a residential structure could not be built at the rear of Locus, away from Blue Hill Avenue, without the additional expense of adding fill. Defendants argue that a commercial use of Locus, particularly a landscaping business, would not be impacted by the excessive frontage on Blue Hill Avenue and would not require extra fill to store its vehicles, trailers and a dumpster.
The Supreme Judicial Court has repeatedly stated that [n]o person has a legal right to a variance and they are to be granted sparingly. Broderick v. Bd. of Appeal of Boston 361 Mass. 472 , 479 (1972) (quoting Damaskos v. Bd. of Appeal of Boston, 359 Mass. 55 , 61 (1971)). Moreover, decisions have . . . emphasized that each one of [the] legislatively prescribed prerequisites must exist in a particular case. Barnhart v. Bd. of Appeals of Scituate, 343 Mass. 455 , 457 (1962). At the core of G.L. c. 40A, § 10 is the prerequisite of a substantial hardship. [C]onsiderations unrelated to the underlying real estate are irrelevant to the boards inquiry into the question of substantial hardship. Paulding v. Bruins, 18 Mass. App. Ct. 707 , 711 (1984).
Although Locus may have a non-traditional trapezoid shape and slopes downward toward the rear, Defendants have not shown a substantial hardship relating to the soil conditions, shape, or topography of Locus, as required by G.L. c. 40A, § 10. A trapezoid-shaped lot is not that dissimilar to a rectangular shaped lot and use variances have been denied for much more unusually-shaped parcels. Cf. Guiragossian v. Bd. of Appeals of Watertown, 21 Mass. App. Ct. 111 , 116 (1985) (denying use variance to build residences on triangle-shaped parcel in an industrial district where parcels lack of frontage rather than unique shape was the main problem). [Note 32] Neither a potential decrease in value due to noise nor an increase in building costs is a hardship that justifies a variance to allow a landscaping business. See McNeely v. Bd. of Appeal of Boston, 358 Mass. 94 , 101 (1970) (internal citations omitted) ([f]inancial hardship to the owner alone is not sufficient to establish substantial hardship and thereby justify a variance.). Additionally, the fact that Locus may be more easy to adapt to commercial use than a residential use is not a sufficient hardship. See DiRico v. Bd. of Appeals of Quincy, 341 Mass. 607 , 610 (1961) (denying use variance for commercial use in residential district even where structure could obviously be more easily converted to an office building than it could to a dwelling). Moreover, the Bylaws specifically articulate many other permissible uses of land in the District, including for religious purposes, educational purposes and municipal use, see Bylaws, § III.A.1 - 5, and allow many other non-residential uses in the District by special permit regardless of whether they are an accessory use. [Note 33] Bylaws, § III.A.7.(d). Because the Bylaws contemplate many other uses as of right in the District aside from a residential use, allowing Locus to be used only as explicitly allowed by the Bylaws is not a substantial hardship. Cf. Cavanaugh v. DiFlumera, 9 Mass. App. Ct. 396 , 402 (1980) (use variance granted for general store to operate out of residence in residential district where it was not economically feasible or likely that the locus would be developed in the future for a use permitted by the zoning ordinance or by-law). Defendants make no argument that a landscaping business is more suitable for Locus than any of the other non-residential as of right uses permitted in the District by the Bylaws and state only that a commercial use would not be impacted by the noise resulting from the large frontage on Blue Hill Avenue and that storing vehicles would not require the expense of extra filling.
Defendants argue that a substantial hardship exists because an exclusive residential use on Locus is not practical or suitable; however, as Plaintiff points out, despite the factors that Defendants claim create a substantial hardship, a residence has existed on Locus close to Blue Hill Avenue for nearly fifty years. In fact, Coulter and his family continue to live in the residence. Defendants cite the traffic and attendant noise of Blue Hill Avenue as factors that amplify the hardship from Locus trapezoidal shape, but adjacent residential lots are also subject to these same factors. [Note 34]
As a result, I find that Defendants have failed to establish that literal enforcement of the Bylaws would result in a substantial hardship based on the soil conditions, shape, or topography of Locus that do not generally affect the District. It is therefore unnecessary to determine whether Variance 3 may be granted without substantial detriment to the public good and without substantially derogating from the Bylaws purpose. Therefore, I find that Variance 3 is annulled.
As a result of the foregoing, both parties motions for summary judgment are ALLOWED in part and DENIED in part. Coulter may operate a florist business on Locus and sell produce raised both on and off the premises and Christmas trees raised off the premises pursuant to Special Permit 3, Variance 1 and Special Permit 4. The sale of trees and shrubs outlined in Condition 8 of Special Permit 4 are allowed pursuant to Special Permit 3 and Variance 1 only to the extent that such uses are part of the operation of a florist business. Conditions 2, 6, 9, 10 and 13 of Special Permit 4 remain valid only to the extent that Special Permit 4 authorizes the sale of fruits, vegetables and Christmas trees not raised on Locus as an accessory use under the Bylaws. A landscaping business may not be operated on Locus because Variance 3 has been annulled.
Judgment to enter accordingly.
[Note 1] Locus was deeded to Coulter and George J. Coulter as joint tenants. By deed dated April 29, 2004, Coulter deeded Locus to himself and his wife, Lisa Marie Coulter, as tenants by the entirety. The record does not indicate how Coulter obtained sole title to Locus from George J. Coulter, but neither party raises this as an issue.
[Note 2] Plaintiff states that Locus contains 0.85 acres and Defendants state that Locus contains 0.856 acres; the exact acreage is not important.
[Note 3] June M. Lydon is the trustee of Plaintiff and obtained title to Plaintiff Property individually with her husband by deed dated June 12, 1963, from William B. Crosby to James P. Lydon and June M. Lydon. The record does not indicate how June M. Lydon obtained sole title to Plaintiff Property from her husband, but neither party raises this as an issue.
[Note 4] The ZBAs decision to grant Special Permit 1 referenced Section III.A.7.(d) of the Bylaws as requiring a special permit to be granted for such a use. The language in Section III.A.7.(d) requiring such a special permit is still in the Bylaws.
[Note 5] The preamble to the decision stated that D. Fleming applied for a special permit on April 6, 1984 and then applied for a variance on May 3, 1984. D. Fleming requested a new special permit to continue the florist business being conducted on Locus in his name because Special Permit 1 was personal to E. Fleming who was now deceased. The preamble also stated that Variance 1 was needed because the florist business in 1984 is such that it cannot be conducted by selling only produce raised on the premises and the Applicant was advised that a variance would be necessary. The ZBA issued Special Permit 3 and Variance 1 in one decision and did not distinguish between them.
[Note 6] Special Permit 3/Variance 1 also stated that it was being granted subject to a condition on signs in Special Permit 1, except that a larger sign than what was allowed in Special Permit 1 was permissible if approved by the Board of Selectmen or other town office. The record contains no evidence as to signs located on Locus currently or in the past. The relevant condition from Special Permit 1 is as follows:
No advertising signs of any kind or flood lights shall be erected on the premises except as specifically provided by the Zoning Bylaw or as may be allowed by permit from the [ZBA] after notice to interested parties and a hearing; provided, however, that a sign not over one foot by two feet in size and bearing applicants name and the statement Flowers for Sale or similar words lettered in black on a white background may be used without such permit.
[Note 7] The Cease and Desist Order is not a part of the summary judgment record.
[Note 8] Presumably the previous owner that the ZBA referred to was not D. Fleming, who had obtained Special Permit 3 and Variance 1, but the owner immediately prior to Coulter, the BTB 919 Blue Hill Realty Trust. The record contains no evidence that said previous owner ever obtained a variance to operate a landscaping or contracting business from Locus.
[Note 9] An affidavit from June M. Lydons son, Frederick A. Lydon (Lydon), was unchallenged by Defendants and states that Coulter uses Locus to store piles of stone, gravel, mulch, loam and fertilizers; to park, store and operate trucks, plows and other machinery; to maintain a sixty-yard dumpster on Locus; and to maintain a portable toilet on Locus.
[Note 10] It is unclear why the ZBA allowed the continuation of the landscaping business when it did not appear to have previously authorized by variance a landscaping business.
[Note 11] The florist business was allowed to operate seven days a week, 8:00 A.M. to 6:00 P.M. with certain exceptions for holiday seasons. The landscape business was not allowed to operate on Sundays. The owner of the landscape and florist business was required to reside with his family and maintain his primary residence at Locus. No more than two pick up trucks, two dump trucks and two trailers could be located and stored on Locus; the trailers had to be stored in sheds and the trucks and snowplow blades had to be stored to the rear of the dwelling on Locus. No other business could be operated from Locus other than the landscape business and the florist business.
[Note 12] The 1996 Modification stated that the ZBAs decisions on Special Permit 3 and Variances 1 and 2 were incorporated by reference in this decision.
[Note 13] The Application states that Coulter had operated Coulter Landscaping from Locus since 1994 under a Special Permit issued on or about the same year. The Application further states that [t]he expiration of said permit in 1999 went unnoticed by the Coulter family. Although Coulter did not explicitly state that he requested a new special permit or variance to continue operating a landscaping business, the Application did state that a special permit was requested to renew the lapsed Variance 2, which explicitly allowed a landscaping business on Locus.
[Note 14] Although Special Permit 4 did not explicitly state that a landscaping business was permitted on Locus, in issuing Special Permit 4 to renew the lapsed Variance 2 as modified by the 1996 Modification (which allowed a landscaping business), the ZBA essentially allowed the continued operation of a landscaping business on Locus. Additionally, Condition 4 of Special Permit 4 did impliedly state that the hours of operation of the landscaping business would remain as previously approved by the ZBA.
[Note 15] The only difference is that Variance 3 allows for a sixty yard dumpster to be maintained on Locus and Special Permit 4 allows for a forty yard dumpster to be maintained.
[Note 16] See supra footnote 5. It appears that a special permit rather than a variance would be required for the sale of produce not raised on the premises if part of a commercial greenhouse. See Bylaws, III.B.1.(d). (the sale of produce not raised on the premises is not an accessory use unless, in the case of a commercial greenhouse maintained on any lot of less than five acres established and doing a non-conforming business, a special permit is granted by the [ZBA] . . . .). The record, however, contains no evidence as to when this provision was enacted and even if the ZBA may have been confused as to whether a special permit or variance was needed, the ZBA issued Special Permit 3 and Variance 1 in one decision without distinguishing between them.
[Note 17] It is unclear why the florist business was authorized to continue when Special Permit 3 and Variance 1 remained valid and continue to remain valid.
[Note 18] Section III.A.7 of the Bylaws lists uses authorized by permit and does not use the term special permit. Section XI.C.1 of the Bylaws outlines the requirements for special permits and other permits; the requirements for other permits are the same as for special permits and, thus there is no difference between them. As a result, this court shall use the term special permit to refer also to other permits.
[Note 19] The Town may wish to consider changing wording of the Bylaws to clarify the meaning of produce and agricultural use.
[Note 20] Even under the expansive construction of the term produce, Christmas trees would not be considered produce because Section III.A.7(d) creates a separate rule for Christmas trees, see supra.
[Note 21] The ZBA essentially remedied this by including the same provisions in Variance 3. See discussion, infra.
[Note 22] Condition 8 allows the sale and storing of shrubs and trees. Because the Bylaws appear to construe produce expansively, trees and shrubs raised on Locus from a greenhouse or nursery or raised off Locus would be considered produce as part of a florist business and would be allowed pursuant to Special Permit 3 and Variance 1. Trees and shrubs raised on Locus but not from a greenhouse or nursery would be saleable as of right.
[Note 23] Regular trees mentioned in Condition 8 of Special Permit 4 would be considered produce because they would be sold live; Christmas trees would not be considered produce because they are already cut when sold and the Bylaws mention them separately from produce.
[Note 24] See supra footnote 16.
[Note 25] By stating that previous decisions were incorporated by reference, the ZBA presumably meant that the findings in these decisions, not the actual special permits and variances themselves, were incorporated into Special Permit 4.
[Note 26] The history and use of Locus, the overwhelming support of local residents contrasted to one opposition and the current level of traffic near Locus are all sufficient evidence to also support a conclusion that allowing the sale of fruits and vegetables not raised on the premises is not detrimental to a residential neighborhood.
[Note 27] Presumably in support of its argument that Special Permit 4 is substantially detrimental to the public good, Plaintiff attaches to Lydons affidavit copies of two unsworn letters from real estate brokers that are filled with hearsay of reports to them by potential buyers that such buyers would not be interested in purchasing Plaintiff Property because of noise related to traffic and trucks and the presence of porta-potties. Massachusetts Rule of Civil Procedure 56(e) provides that on summary judgment,
[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. (emphasis added)
Plaintiff has not argued that these unsworn letters are admissible under an exception to the hearsay rule and the letters are not sworn or certified. Therefore, they are inadmissible on summary judgment. Even if the letters were admissible, Special Permit 4 specifically prohibits portable toilets on Locus. Additionally, Plaintiff Propertys location abutting Locus near Blue Hill Avenue means that Plaintiff Property is also subject to the same commercial and commuter traffic as Locus. Furthermore, the letters raise no issues about the sale of fruits, vegetables and Christmas trees not raised on Locus, which is the only aspect of Special Permit 4 that is at issue.
[Note 28] Other uses that need not be an accessory use but require a special permit are private clubs not conducted for profit; cemeteries not conducted for profit; garaging or maintaining more than five automobiles when accessory to a dwelling, charitable or philanthropic use not conducted for profit (including hospitals or sanitariums), riding stables, public utility or communications buildings. Bylaws, § III.A.7.(d).
[Note 29] In any event, Special Permit 4 expired on April 21, 2012.
[Note 30] Variance 3 is a use variance. The Bylaws do not distinguish between the requirements for a use variance and a dimensional variance and do not contain any other specific requirements for either type of variance.
[Note 31] Neither party has made arguments pursuant to G. L. c. 40A, § 10 on the basis of soil conditions.
[Note 32] Where variances have been granted based on shape, the parcels shape has been highly unusual. See e.g. Paulding, 18 Mass. App. Ct. at 711 (upholding dimensional variance from frontage and width requirements for pork chop-shaped lot).
[Note 33] See supra footnote 27.
[Note 34] On the basis of Marashlian v. Zoning Board of Appeals of Newburyport, 421 Mass. 719 , 726 (1996), Defendants rightly argue that a property need not be virtually unusable to justify a variance. In Marashlian, the plaintiffs argued that a proposed hotel site could be used instead for a restaurant, retail space, or parking. Id. The court found that these uses would not be economically feasible because of the number of competing businesses existing in the area. Id. Under the circumstances in Marashlian, not economically feasible presumably means unable to operate as a business, either because expenses would exceed income or because investment capital would be unobtainable. In other words, the denial of a variance in Marashlian would threaten the proposed hotels existence, identity, or purpose. Such a consideration carries little weight in the case at bar, which concerns residential property; the other houses in the neighborhood are not going to put a house on Locus out of business. Furthermore, even though a variance was allowed in spite of alternative uses, Marashlian is a narrow exception.