JUNE M. LYDON, as TRUSTEE OF THE LYDON FAMILY TRUST vs. TOWN OF MILTON BOARD OF APPEALS, EMANUEL ALVES, VIRGINIA DONAHUE KING, and SARA HARNISH, as they are members of the BOARD, and THOMAS COULTER

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 ZBA’s 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 ZBA’s 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 plaintiff’s claim of standing,” and reversed this court’s 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. A decision of today’s date (“Land Court Decision 2”) has been issued.

In accordance with Land Court Decision 1 and Land Court Decision 2, it is:

ORDERED and ADJUDGED that the special permit granted by the ZBA on July 13, 1984 (“Special Permit 3”) and the variance granted by the ZBA on the same date (“Variance 1”) give Coulter the right to sell produce, as construed expansively by the Zoning Bylaws (the “Bylaws”) of the Town of Milton (the “Town”), raised on Locus from a greenhouse or nursery and off Locus and to operate a florist business on Locus.

ORDERED and ADJUDGED that produce raised on Locus, but not from a greenhouse or nursery, may be sold on Locus as of right.

ORDERED and ADJUDGED that Conditions 1, 4, 5 and 8 of the special permit granted by the ZBA on April 21, 2009 (“Special Permit 4”) (collectively, the “Conditions”) are invalid as they authorize by special permit uses that may be authorized only by variance. 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 1]

ORDERED and ADJUDGED 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.

ORDERED and ADJUDGED 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 a signs (see Land Court Decision 1, 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.

ORDERED and ADJUDGED 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.

ORDERED and ADJUDGED 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.

ORDERED and ADJUDGED 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 2]

ORDERED and ADJUDGED 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.

ORDERED and ADJUDGED 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 Residence A District in which Locus is found.

ORDERED and ADJUDGED that the variance granted by the ZBA on April 15, 2010 is ANNULLED.

ORDERED and ADJUDGED that 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.

By the court. (Sands, J.)