MISC 09-414558

May 9, 2012

Sands, J.



Plaintiff, Stuart Miller, filed his unverified Complaint (09 MISC 414558) ("Case 1") on October 20, 2009, pursuant to the provisions of G. L. c. 40A § 17, appealing a decision of Defendant Haverhill Zoning Board of Appeals (the "ZBA") which upheld a decision of Defendant Haverhill Building Inspector (the "Building Inspector") relative to the allowance of the accessory use of a building (the "Barn") on property owned by Defendant James H. Graham ("Graham") and located at 669 Kenoza Street, Haverhill, MA ("Defendant Property"). On November 27, 2009, Graham filed his Response to Complaint. On December 9, 2009, a case management conference was held and the ZBA and the Building Inspector filed their Answer and Submission of the Administrative Record.

Plaintiff filed his unverified Complaint (11 MISC 444621) ("Case 2") on January 18, 2011, pursuant to the provisions of G.L. c. 40A, § 17, appealing a decision of the ZBA, dated December 29, 2010, which upheld a decision of the Building Inspector relative to the allowance of an alleged side yard setback violation for the Barn. A case management conference for this case was held on February 15, 2011, at which time the two cases were consolidated. On February 14, 2011, Graham filed a Motion to Dismiss Case 2, together with supporting memorandum and Affidavit of Donald F. Borenstein, Esq. Plaintiff filed his Opposition to the Motion to Dismiss on June 1, 2011, together with Affidavits of Stuart L. Miller, Jr. and Kelley A. Jordan-Price, Esq., and Appendix.

Plaintiff filed his Motion for Summary Judgment on October 26, 2011, together with supporting memorandum, Statement of Material Facts, and Appendix. On December 16, 2011, Graham filed his Cross-Motion for Summary Judgment, together with supporting memorandum, Opposition to Plaintiff's motion, Statement of Material Facts, and Affidavits of James H. Graham and Donald Borenstein (second). [Note 1] Plaintiff filed his Opposition to Cross-Motion on January 6, 2012, Reply Brief, and Affidavits of Kelley Jordan-Price (second), Thomas M. Cunningham, P. E. (the "Cunningham Affidavit"), and William F. Curley, Jr. (certified real estate appraiser) (the "Curley Affidavit"). On January 11, 2012, Graham filed his Motion to Strike the Cunningham Affidavit and the Curley Affidavit. A hearing was held on all motions on January 11, 2012. With permission of this court Graham filed a Supplementary Letter dated February 23, 2012, and at that time the matter was taken under advisement.

"Summary judgment is granted where there are no issues of genuine material fact and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-44 (2002); Cassesso v. Commr. of Correct., 390 Mass. 419 , 422 (1983); Mass. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court may consider pleadings, depositions, affidavits and admissions on file. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 550 (1976); Mass. R. Civ. P. 56(c). Whether a fact is material is determined by the substantive law, and an adverse party to the motion may not manufacture disputes by use of conclusory factual assertions. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648.

When considering a motion to dismiss, "the allegations in the complaint are to be taken as true," DiNitto v. Town of Pepperell, 77 Mass. App. Ct. 247 , 249 (2010) (citing Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387 , 388 (1975)); Nguyen v. University of Massachusetts, 66 Mass. App. Ct. 276 , 277 (2006). A motion to dismiss should only be granted where the movant "[shows] to a certainty" that the plaintiff "[is] entitled to no relief under any state of [the] facts." DiNitto, 77 Mass. App. Ct. at 249 (quoting Sher v. Desmond, 70 Mass. App. Ct. 270 , 282 (2007)).

I find the following material facts are not in dispute:

1. Graham purchased Defendant Property, which contains 6.25 acres, by deed dated June 16, 2005. Defendant Property contains a three bedroom ranch-style residence built in 1970. [Note 2] Defendant Property is located in the Special Conservation ("SC") zoning district, as designated by the City of Haverhill Zoning Ordinance (the "Ordinance").

2. Plaintiff purchased property that abuts Defendant Property on Kenoza Street, Haverhill, MA ("Plaintiff Property"), which contains 5.64 acres, by deed dated December 1, 2005. Plaintiff does not reside, nor are there any structures, at Plaintiff Property.

3. In April 2006 Graham applied for a building permit, from the Building Inspector, to construct a barn on Defendant Property. The application stated "[c]onstruction of 40 x 60 Barn to be used for unheated storage." The application did not contain any plans or drawings. On April 25, 2006, the Building Inspector issued a building permit to construct a 40 x 60 barn, thirty-six feet in height, to be used for unheated storage ("Building Permit 1"). The Building Permit stated that "[t]his permit good for 6 months only." The Barn was not constructed during the six month period.

4. At some point prior to January 2007, Graham cleared a portion of Defendant Property and poured a foundation for a 40 x 60 structure. Though Graham had been issued the Building Permit, he had not applied for and was not issued a foundation permit.

5. After the foundation had been poured Graham retained Laurence H. Ogden, a structural engineer, who prepared construction plans for the Barn dated January 15, 2007, submitted to the Building Inspector in December 2010, [Note 3] showing a two-floor structure, to be constructed with steel beams, and totaling 4,800 square feet.

6. The Building Inspector issued Graham a second Building Permit on July 9, 2009 ("Building Permit 2"), which amended the allowed height of the Barn from thirty-six feet, as allowed under the first Building Permit, to thirty-five feet. The construction was completed in December 2010.

7. Currently the Barn is used for parking and maintenance of personal automobiles and recreational and utility equipment (ATVs and tractors). As many as two unregistered cars, two ATVs, and three tractors are present in the Barn at any given time. The maintenance of the automobiles also includes the hobby of restoring classic cars, and all tools, parts, and machinery related to this use are kept in the Barn. The Barn is also used for storage and maintenance of equipment related to personal agricultural and forestry uses of Defendant Property for fruit and nut trees, berry bushes, and firewood harvesting. The second floor of the Barn is used for household storage and storage of items used for purposes allowed under the Ordinance.

8. In anticipation of building a house, Plaintiff began removing trees on Plaintiff Property sometime in 2006. In May 2007, Plaintiff arranged for portions of Plaintiff Property to be graded. Plaintiff had a survey plan prepared by Jim Troupes, dated November 25, 2008. The plan was revised on December 14, 2009 to show the location of the Barn relative to Plaintiff Property, indicating that the Barn was situated twenty-two feet from Plaintiff's side yard lot line.

9. Plaintiff sent a letter to the Building Inspector dated March 20, 2009, requesting the issuance of a stop work order, relative to the construction of the Barn, citing zoning violations relating to use and dimensional requirements. Specifically, Plaintiff mentioned: 1. The Ordinance limits the height of structures in SC zoning districts to thirty-five feet, but the Building Permit permitted Graham to build the Barn to a height of thirty-six feet; 2. Storage of multiple old/junk automobiles in the Barn was not a permitted use under the Ordinance; 3. The uses, in general, Graham was engaging in within the Barn were not permitted accessary uses to the principle use of Defendant Property as a residence; 4. The Barn had not been inspected by the Building Inspector to assure its conformity with applicable requirements of the Ordinance; and 5. That Graham was unlawfully using a wood-burning stove to heat the Barn.

10. By letter dated June 4, 2009, the Building Inspector responded, allowing certain requests but denying others ("Building Inspector Decision 1"). Specifically, the Building Inspector replied: 1. Graham's use of the Barn was a proper accessory use, as an agricultural use; 2. That he (the Building Inspector) had not been requested to make an inspection of the Barn; 3. That it was error to have issued the Building Permit for a thirty-six foot in height structure; [Note 4] 4. That there was no evidence as of yet of auto repair being done on the property, and; 5. That Graham was already under a Cease & Desist Order preventing the use of a wood-burning stove until he received the proper permits. 11. On July 2, 2009, Plaintiff appealed Building Inspector Decision 1 to the ZBA, arguing that the Barn was not a proper accessory structure for the primary use of Defendant Property, which is residential, and recited the same concerns expressed to the Building Inspector from the March 20, 2009 enforcement request, supra.

12. On September 16, 2009, the ZBA denied Plaintiff's appeal ("ZBA Decision 1"), and upheld the determination of the Building Inspector. [Note 5]

13. Plaintiff filed a second letter with the Building Inspector dated August 26, 2010, alleging that the Barn was dimensionally non-compliant relative to the sideline setback requirements of the Ordinance.

14. By latter dated September 9, 2010, the Building Inspector denied Plaintiff's request for zoning enforcement ("Building Inspector Decision 2"). Specifically, the Building Inspector determined: 1. He could not make a determination as to dimensional violations because no "as-built" plan had been submitted to his office showing the location of the Barn, and 2. He interpreted the Ordinance as requiring only a five foot sideline set-back for detached buildings.

15. Plaintiff appealed Building Inspector Decision 2 to the ZBA on October 6, 2010.

16. The ZBA denied Plaintiff's appeal by decision dated December 29, 2010 ("ZBA Decision 2"). ZBA Decision 2 rested upon: 1. The absence of documentation at the appeal hearing showing the sideline setback distance calculation, and 2. Deference to the Building Inspector and his interpretation of the required sideline setback of the Barn.


I must first address Graham's Motion to Strike the Cunningham Affidavit and Curley Affidavit. Graham argues that the two affidavits were received less than forty-eight hours prior to the oral argument, and are thus detrimental to Graham's interest in not giving Graham time to respond. Graham also argues that the Cunningham Affidavit is based on speculation and did not result from Cunningham's knowledge or inspection of Defendant Property. While it is true that the Cunningham Affidavit and the Curley Affidavit were filed on January 6, 2012, shortly before the summary judgment hearing on January 11, 2012, they were filed within the time frame agreed to by both parties in the Assented to Motion to Amend Summary Judgment Briefing Schedule, filed September 30, 2011. The briefing schedule only allowed several days between the final brief and the oral argument. Graham, at the oral argument, requested additional time to file a response if the affidavits were to be allowed. This court allowed Graham to file a response to Plaintiff's Reply brief, and Graham filed said brief on February 23, 2012. Thus, the Cunningham Affidavit and the Curly Affidavit were properly filed in the assented to time for briefing, and Graham was allowed appropriate time to respond. As a result of the foregoing, I find that the Cunningham Affidavit and Curly Affidavit were properly filed with this court and, after inspection, are not based purely on speculation. Therefore, this court DENIES Graham's Motion to Strike.

There are a number of issues in this case. Graham has filed a Motion to Dismiss Case 2, which must be decided first. Graham has also raised the issue of Plaintiff's standing in both cases. Finally, Plaintiff challenges the validity of the two ZBA decisions. I shall discuss each of these issues in turn.

Motion to Dismiss.

Graham argues, pursuant to Mass. R. Civ. P. 12(b)(6), that the Complaint in Case 2 fails to state a claim upon which relief can be granted, and, pursuant to Mass. R. Civ. P. 12(b)(1), that this court lacks subject matter jurisdiction of Case 2. With respect to subject matter jurisdiction, Graham contends that Plaintiff did not file his appeal of Building Permit 1 for more than four years (the filing of the appeal of Building Inspector Decision 2 on August 26, 2010), and cites Gallivan v. Zoning Board of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008). [Note 6] Gallivan states that "a party with adequate notice of an order or decision that violates a zoning provision must appeal that order or decision to the appropriate permit granting authority within the thirty-day period allotted for such an appeal." Id. at 857. The thirty day appeal period referenced is provided pursuant to both G. L. c. 40A § 8, which states that "[a]n appeal to the permit granting authority . . . may be taken by any person . . . aggrieved by an order or decision of the [Building Inspector] in violation of any provision of this chapter or any ordinance or by-law adopted thereunder," and G. L. c. 40A § 15, which states that "[a]ny appeal under section eight to a permit granting authority shall be taken within thirty days from the date of the order or decision which is being appealed." Gallivan, however, is not controlling in this case. There, the plaintiff, a direct abutter with full knowledge of the issuance of a building permit, in violation of the applicable by-law dimensional requirements, had a fair opportunity to appeal its issuance within the statutorily prescribed thirty-day time period. However, instead of appealing the issuance of the building permit in a timely fashion, the plaintiff chose to by-pass the G. L. c. 40A § 8 remedy and, instead, brought suit pursuant to G. L. c. 40A § 7. [Note 7] The Appeals Court held, "[w]here adequate notice of such order or decision exists, a person may not lawfully bypass that remedy and subsequently litigate the question by means of a request for enforcement under G.L. c. 40A, § 7." Id. Here, the parties do not claim, and there is no suggestion to conclude, that Plaintiff had any knowledge that Building Permit 1 had issued on April 25, 2006. Graham even acknowledges, in his Motion to Dismiss and through the Affidavit of Donald F. Borenstein, Esq., that Plaintiff first became aware of the intended construction and location of the Barn in April 2007 - a year after the Building Permit had been issued. Moreover, the plaintiff in Gallivan knew not only that the building permit had issued, but also that it permitted a dimensional violation of the local bylaw. Here, there is evidence that, though Plaintiff knew in April 2007 that the Barn was to be constructed, Plaintiff did not realize there was a dimensional violation as to the side yard setback until December 14, 2009, when Plaintiff had a survey of the area completed in anticipation of constructing a residence on Plaintiff Property. Thus, unlike the plaintiff in Gallivan, who had actual knowledge of the issuance of a building permit, in violation of the bylaw, and chose not to timely appeal its issuance to the local permit granting authority under G. L. c. 40A § 8, here, Plaintiff had no such "adequate notice" of the Building Permit(s issuance, or the dimensional violation, and no opportunity to appeal to the ZBA within the thirty-day time period. Thus, Plaintiff properly and timely took advantage of his rights pursuant to G. L. c. 40A § 7. As a result of the foregoing, I find that this court has subject matter jurisdiction pursuant to G. L. c. 40A § 7, relative to the appeal of ZBA Decision 2.

Graham also contends that the appeal of ZBA Decision 2 is barred under the doctrine of res judicata because it involves the same issues as ZBA Decision 1. The term res judicata encompasses both claim preclusion and issue preclusion. Kobrin v. Board of Registration in Medicine, 444 Mass. 837 , 843 (2005) (citing Heacock v. Heacock, 402 Mass. 21 , 23 n. 2 (1988)). "Claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and prevents litigation on all matters that were or could have been adjudicated in the action." Kobrin, 444 Mass. at 843 (quoting O'Neill v. City Manager of Cambridge, 428 Mass. 257 , 259 (1998)). Issue preclusion "prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies." Heacock, 402 Mass. at 23 n. 2. A successful assertion of claim preclusion requires three elements be found: "(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits." DeLuz v. Dept. of Correct., 434 Mass. 40 , 45 (2001) (quoting Franklin v. North Weymouth Coop. Bank, 283 Mass. 275 , 280 (1933)). It is undisputed that Plaintiff and Graham were parties to both ZBA Decision 1 and ZBA Decision 2. Decisions of local zoning boards can, in some circumstances, be considered "final" judgments on the merits. [Note 8] However, there is not an identical cause of action between the two ZBA decisions. Though both decisions relate to the Barn located at Defendant Property, ZBA Decision 1 considered only the use of the Barn and whether such use was allowed under the Ordinance, whereby ZBA Decision 2 was decided relative to the dimensional conformity of the Barn - two independent causes of action. [Note 9] Thus, I find that ZBA Decision 2 is not precluded from appeal under the doctrine of res judicata.

As a result of the foregoing, I find that this court has subject matter jurisdiction over ZBA Decision 2. Consequently, I DENY Graham's Motion to Dismiss.


G. L. c. 40A § 17, in relevant part, states "Any person aggrieved by a decision of the board of appeals or any special permit granting authority...may appeal to the land court department...[w]ithin such twenty days." Plaintiff must be categorized as a "person aggrieved" or the case must be dismissed, as he would be without standing and this court without jurisdiction. See Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 202-203 (1957); Carr v. Board of Appeals of Medford, 334 Mass. 77 , 79 (1956). Standing is a jurisdictional issue, and it is immaterial when it is raised by the parties or considered by the court. Marotta, 336 Mass. at 203; Ensign v. Faxon, 224 Mass. 145 , 151-152 (1916). An "aggrieved person" is one who will suffer a violation of a private right, property interest, or legal interest. See Marashlian v. Zoning Board of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); See also Harvard Square Defense Fund, Inc. v. Planning Board of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989). However, if Plaintiff qualifies as a "Part[y] in interest," who would be entitled to notice under G. L. c. 40A § 11, he will have a rebuttable statutory presumption of standing - direct abutters are considered parties in interest. 81 Spooner Road, LLC. v. Zoning Board of Appeals of Brookline, 78 Mass. App. Ct. 223 , 241 (2010); Standerwick v. Zoning Board of Appeals of Andover, 447 Mass. 20 , 33 (2006). If the presumption of standing is properly rebutted by Graham then Plaintiff must prove standing, "which requires that the 'plaintiff establish - by direct facts and not by speculative personal opinion - that his injury is special and different from the concerns of the rest of the community.'" Standerwick, 447 Mass. at 33 (citing Barvenik v. Board of Alderman of Newton, 33 Mass. App. Ct. 129 , 132 (1992)). Plaintiff is not required to prove by a preponderance of the evidence that his claims of different and special injury will prevail on the merits but rather, he must put forth "credible evidence" that substantiates his claims. Central Street, LLC. v. Zoning Board of Appeals of Hudson, 69 Mass. App. Ct. 487 , 492 (2007) (citing Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005)). Plaintiff's evidence will be considered "credible" if it "provide[s] specific factual support for each of the claims of particularized injury the plaintiff has made ... [and is] of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action." Id. Finally, it is particularly important to note that the rights or interests Plaintiff claims are being injured must be ones that G. L. c. 40A and the Ordinance are intended to protect. Standerwick, 447 Mass. at 27-28 (citing Circle Lounge & Grille, Inc. v. Board of Appeals of Boston, 324 Mass. 427 , 431 (1949)).

Plaintiff cites harms related to: 1. A wood-burning furnace located on Defendant Property; 2. The Barn's alleged use and dimensional noncompliance with the Ordinance; 3. The Barn being out of character with a single-family neighborhood; 4. The Barn reducing natural light, being a fire hazard, a source of noise, a potential source of insects, and an environmental concern; 5. The Barn causing erosion, drainage and topographical problems on Plaintiff Property; and 6. The Barn causing diminution in value of Plaintiff Property.

Graham initially argued that Plaintiff had not provided any affidavits or other evidence relative to the alleged harms other than Plaintiff's own affidavit, that the harms are speculative and beyond the scope of knowledge of Plaintiff, that the harms are not recognized harms, are not related to a zoning-related interest, are too generalized and not personal to Plaintiff, or are not related to the Barn. These arguments, coupled with Plaintiff's lone affidavit, effectively rebutted Plaintiff's statutory presumption of standing. Subsequently, Plaintiff filed the Cunningham Affidavit and the Curley Affidavit. The Cunningham Affidavit provided evidence that the Barn has caused increased storm water runoff and drainage problems which affected Plaintiff Property. The Curley Affidavit provided evidence that the Barn has caused an 18% diminution in value to Plaintiff Property based on the size of the Barn and its proximity to Plaintiff Property, such size causing decrease in natural light. Graham argues that these affidavits were not timely filed with the court or with his counsel, giving him insufficient time to respond. However, as noted supra, these affidavits were filed within the extended time requested for summary judgment briefing and Graham was given more than adequate time to respond before the court took the case under advisement. Graham also contends that the claims made in both affidavits are unsubstantiated and speculative. After examination, both affidavits appear to be based upon the expert knowledge of the affiants, based upon first-hand inspection of Plaintiff Property and Defendant Property, and Graham offers no rebuttal affidavits to dispute these claims. Thus, Plaintiff has presented credible evidence to support his claims of harm, meeting his burden of proof as was required by Graham's rebuttal of Plaintiff's presumption of standing. [Note 10] Based on the foregoing, I find that Plaintiff has standing to pursue this matter.

Barn Use Issues (ZBA Decision 1)

Graham argues, and the ZBA decided in ZBA Decision 1, that the Barn is an allowed accessory use under the Ordinance, based on agricultural use. I shall examine the Barn use issue as both an accessory use and an agricultural use.

a. Accessory Uses

Ordinance section 255-6 [Note 11] defines "Use, Accessory" as:

A use incidental and subordinate to the principal use of a structure or lot or a use not the principal use which is located on the same lot as the principal structure. "Accessory use" by area shall be interpreted not to exceed 40% of the area of the total use of the structure or lot on which it is located.

This definition is atypical. It seems to define an accessory use on the one hand as "incidental and subordinate to the principal use of a structure or lot..." - a common definition among zoning bylaws. However, the definition continues to state "...or a use not the principal use which is located on the same lot as the principal structure." This phrase appears to indicate that an accessory use may properly be any use of a structure or lot, regardless of its relationship to the primary purpose of the structure or lot. [Note 12] But see Ordinance section 255-13, entitled "Applicability of use regulations," which states:

Except as provided in the Zoning Act or in this chapter, no building or land shall be used except for the purposes permitted in the district as described in this Article. Any use not listed shall be construed to be prohibited.

This provision of the Ordinance appears to temper the breadth of what may be classified as an accessory use. Though a proper accessory use may still be a use other than one "incidental and subordinate to the principle use," such uses are not permitted within a given zoning district unless they are described as such in the Ordinance. Read together, a lawful accessory use may be a use "incidental and subordinate to the principle use of a structure or lot" and, if a particular use does not meet such description, it may still be a proper accessory use if it is described and permitted in such zoning district elsewhere in the Ordinance. This concept shall be discussed further, infra.

Plaintiff contends that the Barn is not an incidental and subordinate structure because of its size and use. Plaintiff argues that the primary use of Defendant Property is for a single family residence, and that Graham's activities within the Barn, as well as the size of the Barn itself (thirty-five feet tall with two stories and approximately 4,800 square feet of floor space), are not incidental and subordinate to the single family use and, therefore, Graham's use of the Barn is not a proper accessory use. Under Massachusetts case law, an accessory use must be "customarily incidental" to the primary use. Town of Harvard v. Maxant, 360 Mass. 432 , 438-440 (1971). If, as here, the primary use of Defendant Property is a single family residence, the accessory use must be "either one that is necessary or commonly to be expected" with such a residence. Paolo v. Town of Seekonk, 11 Mass. L. Rptr. 767 (2000), (citing Gallagher v. Board of Appeals of Acton, 44 Mass. App. 906, 907 (1997)). The Barn is currently being used to further Graham's hobby of automotive restoration, to store seasonal household items such as a lawn tractor and ATV, storage and maintenance of agricultural equipment related to fruit and nut trees and berry bushes on Defendant Property, [Note 13] and the parking of household vehicles. Graham argues that the Barn should be considered an accessory structure because the purposes being made of the Barn are customarily incidental to the primary use of Defendant Property as a residence.

Accessory structures are not expressly limited by size requirements, other than height, under the Ordinance. [Note 14] Thus, the Barn's footprint and floor area are not relevant to the inquiry of whether it is a permissible accessory structure (unless the size of the structure would infringe upon some other provision in the Ordinance). What is relevant are the uses being made of the Barn. For support of his claim, Plaintiff cites Gallagher v. Board of Appeals of Acton, 44 Mass. App. Ct. 906 (1997). In Gallagher, the plaintiff wanted to construct a 2,600 square foot addition onto a 900 square foot house, thereby creating four new rental units out of the addition. Id. at 906, 907. The building inspector refused to issue a building permit for the project and the zoning board upheld that decision. Id. The applicable zoning bylaw permitted, as an accessory use, "The renting of rooms or boarding for not more than four persons..." Id. The Plaintiff's argument was that the bylaw made renting of rooms to not more than four persons an accessory use to a single-family residence. Id. The court disagreed and upheld the decision of the zoning board, stating "What Gallagher proposes is neither subordinate to the primary purpose nor attendant upon it. The primary purpose of 9 Main Street is a singlefamily residence of modest size. The proposed addition is so much bigger (as noted, almost three times as big) than the existing house that it cannot be described as subordinate and minor in relation to the allowed primary use." Much like the plaintiff in Gallagher, our Plaintiff claims that the Barn, being so large (4,800 square feet, 35 feet in height), does not fall within the Ordinance's concept of accessory use. I disagree. The factual dissimilarities between tripling the size of a residential structure, converting the use from a single-family residence to a multi-family rental, all done within a single-family residential zone are, alone, sufficiently different than building a two-story detached New-England style barn on a six and a quarter acre lot in a special conservation zoning district located in a rural area behind a 3,900 square foot house. Moreover, it is clear to this court that Graham's activities within the Barn are customarily incidental to the primary use of Defendant Property, whereas converting a single-family residence into a multi-family rental, as in Gallagher, is far from the traditional understanding of incidental and subordinate use. Just as one would use a toolshed, greenhouse, or private garage, Graham uses the Barn. Restoring classic cars as a hobby with his son, storing seasonal household items, and keeping and maintaining lawn and yard equipment is absolutely incidental and subordinate to the primary use of Defendant Property as a residence. These activities are commonly practiced in accessory buildings and are naturally associated with a single-family residence, especially a lot which is 6.5 acres in size.

As discussed supra, the Ordinance's definition of "Use, Accessory" is uncharacteristically broad in that it permits accessory uses that are both incidental and subordinate to the principle use and also "use not the principle use which is located on the same lot..." Also as discussed, supra, it appears that this language means that if a particular use can not be characterized as incidental and subordinate, it may still be a proper accessory use if it is described and permitted for the same zoning district elsewhere in the Ordinance. Though this decision is based solely on the finding that the uses of the Barn are permitted as incidental and subordinate to the primary residential use of Defendant Property, it is worth noting that Ordinance Table 1 does specifically enumerate a number of uses permitted as of right in the SC zoning district. Therefore, even if something may not be easily classified as "incidental and subordinate," if it is enumerated in Table 1 (or another provision of the Ordinance) it may still be a permitted use when understood in the light of the Ordinance's expansive accessory use definition. Ordinance Table 1, titled "Table of Use and Parking Regulations," enumerates permitted uses for each zoning district. For the SC district, applicable uses permitted as of right are:

Accessory Uses

- Accessory building such as a private garage, playhouse, greenhouse, toolshed or similar accessory structures, subject to provisions of §§ 255-26 and 255-27. [Note 15]

- Accessory private garage for not more than 3 noncommercial motor vehicles and, except on a farm not more than 2-ton rates or less in size commercial motor vehicles, subject to the provisions of §§ 255-26 and 255-27.

The list of structures described in Table 1, under "Accessory Uses," indicates that the use of accessory structures may entail agricultural, reparative, automotive, or hobby like activities - as these types of activities would naturally be found in "a private garage, playhouse, greenhouse, toolshed, or similar accessory structures." The phrase "or similar accessory structures" is evidence that the structures which are listed in the provision are not the only permissible accessory structures, i.e. that the list is not exhaustive, and that structures which are similar in scope and function will also be permitted as of right.

The Barn has characteristics of a "private garage" because the family parks their cars in the Barn and because Graham engages in his hobby of automotive restoration in the Barn, as one would, he claims, perform in any private garage. The Barn is similar to a "greenhouse" and "toolshed" because equipment and materials relative to maintenance of the lawn, trees, and bushes on Defendant Property are stored there. Moreover, there are a number of agricultural uses enumerated as permissible accessory uses under the table, including horticulture and floriculture.

As a result of the foregoing, I find that the Barn is a permitted accessory structure under the Ordinance, the uses Graham engages in within the Barn are proper accessory uses as they are incidental and subordinate to the primary use of the property as a residence, and as a result I uphold ZBA Decision 1 as it relates to the same. [Note 16]

b. Agricultural Use

The ZBA decided in ZBA Decision 1 that the Barn is an allowed accessory use under the Ordinance, based on agricultural use. [Note 17] Like the accessory uses, supra, Ordinance Table 1 permits, as of right, in an SC zoning district:


- Agriculture, horticulture and floriculture, except a greenhouse or stand for retail sale.

- Greenhouse or stand for wholesale and retail sale of agricultural or farm products raised primarily on the same premises.

Agricultural use is not defined in the Ordinance and therefore we must impart upon the term its usual and accepted meaning. Case law instructs that the term agriculture be interpreted broadly. See Town of Tisbury v. Martha's Vineyard Commission, 27 Mass. App. Ct. 1204 , 1205 (1989) (citing Lincoln v. Murphy, 314 Mass. 16 , 18-20 (1943)). Blacks Law Dictionary defines "agriculture" as "the science or art of cultivating soil, harvesting crops and raising livestock," and notes that agriculture is a more expansive term than farming - that agriculture "includes gardening, horticulture, viticulture, dairying, poultry, bee raising, and ranching." Blacks Law Dictionary, 69 (7th ed. 1999) (citing 3 Am. Jur. 2d Agriculture § 1, at 934-935 (1986)). However, as the Barn and all of its current uses are permitted as of right as uses customarily incidental accessory to the residence, I need not determine whether any of the uses meet the classification of an agricultural use. Though some of Graham's activities in the Barn and on Defendant Property in general might be properly classified as agricultural, such as storing a small tractor as well as keeping items related to the maintenance of fruit and nut trees on the property, currently such uses are also properly incidental and subordinate to the primary use as a residence, and therefore we need not categorize them as agricultural at this time, as they are proper accessory uses. I note that greater and more substantial use of the property for agricultural purposes in the future may demand that such uses be reclassified as agricultural and assessed under such standard.

Dimensional Issues (ZBA Decision 2)

Table 2 of the Ordinance, titled "Table of Dimensional and Density Regulations," provides for a twenty-five foot side yard setback and a thirty-five foot height limit in the SC zoning district for all structures, whether accessory or primary to the property. It is undisputed that a portion of the Barn is twenty-two feet from the side-line of Plaintiff Property, in violation of the requirements found in the Table of Dimensional and Density Regulations. However, Ordinance section 255-26 provides for a five-foot side yard setback for a detached accessory buildings in certain districts, stating:

In R and C Districts, a detached accessory building shall conform to the following provisions: it shall not occupy more than 25% of the area of the rear yard; it shall not be less than 20 feet from the front street line, nor less than five feet from any other lot line or from any principal building; and it shall not exceed 20 feet in height. (Emphasis added).

The Building Inspector determined that section 255-26 was applicable to the Barn and thus only a five-foot setback was required, and in ZBA Decision 2 the ZBA deferred to the Building Inspector's interpretation of the provision. Graham argues that the Building Inspector's and the ZBA's interpretation of the Ordinance is entitled to deference in this regard. Plaintiff argues that the clear language of Ordinance section 255-26 should be interpreted as allowing the five-foot setback only in R and C zoning districts and nowhere else.

Ordinance section 255-26 specifically identifies two classes of zoning districts for which it will apply - the R and C zoning districts; the SC district is not mentioned in any way. [Note 18] The language is not vague or open to interpretation. Moreover, dimensional requirements for structures in the SC zoning district are already defined in the Ordinance's Table of Dimensional and Density Regulations, along with requirements for many other zoning districts, and require a twenty-five foot side-line setback for accessory structures and a thirty-five foot height limitation. [Note 19] Graham claims that the Building Inspector and the ZBA are entitled to great deference in the application of the Ordinance; that the nature of the SC zoning district, in which Defendant Property is located, is so similar to a residential district that the Building Inspector correctly decided to allow Ordinance section 255-26 to apply. True, that the ZBA is entitled to substantial deference in their factual findings regarding the Ordinance; however, such determinations may be overturned by a trial court, on appeal, if it is found that the decision was "based on a legally untenable ground, or [was] unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); Davis v. Zoning Board of Chatham, 52 Mass. App. Ct. 349 , 355 (2001). [Note 20]

Though it is true that the Barn's setback violation is somewhat minimal, only three feet which descends into conformity in eight to twelve feet along the side of the Barn (Graham connotes it as a "sliver"), the setback requirements of the Ordinance were clearly set out in Table 2 and Graham could have easily built the Barn in conformity with the unambiguous dimensions. The Barn is a structure clearly contemplated by the Ordinance as an accessory structure in a SC zoning district and regulated as such, thus the violation is inexcusable, even though the violation may be minor in scope, and equity does not protect the Barn no matter how innocent the mistake.

There is simply no persuasive argument Graham can make that prevents the Barn from violating the Ordinance's dimensional requirements and no amount of equity or deference permits the ZBA to exempt the Barn's violation without a variance; "an incorrect interpretation of a statute... is not entitled to deference," and it is clear to this court that the ZBA and Building Inspector's interpretation of the Ordinance is incorrect. Id. at 475 (citing Atlanticare Medical Center v. Commissioner of the Division of Medical Assistance, 439 Mass. 1 , 6 (2003)). Based upon the foregoing, I find that the Barn is in violation of the Ordinance's dimensional requirements, specifically the side-line setback requirement that an accessory structure in an SC zoning district be twenty-five feet from the side lot line. Therefore, I find that ZBA Decision 2, insofar as it is in contradiction with this opinion, is overturned as it is arbitrary and capricious. This matter shall be remanded to the ZBA for further action in this regard. [Note 21]

As a result of the foregoing, I DENY Plaintiff's Motion for Summary Judgment as it relates to the uses being made of the Barn and GRANT Graham's Cross-Motion for Summary Judgment as it relates to the same. I GRANT Plaintiff's Motion for Summary Judgment as it relates to the dimensional violations of the Barn and DENY Plaintiff's Cross-Motion for Summary Judgment as it relates to the same.

Judgment to enter accordingly.


[Note 1] Graham also filed a Motion for Site View, which was opposed by Plaintiff. This court does not usually take a site view on a summary judgment motion, as there are only supposed to be issues of law, and not of material facts, for resolution. Graham argues that this matter is not ripe for summary judgment, as there are issues of material facts.

[Note 2] The house has approximately 3,900 square feet of living space.

[Note 3] The Building Inspector did not receive any construction plans until after the Barn had been completed.

[Note 4] With the acknowledgment of this error, on July 9, 2009, the Building Inspector re-issued an amended Building Permit correcting the permitted height to thirty-five feet.

[Note 5] In Exhibit A of ZBA Decision 1, the ZBA indicates that it relied on the Building Inspector's responses at the appeal, which included the determination that Defendant Property was going to be used for agricultural purposes, specifically a tree farm.

[Note 6] Graham only raises this timeliness issue in relation to Building Permit 1 issued by the Building Inspector on April 25, 2006; not with respect to the timeliness of the appeal of Building Permit 2 issued on July 9, 2009. Thus, though Graham is arguing that Case 2 should be dismissed, it is based upon the alleged failure of Plaintiff to timely appeal the dimensional issue in Case 2, which Graham claims should have been raised on appeal from the issuance of Building Permit 1. However, even if the issuance of Building Permit 2 was at issue, Plaintiff's argument would be the same, i.e. he did not know on July 9, 2009, of the dimensional violation in Case 2.

[Note 7] G. L. c. 40A § 7, states in part,

"...if real property has been improved and used in accordance with the terms of the original building permit issued by a person duly authorized to issue such permits, no action, criminal or civil, the effect or purpose of which is to compel the abandonment, limitation or modification of the use allowed by said permit or the removal, alteration or relocation of any structure erected in reliance upon said permit by reason of any alleged violation of the provisions of this chapter, or of any ordinance or bylaw adopted thereunder, shall be maintained, unless such action, suit or proceeding is commenced and notice thereof recorded in the registry of deeds for each county or district in which the land lies within six years next after the commencement of the alleged violation of law;..."

This statute was enacted to give some recourse to parties aggrieved by a violation of the Zoning Act or a municipal by-law, who would otherwise be time barred from bringing and enforcement action under G. L. c. 40A §§ 8 and 15.

[Note 8] Many jurisdiction have recently begun applying the doctrine of claim preclusion to decisions of administrative and municipal agencies; however, there are unique exceptions in doing so that are not present in traditional res judicata determinations. See generally Restatement (Second) Judgments § 83 (1982). Specifically, where the procedures of the agency are significantly different from judicial procedures, there is considerably less chance that the administrative determination will be given preclusive effect. Id. In order for an administrative decision to carry preclusive effect the final decision must have been reached through an adjudicative proceeding. Kobrin, at 844 (citing Tuper v. North Adams Ambulance Serv., 428 Mass. 132 , 135 (1998)) (citing Stowe v. Bologna, 415 Mass. 20 , 22 (1993)). Under G. L. c. 30A § 1 (State Administrative Procedure), an "Adjudicatory Proceeding" means "a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing." I note that the ZBA hearings have a strong likelihood of qualifying as administrative proceedings. However, as ZBA Decision 2 was decided pursuant to a separate cause of action from that in ZBA Decision 1, it is unnecessary for this court to determine whether the finality of such decisions satisfies the res judicata standard.

[Note 9] Plaintiff's first request for enforcement to the Building Inspector did include a dimensional allegation, namely the height of the Barn; however, since that issue was resolved by Building Permit 2, it was not an issue appealed or decided in ZBA Decision 1. Moreover, the setback issue was not discovered until December 14, 2009, after the first request for enforcement.

[Note 10] The Cunningham Affidavit and the Curley Affidavit provide enough credible evidence of particularized harm to Plaintiff for a finding of standing. However, I note that many of Plaintiff's alleged harms are insufficient for such a finding. For instance, harm alleged from the outdoor wood burning stove does not appear to be a zoning issue, but rather a concern best suited for nuisance law. Alleged harm stemming from dimensional noncompliance, alone, is not particularized to Plaintiff, and without more evidence neither are alleged harms due to noise pollution and insect problems. I base standing solely on the alleged harms related to increased water runoff on Plaintiff Property and drainage problems therefrom, as well as diminution in the value of Plaintiff Property stemming from the size and scale of the Barn and its affect on the natural lighting of Plaintiff Property.

[Note 11] Section 255-6 is the section where the Ordinance's defined terms are located.

[Note 12] It is worth noting that this phrase also seems to indicate that other primary uses could be allowed on a lot, and nowhere in the Ordinance does it expressly restrict a lot to only one primary use, as is customary in many zoning bylaws. Traditionally, a use not incidental and subordinate to the primary use of lot would be considered a second primary use, not an accessory use, and therefore in violation of a separate bylaw provision prohibiting two primary uses, yet this does not appear to be a situation expressly precluded by the Ordinance.

[Note 13] There is no evidence that the fruit and nut trees and berry bushes are used for any commercial purposes.

[Note 14] Table 2 of the Ordinance, titled "Table of Dimensional and Density Regulations," limits the height of "[a]ny other permitted use" associated with a "1-family detached dwelling" in an SC zoning district to 35 feet and 2.5 stories in height, which the Barn meets. Ordinance Section 255-6 limits an accessory use to 40% of the lot on which it is located, which the Barn also meets.

[Note 15] Ordinance section 255-26 is titled "Detached accessory buildings" and section 255-27 is titled "Attached accessory buildings."

[Note 16] It is worth noting that though Graham's use of the Barn is a proper accessory use, these uses must still follow all applicable Ordinance regulations. For instance, though numerous vehicles may fit inside the Barn, Graham must not exceed the maximum number permitted by the applicable Ordinance provisions without being in violation of the Ordinance and subject to penalties. Since the Barn has characteristics of a private garage, and the Ordinance limits the number of noncommercial vehicles in a private garage to three, it is necessary for Graham to adhere to this provision of the Ordinance.

[Note 17] I note that Building Inspector Decision 1 and ZBA Decision 1 premise the permissible use of the Barn on the finding that it is an agricultural use. Little evidence was presented that any cognizable portion of the use of the Barn or Defendant Property can be considered agricultural. There was no evidence that a tree farm was on the property now or was planned for the future, or any other agricultural use. Therefore, the determination of this court is based on the finding that the use is a proper "accessory" use, as opposed to a proper "agricultural" use.

Moreover, the parties, including Plaintiff, focus their arguments around the accessory use issue, not the agricultural use issue. Though Plaintiff does claim that the Barn is not protected under the Dover Amendment, G. L. c. 40A § 3, because the primary use of the Graham Property is not agricultural, as required by the statute, we need not make such a determination in this case.

[Note 18] The "C" district mentioned in 255-26 references commercial districts, whereas Defendant Property's "SC" district stands for special conservation - it is not a type of commercial district.

[Note 19] Even if there was a way for this court to apply Ordinance section 255-26 so as to apply to structures in an SC zoning district, the Barn would still be in violation of other dimensional requirements in that section, namely, the height restriction. Section 255-26 may provide for a five foot side-line setback, but it also limits detached accessory structures to twenty feet in height; the Barn is thirty-five feet tall (as permitted by the Table of Dimensional and Density Regulations).

[Note 20] Graham also argues that equitable considerations should prevent this court from applying a rigid interpretation of the Ordinance, and cites to the recent case of Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 (2012). In Shirley, a mobile home park, protected by the grandfather provision in G. L. c. 40A §6, wanted to expand the number of mobile homes on the property from sixty-five to seventy-nine. Id. at 470. The expansion met all applicable board of health requirements, including lot size and setback, but the zoning board refused to issue the special permit, finding "[Wayside] did not satisfy the burden that [the] expansion will not be substantially more detrimental to the neighborhood due to the density of the expansion..." Id. at 473. The Supreme Judicial Court, in upholding the Land Court decision finding that the concerns of the zoning board were "vague, speculative, [and] unsupported by the evidence," and therefore reversing the decision of the board, determined that equity required them to forego the application of dimensional requirements under the zoning bylaw because all parties had operated under the assumption that the board of health rules governed dimensional requirements Id. at 480, 481. They stated that a minor infraction of the bylaw setback requirements need not always be enforced when there was "no suggestion that anyone participating in this confused situation acted otherwise than in good faith..." Id. at 482 (citing Marblehead v. Deery, 356 Mass. 532 , 537-538 (1969)). Shirley, however, is not controlling in this case. Unlike the parties in Shirley, here, the parties have not assumed that the Barn is in dimensional conformity with the Ordinance. To the contrary, the side-line setback is and has been a serious point of contention since Plaintiff requested enforcement of the setback requirement from the Building Inspector on August 26, 2010, which subsequently resulted in ZBA Decision 2 and Case 2 before this court. Thus, equity does not require that we "protect the reasonable expectation of the parties" because the parties have been arguing this issue for over two years, unlike in Shirley, where both parties believed that the proposed homes met all the dimensional requirements.

[Note 21] Graham may apply for a variance in order to be exempted from the side-line requirement; and the ZBA may deem the violation de minimis, as it is relatively minor (3 feet at its maximum, descending 8-12 feet along the side of the Barn until conformity is met).