MISC 08-380468

January 30, 2012


Piper, J.


This case is an appeal, pursuant to G.L. c. 40A, § 17, from a decision (“Decision”) of the Board of Appeals of the Town of Truro (“ZBA” or “Board”), whose members are defendants. In the challenged Decision, issued by the ZBA after hearing on an administrative appeal, the Board overturned the Building Commissioner’s determination, in which he declined to take enforcement action against the locus and its owners, the Plaintiffs. [Note 1] The ZBA’s Decision concluded that the marketing and renting of the locus to tenants in a manner which promoted the locus for use in connection with well-attended social events and gatherings, primarily weddings, that the tenants would conduct at the locus, is inconsistent with and contrary to the intentions and purposes of the governing residential zoning district, because, particularly given the marketing and renting of the locus with those functions intended, the use of the locus is analogous to a hotel or inn, and constitutes a commercial use prohibited within the residential district.


This case commenced on May 14, 2008 with the filing of the complaint by the Plaintiffs. An affidavit of Notice Regarding Filing of the Complaint was filed by Plaintiffs on May 29, 2008. Neither the private or municipal defendants have answered. See G.L. c. 40A, § 17 (“If the complaint is filed by someone other than the original applicant, appellant or petitioner... no answer shall be required but an answer may be filed.”).

After initial proceedings, the case was tried to the court. Trial was held in Boston on May 19 and 20 and August 30, 2010. A court reporter, Karen Smith, was sworn to transcribe the testimony and proceedings. The following people testified at trial: Anne Fausto-Sterling, Ann Courtney, Judith Schmidt, David Kelly, Ellen Schiereck, Gloria Vigliani, and David Hoffman for the Defendants; Steven Downey, Thomas J. Wingard, Jr., Connie Nye Clark, Richard Scimone, and Stephen DiGiovanni for the Plaintiffs. The exhibits introduced into evidence are as set forth in the transcripts. At the close of the taking of evidence I suspended the trial to hear closing arguments after receipt of those transcripts, and with the benefit of posttrial briefing.

Plaintiffs and the defendants (both the non-municipal defendants (the “Private Defendants”) and the municipal defendants) filed their Proposed Findings of Fact and Rulings of Law and Posttrial Memorandum on July 23, 2010. Plaintiff then filed a Motion to Reopen Evidence on August 9, 2010 with accompanying affidavit. Private Defendants’ opposition papers were filed on August 18, 2010 with accompanying affidavits, and Plaintiffs’ Response to Private Defendant’s Opposition to Plaintiffs’ Motion to Reopen Evidence was filed on August 25, 2010.

Trial reconvened for closing arguments on August 30, 2010 at which time the Motion to Reopen Evidence came on for hearing. I denied the Motion to Reopen Evidence, which sought to exclude testimony of one of the Private Defendants, Anne Fausto-Sterling, or, alternatively, to expand the record evidence in light of her conveyance of her interest in the residential property she owned in the vicinity of the locus. Counsel for all parties agreed that Private Defendant Anne Fausto-Sterling no longer holds title to any property in the area, having conveyed all of her interest in 2 Eliantha Lane, Truro, Massachusetts by deed recorded in the Barnstable County Registry of Deeds at Book 24569, Page 296. Accordingly, I directed that Anne Fausto-Sterling be dismissed from this action because she no longer has any stake in the outcome of the litigation. Testimony given by Fausto-Sterling remains in the trial record, with the court viewing such testimony in light of her conveyance of her property and her dismissal as a party.

On all of the testimony, exhibits, stipulations, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, and the memoranda and argument of the parties, I now decide the case, making the following findings of fact and rulings of law. For the reasons given below, I find and rule that: (1) Private Defendants, or at least some of them, have standing to bring this action; and (2) the Board’s Decision overturning the Building Commissioner’s decision, and finding Plaintiffs’ marketing, renting, and use of the locus for the challenged events and gatherings to be a forbidden commercial use within a residential district, is not arbitrary and capricious and is to be upheld.


1. Plaintiffs are the owners of the properties shown on the Truro Assessor’s Map 45 as parcels 5, 6, 122, 123, 124, and 125.

2. The Municipal Defendants are the lawfully constituted members of the Truro Board of Appeals. [Note 2]

3. The Private Defendants are (or at relevant times were) owners and/or residents and/or domiciliaries of single-family homes in Truro, Massachusetts.

Description of the Locus

4. Plaintiffs’ properties comprise six lots, equaling 9.072 acres and shown on a plan recorded in the Barnstable County Registry of Deeds in Book 558, Page 33. This land, the locus, is shown on a plan titled Site Plan of Land in Truro Made for Stephen M. DiGiovanni by Slade Associates, Inc., dated April 24, 2008. The property located at 1 Carlin’s Way is a 1.55 acre parcel improved with a five bedroom single family home, which was completed in 2006.

5. The property located at 2 Carlin’s Way is a 1.720 acre parcel improved with recreational amenities, including a half-size basketball court, tennis court, shuffleboard, putting green, horseshoe pit, swing set, bocce court, and a small “Roman chair.” This recreational area was completed in 2008.

6. The property located at 3 Carlin’s Way is a 1.719 acre parcel improved with a seven bedroom single family home completed in 2005.

7. The property located at 4 Carlin’s Way is a 1.720 acre parcel improved with a seven bedroom single family home completed in 2007.

8. The property located at 5 Carlin’s Way is a .61 acre parcel which has on it a “private” beach area.

9. The property located at 6 Carlin’s Way is a 1.696 acre parcel improved with a six bedroom single family home completed in 1967. It also includes a garage with an apartment located above it, which was completed in 2005.

10. All of the lots, 1-6 Carlin’s Way, have water views overlooking Cape Cod Bay. Numbers 3, 4, and 6 Carlin’s Way are adjacent to the common beachfront lot which is known as 5 Carlin’s Way, and the lots numbered 1-6 Carlin’s Way all have the right to use the beachfront lot.

11. The construction of the dwellings at 1, 3, and 4 Carlin’s Way, as well as the garage and apartment above the garage at 6 Carlin’s Way, and the recreational area at 2 Carlin’s Way, were constructed in accordance with permits issued by the Building Commissioner.

12. In addition to the residences at 1 and 3 Carlin’s Way, there are also large terraced plateau areas with associated retaining walls on these properties. There is one such terraced area located on 1 Carlin’s Way and another terraced area on 3 Carlin’s Way.

Location of Defendants’ Properties

13. Katherine Black and Peter Black own property at 4 Skyview Drive, Truro, Massachusetts.

14. Scott Comstock and Kathleen Comstock own property at 8 Skyview Drive, Truro, Massachusetts.

15. Ellen Schiereck and Elizabeth Sluzis own property at 5 Skyview Drive, Truro, Massachusetts.

16. Marvin Cohen and Anne Cohen own property at 2 High Ridge Road, Truro, Massachusetts.

17. Caroline Jaenicke and Richard Jaenicke own property at 4 High Ridge Road, Truro, Massachusetts.

18. Leo Vannoni and Theresa McNamara-Moreira own property at 6 High Ridge Road, Truro, Massachusetts.

19. Sandra Comerchero and Sam Comerchero own property at 10 High Ridge Road, Truro, Massachusetts.

20. Ann Courtney and Richard Courtney own property at 7 High Ridge Road, Truro, Massachusetts.

21. David Hoffman and Beth Andrews own property at 3 High Ridge Road, Truro, Massachusetts.

22. Gloria Vigliani and David Clive own property at 2 High Ridge Road Extension, Truro, Massachusetts.

23. Helen Goodman and Jerry Goodman own property at 6 High Ridge Road Extension, Truro, Massachusetts.

24. Carol Green, as Trustee, owns property at 8 High Ridge Road Extension, Truro, Massachusetts.

25. David Kelly and Denise Kelly reside at 5 High Ridge Road, Truro, Massachusetts.

26. David Kelly and Denise Kelly also own a vacant lot across from 2 Carlin’s Way known as 10 Old Colony Way, Truro, Massachusetts.

27. Mary Wright, the Wright Family Nominee Trust and the Milton and Mary Wright Revocable Living Trust own property at 1 and 2 Kill Devil Road, Truro, Massachusetts.

28. Fay Greenwald owns property at 24 Great Hollow Road, Truro, Massachusetts.

29. Laurine Bow owns property at 34 Great Hollow Road, Truro, Massachusetts.

30. Katherine Jarvis owns property at 36 Great Hollow Road, Truro, Massachusetts.

31. Judith Schmidt owns property at 12 Old Colony Way, Truro, Massachusetts.

32. Judith Schmidt’s property is located across the street from 2 Carlin’s Way.

33. John Strand owns property at 14 Old Colony Way, Truro, Massachusetts.

34. Sandra Williams and Emily Porris own property at 11 High Ridge Road, Truro, Massachusetts.

35. Donna McLaughlin and Steve McLaughlin own property at 9 Sky View Drive, Truro, Massachusetts.

36. Kathryn Kogan and Chuck Kogan own property at 8 High Ridge Road, Truro, Massachusetts.

37. Anne Fausto-Sterling owned property at 2 Eliantha Lane. This property abuts 2 Carlin’s Way.

38. Anne Fausto-Sterling no longer resides at 2 Eliantha Lane. [Note 3]

History of the Locus

39. Parcel 122, known as 1 Carlin’s Way (“1 Carlin’s Way”), and parcel 123, known as 3 Carlin’s Way (“3 Carlin’s Way”), are owned by BSC Truro Ventures, LLC. Parcel 125, known as 2 Carlin’s Way (“2 Carlin’s Way”), and parcel 124, known as 4 Carlin’s Way (“4 Carlin’s Way”), are owned by Stephen DiGiovanni as Trustee of GCQ Realty Trust. Parcel 6, known as 6 Carlin’s Way (“6 Carlin’s Way”), and parcel 5 known as 5 Carlin’s Way (“5 Carlin’s Way”), are owned by Stephen DiGiovanni as Trustee of DLQ Realty Trust. [Note 4]

40. Carlin’s Way recently has been renamed Mary’s Way. [Note 5]

41. Plaintiffs or their family and trusts controlled by their family have owned the property since the early 1960s when it was purchased by Louis DiGiovanni (“Mr. DiGiovanni”), who was married to Mary DiGiovanni (“Mrs. DiGiovanni”).

42. The home at 6 Carlin’s Way, built by Mr. and Mrs. DiGiovanni, was completed in the mid-1960s.

43. From approximately the mid-1960s through 2006, Mrs. DiGiovanni lived at 6 Carlin’s Way during the summer months with her children, and with her husband for a majority of those years. Mr. DiGiovanni and Mrs. DiGiovanni were divorced in the late 1980s or early 1990s.

44. The locus was held in various trusts until it was eventually transferred in 1996 or 1998 to two trusts, the GCQ and DLQ Realty Trust, of which the beneficiaries were various members of the DiGiovanni family, including some of the children.

45. The members of BSC Truro Ventures LLC are Mrs. DiGiovanni as to ninety percent, and Richard Scimone, Esquire (“Mr. Scimone”) as to ten percent.

46. The current beneficiaries of the GCQ Trust are certain of Mrs. DiGiovanni’s ten children as well as her grandchildren, and the beneficiaries of the DLQ Realty Trust are her remaining children and her grandchildren and great-grandchildren.

Use of the Locus

47. Stephen DiGiovanni (“DiGiovanni”) has resided at 6 Carlin’s Way in the apartment over the garage with his wife Donna DiGiovanni since 2005. This apartment above the garage at 6 Carlin’s Way has an address of 6A Carlin’s Way.

48. Mrs. DiGiovanni has resided at 1 Carlin’s Way in an in-law apartment. The in-law apartment located at 1 Carlin’s Way has a address of 1A Carlin’s Way.

49. The locus has been advertised for vacation rentals under the name “Truro Adventures.”

50. “Truro Adventures” is not an independent legal entity, but a name selected by Plaintiffs to use to advertise their properties for vacation rentals.

51. The locus has been advertised for rental in conjunction with, and presenting the availability of suitable grounds and amenities for, large well-attended receptions and other social events to be hosted by the prospective tenants. Truro Adventures advertised the locus on its web site as available for use for “Private Parties, Reunions, Retreats and Weddings.” This availability also was made known through color brochures disseminated through area brokers and elsewhere in and around Truro, and by listings with brokers.

52. Truro Adventures cultivated a relationship with professional wedding event planners, most notably with Connie Nye Clark, who does business as the Perfect Plan. Several of the wedding events held at the locus in 2007 and 2008 were organized and overseen by Ms. Clark. Truro Adventures created a set of guidelines for event planners and a preferred list of vendors to be used when a wedding event took place on the Plaintiffs’ properties. These documents were prepared with the aid of Ms. Clark.

53. In some of the advertising, the rental of the locus has been offered as coming with amenities such as concierge service, in-house massages, private chef (available upon request), and a wide range of recreational activities, including wake boarding, sport fishing, water skiing, and kayaking. At times the Plaintiffs promoted rentals with rates, discounted as part of holiday and “getaway” “packages,” said to be “as low as $105. per guest/night!”

54. Plaintiffs caused an attractive wooden sign to be mounted near the entrance to Carlin’s Way and the locus, which advertised “Luxury Waterfront Homes for Rent/Sale.” The sign, which provided the phone number and website of Truro Adventures, listed a number of “[f]amily amenities,” and described the locus as “[p]erfect for family gatherings and retreats.”

55. The rental of the houses and properties at 1-6 Carlin’s Way is managed by DiGiovanni and his wife, Donna DiGiovanni.

56. The single family homes on the locus have been rented for vacation rentals since 2004, with ninety percent of the rentals occurring from June through September.

57. The rentals are generally weekly rentals; a rental can last for between one to four weeks, but during the shoulder season the rentals may be three to four days. [Note 6]

58. Only two of the four homes are kept open for rentals during the winter months. The other two homes are closed.

59. In 2007 the dwellings at 1-6 Carlin’s Way were either individually or jointly rented for vacation rentals for a combined total of approximately 42 weeks, and family and friends of Plaintiffs used the dwellings for a combined total of approximately 15 weeks, totaling 57 weeks. [Note 7]

60. In 2008 the dwellings at 1-6 Carlin’s Way were either individually or jointly rented for vacation rentals for a combined total of approximately 56 weeks, and family and friends of Plaintiffs used the dwellings for a combined total of approximately 15 weeks, totaling approximately 71 weeks.

61. In 2009 the dwellings at 1-6 Carlin’s Way were either individually or jointly rented for vacation rentals for a combined total of approximately 50-51 weeks, and family and friends of Plaintiffs used the dwellings for a combined total of approximately 15 weeks, totaling approximately 65-66 weeks.

62. In 2010 through the time of trial the dwellings were either individually or jointly rented or reserved for vacation rentals for a combined total of approximately 38-40 weeks, and family and friends of Plaintiffs used or were expected to use the dwellings for a combined total of approximately 15 weeks, totaling approximately 53-55 weeks.

63. The recreational amenities on the locus are available from 8:00 a.m. to 8:00 p.m. for the use of the renters. No separate or additional fee is charged for their use, nor is extra rent paid by the renters for their use.

64. Outdoor wedding receptions were hosted at the properties--by individuals renting one or more of the single family homes--on May 27, 2007, June 24, 2007, July 26, 2007, August 5, 2007, June 7, 2008, and September 27, 2008. These wedding receptions were held at 1 and 3 Carlin’s Way.

65. Wedding receptions which took place on May 27, 2007, June 24, 2007, August 5, 2007, June 7, 2008, and September 27, 2008 involved large reception tents placed there to accommodate guests. The tents for the May 27, 2007 and August 5, 2007 wedding receptions were erected at 3 Carlin’s Way, while the tent for the June 24, 2007, June 7, 2008, and September 27, 2008 wedding receptions was erected at 1 Carlin’s Way.

66. Guests attending the August 5, 2007 wedding were transported to the reception by two large buses.

67. The outdoor events in 2007 and 2008 included electronically amplified music, either produced through a disc jockey or by live band, and an amplified public address system.

68. Two indoor receptions were hosted at 4 Carlin’s Way on September 15, 2007 and May 3, 2008.

69. No events, gatherings, or receptions took place at the locus in 2009 and 2010.

70. Several of the events caused traffic congestion in and around Carlin’s Way and the Old Colony Way neighborhood. Particularly when events were held without an off-site parking area and shuttle buses, Old Colony Way in the vicinity of Carlin’s Way, and heading out to Route 6, was used by event attendees for parking of their vehicles, resulting in a diminution of on-street parking which otherwise would be available in this neighborhood, and constriction of the travel lanes on what is a narrow roadway with a rural character and presentation.

71. The sound generated by the events held outdoors in 2007 and 2008 included music, speeches and other announcements broadcast by a public address amplification system. These sounds, as well as noise generated by the attendees at the reception, were loud and clearly audible by a number of the Private Defendants on their properties and within their neighboring homes, including, without limitation, the Courtney home, the Fausto-Sterling home, the Schmitt property, the Kelly house, the Schiereck property, and the Hoffman property. At times the sounds and noise of the events could be heard as far away as the home of Gloria Vigliani at 2 High Ridge Road. Residents of many of the surrounding homes were disturbed enough by the sounds and noise that they on many occasions needed to retreat inside their homes, even in fine summer weather, and shut windows to reduce the impact upon them. Some neighbors even at times felt the need to leave the neighborhood while the events were underway to seek refuge from the noise. The sounds and noises of these events kept a number of the defendants from getting to sleep.

72. Several of the wedding events at the locus resulted in calls by neighbors to the police complaining about the noise and disturbance.

73. In addition to noise and disruption, including vehicular traffic impacts, caused by the evening events at the locus, there also was noise and traffic constriction caused by the activities necessary to set up the tent, portable toilets, sound systems, band equipment, and catering facilities on the days prior to each event, and similar intrusive activities took place on the days following each event. Trucks participating in these activities had to navigate the narrow roads leading to the locus, and generated unwelcome sounds, including engine noise and backup warning alert tones.

74. DiGiovanni came up with and implemented guidelines in 2007 for those hosting wedding receptions. These guidelines provided, among other things, that a Truro police detail be hired by the renter, that transportation be provided from an off-site parking location to the reception in small passenger vans with no more than a 12 person capacity, that no large buses be used, that the reception end between 8 p.m. and 9 p.m., and that amplified sound and music end by 8 p.m.

75. DiGiovanni does sign, and has permitted a real estate agent who lists the homes for rent to sign on his behalf, a permit application authorizing renters to erect a tent at the location of the reception, pursuant to which a permit is issued by the Building Commissioner’s office to authorize the tent.

76. Plaintiffs do not charge extra rental fees or any other type of fee to those renters who are using the locus for wedding receptions. Plaintiffs do not receive a fee from vendors hired by these renters.

77. Steven Downey, a licensed real estate broker and owner of Duarte Downey Real Estate, knows of two or three residences in Truro that are specifically offered as being available for the hosting of weddings, not including the locus. These properties are Hedgebound, located on the corner of Depot Road and Holsberry Road; Edgewood Farm, located on Edgewood Farm Road or Edgewood Road; and a property located at 74 Depot Road.

78. Another residential venue known as Eagle’s Neck, located on Mill Pond Road, also permits celebrations by those who rent the home for approximately a week.

Enforcement Proceedings

79. On December 20, 2007 counsel for Defendants wrote to the Truro Building Commissioner alleging that Plaintiffs’ activities and operations on the locus, including the marketing and renting of 1-6 Carlin’s Way for events and gatherings such as weddings, and the holding of those events, were in violation of the Truro Zoning Bylaws, and requested enforcement of these zoning bylaws.

80. On January 3, 2008 the Truro Building Commissioner wrote to Private Defendants’ attorney declining to take the requested zoning enforcement action against Plaintiffs.

81. On February 1, 2008 Private Defendants filed an administrative zoning appeal pursuant to G.L. c. 40A §§ 8, 15 (“Appeal”) to the ZBA from the Building Commissioner’s decision.

82. The ZBA opened a duly advertised and noticed hearing on the Appeal on March 3, 2008 and further duly noticed and posted hearings were held on March 31, and April 14, 2008.

83. On April 14, 2008 the ZBA voted to grant the Appeal, and overturned the decision of the Truro Building Commissioner. This decision by the Board was filed with the Truro Town Clerk on April 24, 2008.

84. On May 14, 2008 Plaintiffs filed in this court their appeal from the decision of the ZBA .

Town of Truro Zoning Bylaws

85. All of the lots owned by Plaintiffs and Private Defendants are located within a single-family residential zone.

86. The stated purposes of the residential zoning district, as stated in the Zoning Bylaw, Section 20.2, are: “Residential districts are intended to provide appropriate space for housing and associated uses for the people of the town. They should provide safety, good access, and the opportunity to enjoy the peace and beauty of the property and the Town.”

87. Under the Zoning Bylaws, including the applicable provisions of their use table, the only principal use category material to this matter that is permitted of right is a single-family residence.

88. According to the Zoning Bylaws, “Uses not expressly permitted are deemed prohibited.” “Cottage or cabin colony, motor court,” “Hotel,” and “Motel” are all uses expressly prohibited in the residential district. Zoning Bylaw, § 30.2.

89. The Zoning Bylaws, according to the use table, allow an “[a]ccessory use to a permitted main use on the same premises.”

90. “Accessory Use” is defined in the Zoning Bylaws as “[a] use customarily incidental and subordinate to the principal use or building and located on the same lot with such principal use or building. In zoning districts restricted to residential use, a professional office located within or adjacent to the residential premises or a home occupation so located constitutes an accessory use.” Zoning Bylaw § 10.4.



I. Standing

Under G. L. c. 40A, § 17, only “persons aggrieved” have standing to appeal a decision of a zoning board of appeals. Sweenie v. A.L. Prime Energy Consultants, 451 Mass. 539 , 542 n.9 (2008). If a plaintiff’s legal or property rights will (or likely will) be infringed by a board’s action, then he or she qualifies as a “person aggrieved.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Circle Lounge & Grill, Inc. v. Board of Appeal of Boston, 324 Mass. 427 , 430 (1949). While the term “person aggrieved” is not to be narrowly construed, the plaintiff’s injury must be more than speculative, and must be particularized, distinct from general community interests. Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551 , 554 (1999) (stating that the violation must be “special and different from the concerns of the rest of the community”); Marashlian, 421 Mass. at 721; Nickerson v. Zoning Bd. of Appeals of Raynham, 53 Mass. App. Ct. 680 , 682 (2003); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-493 (1989) (requiring that plaintiff show “a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest”). In addition, the injury claimed by the plaintiff also must be “legitimately within the scope of the zoning laws.” Marashlian, 421 Mass. at 722.

There is an initial presumption that an individual who is entitled to notice of board hearings is a “person aggrieved,” [Note 8] although that presumption will fall away if adequately challenged, the question then to be decided on all the evidence. See Standerwick v. Zoning Bd. of Andover, 447 Mass. 20 , 32-33 (2006); Marashlian, 421 Mass. at 721; Marotta v. Board of Appeals of Revere, 336 Mass. 199 , 203-4 (1957). The plaintiff in such a circumstance must provide facts from which the court may find the aggrievement necessary to constitute standing. Standerwick, 447 Mass. at 33-35; Barvenik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). To establish standing a plaintiff “must put forth credible evidence to substantiate his allegations.” Marashlian, 421 Mass. at 721. While a plaintiff does not need to provide a preponderance of evidence at the trial of the case, the evidence provided “must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board’s action.” Butler v.Waltham, 63 Mass. App. Ct. 435 , 441 (2005). To meet the standard of “credible evidence,” the evidence offered must provide specific factual support for each claimed injury (quantitative), and must be of a type on which a reasonable person could rely (qualitative). Butler, supra, at 441. “Conjecture, personal opinion, and hypothesis” are insufficient. Id.

Claims of aggrievement concerning increased traffic, decreased parking, and concerns regarding drainage, erosion, and flooding typically have been recognized by Massachusetts courts as sufficient to confer standing. See Paulding v. Bruins, 18 Mass. App. Ct. 707 , 709 (1984) (plaintiffs’ claims of erosion, flooding, and damage to trees sufficient to confer standing); Marashlian, 421 Mass. at 723 (a decrease in parking and an increase in traffic were “neither speculative nor too remote to make the persons ‘aggrieved.’”).

Claims arising from aesthetic concerns, such as a loss of view and loss of open space, however, are generally not considered sufficient to confer standing unless explicitly protected in the municipality’s by-laws. See Martin v. Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141 , 146 (2001) (“concerns about the visual impact of a structure do not suffice to confer standing”; however, the court found standing here because Belmont’s zoning by-laws specifically stated that views from public ways and developed properties should be “considerably treated” in the site development and building design); Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989) (holding that a generalized concern of diminishment of open space fell under the category of aesthetic views and was not sufficient to confer standing). Cf. Epstein v. Board of Appeal of Boston, 77 Mass. App. Ct. 752 (2010) (elimination of light, air, and views were interests protected in section 2 of the Boston enabling act and therefore constituted an aggrievement); Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685 , 688 (1994) (plaintiffs’ concerns regarding loss of view conferred standing because Plymouth conditioned the granting of a special permit by a finding that “[t]he proposed structure will not in any way detract from the visual character or quality of the neighborhood.”) (internal quotation marks omitted); Bedford v. Trustees of Boston Univ., 25 Mass. App. Ct. 372 , 377-78 & 377 n.4 (1988) (diminishment of light and air was a basis for standing where section 2 of the Boston enabling act provided for “adequate light and air”). Similarly, diminution in value also is not sufficient for standing unless it is tethered to a interest protected by the zoning by-laws. Standerwick v. Zoning Bd. of Appeals of Andover , 447 Mass. 20 , 31-32 (“A claim of diminution of property values must be derivative of or related to cognizable interests protected by the applicable zoning scheme.”).

“A person aggrieved under G.L. c. 40A must assert ‘a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.’” Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 120 (2011). “The right or interest asserted by a plaintiff claiming aggrievement must be one that G.L. c. 40A is intended to protect.” Id. “Aggrievement requires a showing of more than minimal or slightly appreciable harm. ... The adverse effect on a plaintiff must be substantial enough to constitute actual aggrievement such that there can be no question that the plaintiff should be afforded the opportunity to seek a remedy.” Id. at 121-122.

A. Dismissal of Private Defendant Fausto-Sterling

At trial, Private Defendant Anne Fausto-Sterling testified that she was in the process of closing on the sale of her house; however, at the time of trial she already had deeded her property to the buyers, but waited to record the deed until after the conclusion of the taking of evidence at trial. This delayed recording took place after the evidentiary phase of the trial in the Barnstable County Registry of Deeds at Book 24569, Page 296. Consistent with the rulings made when trial resumed for closing argument, Fausto-Sterling has been dismissed from this action because she no longer has any stake in the outcome of the litigation.

B. Other Private Defendants Have Standing

Only a person aggrieved, pursuant to G.L. c. 40A § 17, has standing to seek redress through administrative appeal from a zoning enforcement officer’s determination to a board of appeals, and then to challenge that board’s decision in a judicial appeal. Of the remaining Private Defendants, only David Kelly, owner of property at 10 Old Colony Way, Truro, Massachusetts, Judith Schmidt, owner of property at 12 Old Colony Way, Truro, Massachusetts, and Ellen Schiereck, owner of property at 5 Skyview Drive, Truro, Massachusetts, enjoy the presumption of standing; they are parties in interest, pursuant to G.L. c. 40A § 11. Although the standing of these Private Defendants was challenged by Plaintiffs, I find and rule that these Private Defendants do have standing. They are aggrieved, within the framework established by G.L. c. 40A, §17 and the interpretive decisional law, because they have put forward evidence to provide a sufficient showing of a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest, and that the rights and interests they assert have been violated are ones that G.L. c. 40A is intended to protect.

In addition to the testimony of Judith Schmidt, David Kelly, and Ellen Schiereck, two more Private Defendants, Ann Courtney, and Gloria Vigliani, who are not parties in interest under section 11, also testified. Through their testimony, Ann Courtney and Gloria Vigliani also have demonstrated that they possess standing as aggrieved parties to have brought the administrative appeal and the ensuing judicial appeal to this court.

I decline to address whether each individual Private Defendant has standing, concluding that it is sufficient that Ann Courtney, Judith Schmidt, David Kelly, Ellen Schiereck, and Gloria Vigliani have standing. “It is not necessary for the judge to determine that all of the [defendants] had standing. The fact that only one of the [defendants] was an aggrieved person is sufficient to permit the appeal from the [commissioner’s] decision.” Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 n.7 (1986). For the case to move forward, only one defendant needs to have standing. See Cohen v. Zoning Bd. of Appeals of Plymouth, 35 Mass. App. Ct. 619 , 620 (1993).

I conclude that these Private Defendants have shown a plausible claim of a violation of a recognized and protected interest. They claim primarily the material and adverse effects upon them and their properties of noise and traffic generated by the Plaintiffs’ tenants’ use of the locus for the complained of events and receptions. These are valid grounds for aggrievement.

Noise certainly is addressed by the general bylaws of the town. Plaintiffs urge me to conclude, based on this non-zoning regulation, that noise complaints are not encompassed within the sphere of zoning regulation which forms the basis for the zoning enforcement request and orders at issue in the pending case. This is not, however, a valid defense. The fact that the Town Meeting in Truro has seen fit to regulate, by a general bylaw enacted under the police power, the levels of noise which are excessive in the town, does not make issues about loud sounds and noises off-limits for consideration in zoning cases. The noise generated by a given use of land continues to have an important role in the zoning determinations necessary to decide questions under the zoning bylaws, including, as here, whether a given use is or is not one allowed in a zoning district. Courts have taken into account the level of noise heard by neighboring landowners as a factor in deciding how a use qualifies under the zoning regime, and courts have rejected efforts to have the courts ignore the zoning consequences of noise based on the additional regulation of noise in a non-zoning bylaw. See Kinchla v. Board of Appeals of Falmouth, 11 Mass. App. Ct. 927 , 927 (1981) (“The applicant’s argument that because Falmouth has an anti-noise by-law, the zoning by-law may not also be interpreted so as to regulate noise is without merit.”). Especially where complaints about noise come from homeowners in a residential district, the question of noise can be a fundamental one appropriately considered in the zoning context.

The purpose of the Town of Truro’s Zoning bylaws is to “promote the health, safety, convenience and welfare of the inhabitants of Truro, prevent the overcrowding of land, conserve the value of land and buildings . . . and to promote the implementation of the goals and policies of the Truro Local Comprehensive Plan” (“Comprehensive Plan”). Town of Truro Zoning Bylaw § 10.2. One such policy of the Comprehensive Plan is to protect the “rural character” of the town. TRURO LOCAL COMPREHENSIVE PLANNING COMMITTEE, 2005 TRURO LOCAL COMPREHENSIVE PLAN 11 (2005). The rural character of the town is defined as “its small year-round population, leisurely rhythms, and community spirit [which] all keep it removed from the urban or suburban scene and, indeed, far removed from the scene in other Cape Cod communities. The rural qualities of the town’s landscape, buildings, pace of life, citizenry and attitude toward self all combine to speak of an older place and earlier time.” TRURO LOCAL COMPREHENSIVE PLANNING COMMITTEE, 2005 TRURO LOCAL COMPREHENSIVE PLAN 11 (2005). It is difficult to consider the goals and policies of the Comprehensive Plan and not find in them a sufficient recognition of the impact excessive noise would have to diminish the sought-after rural character of the Town, particularly in a residentially zoned district. I conclude that a zoning board of appeals can look at noise--treating it as one of the factors which affect Truro’s rural character--in interpreting and directing enforcement of the residential use provisions of the local zoning laws.

During trial, Ann Courtney, Judith Schmidt, David Kelly, Ellen Schiereck, and Gloria Vigliani all testified as to the impact that loud, disruptive noise, generated from the wedding receptions, had on the enjoyment of their property. Ann Courtney, Judith Schmidt, David Kelly, Ellen Schiereck, and Gloria Vigliani testified that they were forced to close their windows due to the noise from at least one wedding held at Plaintiffs’ property and that some of them were forced to leave their homes to escape the sounds. The noise from the various weddings held at Plaintiffs’ property significantly violated these Private Defendants’ right to be protected, in their residential zoning district, from that noise, which, as they allege, emanated from the locus, also in the residential district, as a result of a use that was not permitted there. That evidence is sufficient to confer standing. See Kinchla, 11 Mass. App. Ct. 927 (1981).

Additionally, when challenged projects or uses generate material traffic and parking constriction, those concerns generally are sufficient to confer standing to bring zoning appeals. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 723 (1996) (a decrease in parking and an increase in traffic were “neither speculative nor too remote” to keep the persons from being aggrieved.). At trial Ann Courtney, Judith Schmidt, David Kelly, Ellen Schiereck, and Gloria Vigliani testified that the wedding receptions caused traffic congestion and an loss of available parking in the neighborhood on Old Colony Road and as far as Route 6, and I accept generally their evidence on this score. A uniformed officer also was hired for one event; this was to direct traffic at the intersection of Route 6 and Great Hollow Road and to allow the buses to bring guests to the wedding; this I find caused a significant delay lasting about twenty minutes to travel two miles to reach the neighborhood homes of these Private Defendants. The evidence shows me that the Private Defendants correctly assert that the disputed wedding receptions caused significant traffic congestion and an increase in parking in their residential neighborhood.

I find and rule that David Kelly, Judith Schmidt, Ellen Schiereck, Ann Courtney, and Gloria Vigliani have the requisite aggrievement to have appealed to the Board and to this court, based, at a minimum, on the noise and traffic created by the wedding receptions hosted at the locus. These Private Defendants have standing, and I am able to consider the merits of their appeal, which requires me to determine whether or not the challenged uses of the locus violated the use provisions of the Zoning Bylaws.

II. Plaintiffs’ Use of Their Property Was Not An Accessory Use

An accessory use is a use incidental to the primary use of the property. An accessory use is subordinate to the primary use, and is said to be “attendant or concomitant.” Henry v. Board of Appeals of Dunstable, 418 Mass. 841 , 844-45 (1994). Generally, an accessory use must be both incidental and customary. Simmons v. Zoning Bd. of Appeals of Newburyport, 60 Mass. App. Ct. 5 , 8 (2003). Determining whether the use is incidental is a “fact-dependent inquiry” that looks to the effect of the incidental use on the primary use and the reasonableness of the relationship between the incidental and primary uses. Henry, 418 Mass. at 844; see also Gallagher v. Board of Appeals of Acton, 44 Mass. App. Ct. 906 (1997) (discussing case law surrounding the terms accessory and incidental use). Whether Plaintiffs’ use of this property is an accessory use also depends in part on the frequency and intensity of the challenged use. For a use to remain accessory it must be “subordinate and minor in significance” and at a certain point, the frequency of the use transforms an accessory use into a primary use. Garabedian v. Westland, 59 Mass. App. Ct. 427 , 435 (2003) (citing Harvard v. Maxant, 360 Mass. 432 , 438 (1971)) “Activity of a certain magnitude is no longer incidental.” Garabedian 59 Mass. App. Ct. at 436. See also Henry, 418 Mass. 841 (1994) (holding the use was not accessory based on the volume of earth removed, the duration of the project, and the scope of the project).

While a local zoning law may grant great indulgence to a use by expressly conferring upon it status as accessory, when the local bylaw does not specify what types of accessory uses are permitted, courts generally look to what uses are customary. Simmons v. Zoning Bd. of Appeals of Newburyport, 60 Mass. App. Ct. 5 , 8 (2003). In considering what is customary, factors include: (1) the size of the lot; (2) the “nature of the primary use”; (3) the use of the surrounding properties; and (4) the “economic structure” of the surrounding area. Simmons, 60 Mass. App. Ct.at 9 (quoting Lawrence v. Zoning Bd. of Appeals of N. Branford, 158 Conn. 509, 512-513 (1969). The Town of Truro Zoning Bylaws recognize accessory uses, defining an accessory use as “[a] use customarily incidental and subordinate to the principal use or building and located on the same lot with such principal use or building. . . .” § 10.4.

Here, Plaintiffs’ challenged use of the locus was not an accessory use. The Board was correct when it determined that, because the dominant rental and marketing of the property, which stressed that it was set up and available for the holding of big weddings and other large, well-attended social gatherings, was not minor in significance and subordinate to the primary use of the property, which is for single family residential use. The Board correctly concluded that the intensity and frequency of the use of locus in 2007 for wedding events by tenants took this use beyond a mere accessory use, and transformed it into a primary use. The locus was rented five times during the summer months in 2007 for large-scale intrusive wedding celebrations.

This is not to say that relatively occasional use of a residential property for a large wedding reception (or other well-attended event) is, by itself, a violation of the accessory use limitations of a zoning law like the one enacted in Truro. [Note 9] On an isolated and infrequent basis, it would be difficult to say that hosting such a party is a violation of zoning rules; doing so would, rather, seem to fall within the scope of a use accessory to the principal single-family residential use allowed in the district. That would be so, it also seems, even should this relatively rare event produce some loud noise and traffic and parking disruption for neighbors. Zoning ought not be so rigid and inflexible as to treat as a violation even a single such event, and neighbors ought not look to the zoning laws to prohibit isolated parties, even those which impose on surrounding residential properties. It is, however, a question of the degree, intensity, frequency, and dominant purpose of the challenged use which, on the particular facts, will characterize it as either accessory or not. In the case before me, it is the combined intensity of the regular large-scale events, taking place on quite a few weekends over the course of a short summer season, which throws this use of locus well beyond the incidental use that would qualify it as accessory. It is notable that most of the receptions were carried out for renters, and not for the owner occupants of the locus. The rental of the locus five times during a single season for outdoor wedding receptions surpasses accessory use and becomes a primary use. [Note 10]

Courts employ this “incidental” requirement as a limit on accessory uses for another related reason: to minimize harm to surrounding landowners. Cunha v. New Bedford, 47 Mass. App. Ct. 407 , 411 (1999) (quoting ROHAN, ZONING AND LAND USE CONTROLS, § 40A.03[1] (1999) (“purpose behind the incidental requirement is that . . . ‘it will presumably not harm - or inflict only minimal harm upon - other residential users.’”). The impact a use has on the surrounding area may reach a level that makes the use not an accessory one. In Garabedian v. Westland, the Appeals Court held that the use of an airplane hangar and runway on residential property was not an accessory use because the use, the taking off and landing of airplanes, had “an impact well beyond the boundaries of the land. ...” 59 Mass. App. Ct. at 436. The court concluded that “[a]ctivity of a certain magnitude is no longer incidental,” observing that “[k]eeping elephants is different than keeping a dog. ...” Id.

I do find that Plaintiffs’ use of the property for wedding receptions had an impact which extended well beyond the boundaries of the locus. The outdoor wedding events held in 2007 included amplified music, played by either a DJ or live band, as well as an amplified public address system. The noise from the music and the public address system was not confined to the locus, but was heard by the Private Defendants on their properties throughout the entire event over a good bit of the neighborhood. Private Defendants felt compelled either to go inside and close their windows or leave the neighborhood to escape the noise, which even affected the ability of some Private Defendants to sleep. The adverse negative impact of the noise on the neighbors, including the Private Defendants with standing, was recurrent, and leads me to conclude that these events were not mere incidental accessory uses of the locus.

I also find and rule that the challenged uses fail to qualify as accessory because the locus was not held out merely for the primary purpose of simple residential rental use. The Plaintiffs’ strong emphasis, in offering these properties, was to make them available in conjunction with, and to facilitate, large parties and other social receptions on the site. The marketing of these properties evinces an intention by the Plaintiffs to target a rental audience that sought more than just residential use of the locus. The target audience, or at least one significant sector of it, was one which wanted a venue for a large wedding reception. This is so because the web site, print, and other advertisement all emphasized the suitability of the properties for this kind of use. This use was sought out by Plaintiffs through wedding planners, who would of course bring to the locus families intent on staging a wedding reception there. The ads all portrayed the site more like a commercial resort or function facility, rather than simply a luxurious private Cape Cod beachfront family residential compound.

Plaintiffs were fully focused on the wedding and other large event uses of their properties, and managed and rented them in a manner which shows that this use was one they expected and encouraged to take place. Plaintiffs developed a comprehensive set of well documented policies to govern and control reception uses of the land. While they may be commended for trying in this manner to reduce, to some degree, the negative effects on the neighborhood, what this shows is that the Plaintiffs kept as a dominant purpose the use of the site for repeat wedding business. They did not treat big weddings as an infrequent and isolated happening on Carlin’s Way. I find, in fact, that Plaintiffs cultivated the wedding reception use of the locus, primarily because it was a high profit way to generate maximum rental income from this prime real estate.

I do not find persuasive Plaintiffs’ argument that the renting of properties on Cape Cod for weddings and large gatherings is common, and that Plaintiffs’ use is consistent with this practice in the community and so qualifies as accessory. I do not give much weight at all to the evidence indicating that other properties in Truro are rented out for wedding receptions. The proof on this is unsatisfying. There is no reliable indication from the testimony I credit which helps me appreciate the size and frequency of the events held at these other locations, the location of these venues, whether they are set back and removed from surrounding properties, how they are marketed, what the relevant zoning constraints are, and how much of an impact these venues have on the neighborhood.

I also do not find in the Superior Court’s decision in Elliot v. Parent, on which Plaintiffs ask me to rely in deciding this case, much basis for doing so. The facts in the Superior Court case appear distinguishable from those I have found in the case now before me. Cf. Elliot v. Parent, et. al., No. 99-15 (Sup. Ct. Mass. 2000). Elliot v. Parent involved plaintiffs who rented out their property on Nantucket for the hosting of wedding ceremonies. The Superior Court upheld the Board of Appeals’ decision that the hosting of weddings involved there was an allowed accessory use on a property primarily used for residential purposes. However, the property involved in Elliot was in a “Limited Use General-3 Zone,” not a residential district, and that district allowed “outdoor carnivals, lawn parties, or like activities” for periods not exceeding thirty days. The Town of Truro bylaws do not allow those uses, or anything like them, in a residential district, the zone in which the Plaintiffs’ land lies. Town of Truro Zoning Bylaws § 30.2. The trial court in the Nantucket case also relied on a determination that the island was zoned in a manner that promoted more mixed use, allowing commercial and residential uses to be more interspersed throughout the entire island. This is not the case in Truro, the Plaintiffs’ locus is situated entirely within a purely residential district. I do not find in the Superior Court decision any reason to conclude other than that the Plaintiffs’ challenged use is not an accessory use, and is not a use permitted in their residential zoning district.

III. The ZBA’s Decision Overturning the Decision of the Truro Building Commissioner Was Not Arbitrary or Capricious.

The burden of proof lies on the Private Defendants to establish that Plaintiffs’ use of the property is not an accessory use allowed within a residential district. In an enforcement case, the party seeking enforcement of the town’s bylaws has the “burden of proving that the plaintiff[]s[’] use of its premises violates the by-law.” Brotherhood of Alpha Upsilon, Inc. v. Zoning Bd. of Appeals of Bridgewater, 15 Mass. App. Ct. 991 , 992 (1983). I find and rule that the Private Defendants have met this burden. They first adequately demonstrated before the ZBA that, as the Board determined, Plaintiffs’ use of the property was analogous to a hotel or inn, and constituted a commercial use banned in a residential district. Plaintiffs then appealed, seeking to overturn the ZBA’s decision on the grounds that it is arbitrary and capricious.

In reviewing a zoning board of appeals decision, the trial court is to hear the issues raised on appeal de novo and independently determine if the facts which the trial court find, considered in light of the governing law, support the decision of the board. Josephs v. Board of Appeals of Brookline, 362 Mass. 290 , 295 (1972). This scope of review is focused on the facts, which the court finds afresh; the court, however, does not have the same latitude when it reviews the judgments of a more discretionary nature made by the board, including, to some degree, those determinations which the board makes in interpreting and applying the local zoning laws. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954). Where reasonable minds may differ in drawing conclusions from evidence, the trial court must defer to the board unless the board’s judgment is based on a legally untenable ground or is “unreasonable, whimsical, capricious, or arbitrary.” ACW Realty Mgmt., Inc. v. Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996). A level of deference is given to boards concerning enforcement of local matters, especially when the decision requires a determination of what is customary. Simmons v. Zoning Bd. of Appeals of Newburyport, 60 Mass. App. Ct. 5 , 10 (2003).

The ZBA determined that Plaintiffs’ marketing and renting of the locus (and the resulting use by tenants) for events and gatherings, such as weddings, was not an accessory use, but rather a primary use contrary to the zoning rules of the residential district. The ZBA stated: “the marketing, rental, and operations of the properties at Carlin’s Way for purposes of hosting large gatherings such as weddings, etc., is contrary to the intentions of the Residential District; for all intents and purposes, such activities create a ‘virtual’ resort similar to a hotel or inn, and constitute a commercial use of the properties.” This decision, which does not prohibit Plaintiffs from renting their property, as is customary in the Truro, but which does prohibit Plaintiffs from marketing and renting their property for the purpose of having those renters host large gatherings and weddings, is fully supported by the facts as I have found them, and is entitled to be sustained by the court.

Based on the evidence as I have found it de novo, and having in mind the level of deference due to the Board, I find and rule that the Decision by the ZBA was not arbitrary, capricious, or based on legally untenable grounds, and is to be upheld.

Judgment accordingly.


[Note 1] The locus refers to the property owned by Plaintiffs (i.e., Stephen N. DiGiovanni as Trustee of DLQ Realty Trust and GCQ Realty Trust, and BSC-Truro Ventures, LLC) and is more particularly described infra.

[Note 2] “Municipal Defendants” refers to the members of the ZBA (i.e., Norman Pope, Keith Althaus, Marinna Matricardi, Janice Allee, and Alan Efromsom. “Private Defendants” refers to the individual property owners (i.e., Catherine Black, Peter Black, Scott Comstock, Kathleen Comstock, Ellen Schiereck, Elizabeth Sluzis, Marvin Cohen, Anne Cohen, Caroline Jaenicke, Richard Jaenicke, Leo Vannoni, Theresa McNamara-Moreira, Sandra Comerchero, Sam Comerchero, Richard Courtney, Ann Courtney, David Hoffman, Beth Andrews, David Clive, Gloria Vigliani, Helen Goodman, Jerry Goodman, Carol Green as Trustee, David Kelly, Denise Kelly, Mary Wright, Wright Family Nominee Trust, Milton and Mary Wright Revocable Living Trust, Fay Greenwald, Laurine Bow, Katherine Jarvis, Judith A. Schmidt, John Strand, Sandra Williams, Emily Porris, Donna McLaughlin, Steve McLaughlin, Kathryn Kogan, Chuck Kogan, and Ann Fausto-Sterling).

[Note 3] Ann Fausto-Sterling has been dismissed as a Private Defendant because, upon selling her house, she no longer has an interest in the property at 2 Eliantha Lane. See infra.

[Note 4] Lots numbered 1-6 Carlin’s Way collectively constitute the locus.

[Note 5] References to Carlin’s Way, the designation used by many of the witnesses are to what now is Mary’s Way.

[Note 6] The shoulder season refers to the period of time between the locus’ high and low seasons (the period between the peak summer months and the quietest winter months).

[Note 7] The combined total takes into account the individual renting of each of the dwellings located at 1-6 Carlin’s Way rather than the renting of all of the houses at 1-6 Carlin’s Way as a single package.

[Note 8] The rebuttable presumption of standing is provided to “parties in interest,” which include “the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to abutters within 300 feet of the property of the petitioner as they appear on the most recent applicable tax list.” See G. L. c. 40A, § 11.

[Note 9] Ann Courtney testified that she hosts an annual family reunion at her home for as many as fifty people. Ellen Schiereck also testified that she hosted her own wedding reception at her property.

[Note 10] I only look at the events prior to the time the Board made its decision. Therefore, indications that the rental of the locus for weddings decreased after the ZBA’s decision on April 24, 2008 I consider irrelevant. The time period for determining whether Plaintiffs’ use of the property constituted an accessory use is the time period before the ZBA acted.