By virtue of the instant action, initiated pursuant to G.L. c. 40A, § 17, Laurence S. Fordham (plaintiff / Fordham) seeks judicial review of a 2009 Decision of the Board of Appeals of the Town of Weston (Board). The 2009 Decision expanded the scope of a previously issued Business Storage Permit held by Michael and Janet Butera (defendants / Buteras) in conjunction with their landscaping and snowplowing business. The Business Storage Permit, issued under a unique provision of the Town of Weston Zoning Bylaw (Bylaw) authorizes the defendants to store business related vehicles, materials, supplies, and equipment on their residential property. The Board initially granted the Buteras a Business Storage Permit in 1995 (1995 Business Storage Permit). In 2003, the Board granted the Buteras an expanded Business Storage Permit (2003 Business Storage Permit) allowing for greater business storage on their property.
The plaintiff appealed the Boards 2003 Decision pursuant to G.L. c. 40A, § 17 and G.L. c. 185, § 1(j ½), challenging both the Boards decision and the validity of Bylaw Section V.B.5, [Note 1] which authorizes business storage use. Following an appeal from a decision of the Land Court (Lombardi, J.), the Supreme Judicial Court determined that Section V.B.5 was not constitutionally infirm. It remanded the case to the Land Court for further proceedings. See Fordham v. Butera, 450 Mass. 42 , 43 (2007).
This court thereafter annulled the Boards 2003 decision and remanded the action to the Board directing it to consider five (5) additional Zoning Act and Bylaw provisions in rendering a decision on the expanded Business Storage Permit request. This court retained jurisdiction for purposes of any appeal. Upon further consideration, the Board once again granted the defendants an expanded Business Storage Permit (2009 Business Storage Permit) by way of its 2009 Remand Decision.
On October 29, 2009, the plaintiff appealed the 2009 Remand Decision alleging that the Board had exceeded its authority in granting the 2009 Business Storage Permit. The plaintiff maintains that the defendants have not satisfied the requirements for a Business Storage Permit under Section V.B.5, nor have they met certain conditions for the conduct of a home occupation under Section V.B.1.f. Additionally, the plaintiff alleges that the 2009 Remand Decision cannot stand inasmuch as the Board failed to issue a variance, or alternatively a finding pursuant to G.L. c. 40A, s. 6 and Section III.A of the Bylaw.
For the reasons that follow, this court concludes after trial that the 2009 Remand Decision was not legally untenable, arbitrary, whimsical, or capricious. Consequently, the 2009 Decision of the Board will be AFFIRMED.
The case was heard over a two-day period on July 29-30, 2013, at which time a stenographer was sworn to take the testimony of Edward Peters, Jr., Michael Butera, and Laurence Fordham. Seventy-one (71) exhibits admitted into evidence are incorporated by reference into this decision for purposes of appeal. Proposed findings of fact were submitted by the defendants and are incorporated herein to the extent that they are consistent with this decision. They are otherwise denied. On all the credible testimony, exhibits, and other evidence properly introduced at trial or otherwise before this court, and the reasonable inferences drawn therefrom, and taking into account the pleadings, memoranda, and arguments of the parties, this court finds as follows:
History, Variance, and Prior Permits
1. Michael and Janet Butera own the property known and numbered as 534 South Avenue (Route 30) in Weston, Massachusetts (Locus). [Note 2]
2. Laurence Fordham owns the property known and numbered as 518 South Avenue (Route 30) in Weston, Massachusetts. Fordhams property abuts that of the Buteras at the Locus southern (rear) boundary line. [Note 3] The plaintiffs lot consists of four acres and is heavily wooded. Fordhams dwelling is located some distance from the parties common boundary. [Note 4]
3. The Locus is a preexisting nonconforming lot insofar as it does not meet the frontage or lot area requirements specified in the Bylaw for Single Family Residence District A, i.e. the District in which Locus is situated.
4. At all relevant times, the defendants have been engaged in a landscaping and snow removal business.
5. In 1991, the defendants applied for a variance to construct a barn on their property representing that it would be for personal use. [Note 5] At that time, the defendants used a small truck and trailer to conduct their landscaping business. Until that time, the truck and trailer were stored at a site in Waltham. [Note 6]
6. The plaintiff received notice of the variance application. [Note 7] On December 5, 1991, the Board granted the Buteras a variance to construct a barn on the Locus (Variance). The plaintiff did not appeal. [Note 8]
7. In 1995, the defendants had several customers in Weston. The Buteras applied for a Business Storage Permit as they wished to store their landscaping truck and trailer at the Locus. [Note 9] The plaintiff received notice of the application for a Business Storage Permit. Relying on Bylaw Section V.B.5, the Board granted the 1995 Business Storage Permit on October 6, 1995. [Note 10] The plaintiff did not appeal the Boards Decision.
8. The defendants also applied for a Building Permit to construct a shed off barn (Shed). The Building Inspector issued the Building Permit on October 25, 1995 (1995 Building Permit). [Note 11] The 1995 Building Permit authorized the defendants to . . . alter . . . buildings on #534 SOUTH AVE to be . . . used as SHED OFF BARN . . . . [Note 12] The plaintiff has never initiated an enforcement action challenging either the construction or validity of the Shed (or of the Tarp, discussed infra).
9. The Buteras stored their personal motor vehicle in the Shed together with certain other items originally maintained in the Barn. [Note 13] They did not use the Shed for business storage purposes until the acquisition of subsequent business vehicles in later years. The Shed shares a wall with the Barn and is attached by timber hangers. [Note 14] It is supported on the wall opposite the barn by posts.
10. In 2001 or 2002, [Note 15] the defendants also set up a plastic tarp (Tarp), which leans against the Shed. [Note 16] It is supported by tubing and used primarily for the storage of personal items, including materials for the defendants garden. Predicated upon a conversation with the Building Inspector, the defendants believed that no building permit was required for the Tarp. [Note 17]
11. In 2003, Fordham complained to the Building Inspector that the defendants were storing materials at the Locus that had not been authorized by the 1995 Business Storage Permit. [Note 18] He additionally complained there was excessive usage of the property that is not allowed by the permit. . . . [and] is inappropriate in a residential zone . . . . [Note 19]
12. The Building Inspector ordered the Buteras to remove from the Locus any materials not authorized under the 1995 Business Storage Permit. [Note 20] The defendants appealed the Building Inspectors determination. Simultaneously therewith, they requested that the Board expand the scope of the 1995 Business Storage Permit to provide for additional storage. [Note 21]
13. On July 14, 2003, the Board granted the defendants an expanded Business Storage Permit (2003 Business Storage Permit). [Note 22] The plaintiff appealed that decision to the Land Court, initiating the instant action. [Note 23]
14. In 2009, this court annulled the Boards 2003 decision and remanded the matter for consideration of additional Bylaw provisions and G.L. c. 40A, § 9 (2009 Remand Order). [Note 24]
15. On September 14, 2009, the Board, in its Remand Decision, unanimously affirmed its earlier 2003 Decision and granted the defendants an expanded Business Storage Permit (2009 Business Storage Permit). This permit includes, inter alia, permission to store: two (2) four-cylinder trucks, two (2) pickup trucks, trailers, two (2) snow plows, and various other landscaping products, materials, and equipment. [Note 25] The 2009 Business Storage Permit authorizes the Buteras to place on the Premises, move around and rearrange, and remove from the Premises, the permitted vehicles, materials, supplies, and equipment. It additionally requires that, with the exception of specifically enumerated items, the other vehicles, equipment, material and supplies related to Petitioners business shall be stored most of the time inside the barn, lean-to [Shed] or tent [Tarp] situated on the Premises. [Note 26]
Description of the Locus / Screening at the Boundaries
16. NORTHERN PROPERTY LINE / ROUTE 30:
Route 30 abuts the Locus along its northern property line. On the right side of the Locus, as viewed from Route 30, the driveway is screened by a stone wall, behind which stands a row of Canadian Hemlocks approximately twenty (20) feet tall and 8-9 inches thick. [Note 27] A large Blue Spruce shields the left side of the Locus when approaching from the east. Although it is possible at a certain point on Route 30 to see directly down the defendants driveway to the Locus southern boundary line, the Barn, Shed, and Tarp are not visible from the street, nor are the defendants trucks. [Note 28]
17. WESTERN PROPERTY LINE:
To the west, the Locus abuts the property of the Buteras neighbors, the Peters. Starting at the front of the Buteras property toward Route 30, a row of trees including hemlocks as well as shrubs run approximately two thirds of the way along the western boundary, shielding the property from the view of the Peters. [Note 29] Mr. Peters described the trees as being at least forty (40) feet high. [Note 30] For much of the remainder of the western boundary line, past the trees and shrubs, is a stone wall that continues along the boundary line. The stone wall does not go all the way to the end of that boundary line. On the Peters property, there are individual trees ten (10) to twelve (12) feet high that lean over the stone wall. [Note 31] The defendants have not put up a fence along this boundary, as Mr. Peters prefers the natural greenery. [Note 32]
18. EASTERN PROPERTY LINE:
Heavy vegetation and trees run along the entire length of the Locus eastern boundary, including eighty-eight (88) shrubs planted by defendantsat plaintiffs requestseveral years ago. [Note 33] These additional shrubs are now ten (10) to twelve (12) feet tall. During the winter months, the Barn, Shed, and Tarp are visible from the plaintiffs driveway owing to the thinning out of the natural greenery. [Note 34]
19. INTERIOR SCREENING:
A row of trees and shrubs in the interior portion of the Buteras property provides further screening from Route 30 for the defendants Barn, Shed, Tarp and stored trucks. [Note 35]
Dispute Concerning the Fordham / Butera Common Boundary and Fence
20. SOUTHERN BOUNDARY LINE [Note 36] / COMMON BOUNDARY OF FORDHAM AND BUTERA:
An eight-foot fence runs along the Fordham / Butera common rear boundary line. The parties disagree whether the fence extends the entire length of the boundary line. The plaintiff argues that there is a gap running from the end of the Buteras fence to the western boundary of the Buteras lot. He asserts that, as a consequence, he is able to view the Buteras business storage activities from his own property. Fordham testified that it was from this space that he took photographs of the defendants business storage activities. [Note 37] However, when questioned with regard to the length of the fence, Mr. Butera explained that the fence runs exactly from end to end [of the common boundary]. [Note 38]
On cross-examination, Mr. Butera acknowledged the existence of a gap at the southwest corner of his property, i.e. not on the litigants common boundary line but on the boundary between the Buteras and their next-door neighbors, the Peters. As to this boundary between the Peters and Buteras properties, Mr. Butera testified as follows:
Q: [A]s previously testified, the stones mark the boundary. That leaves space between the fence and the stones; is that correct?
A: Yeah, theres
Q: How much?
A: I dont know
Q: Ten feet?
A: Six to 10, maybe, I dont know. [Note 39]
The defendants stone wall does not extend along the entire distance of the western boundary line that the Buteras share with the Peters. As a result, there is a gap in screening from the end of the stone wall to the Buteras fence. [Note 40]
This court is satisfied that, more likely than not, that the only gap at issue lies along the western boundary line between the Buteras and the Peters properties. As for any alleged gap along the Fordham and Buteras common boundary line, this court credits the testimony of Mr. Butera that his fence extends the full length of that boundary. This conclusion finds support in several photographic exhibits showing the fence extending the length of the common boundary. [Note 41] Although the plaintiff may have been able to see onto the defendants property, he could do so standing up to several hundred feet from his own dwelling at his shared boundary with the Peters [Note 42] and peering through the gap at the Butera / Peters common boundary line.
21. Since the Boards 2009 Decision the defendants have planted ten (10) additional arborvitaes, which serve to extend the Buteras screening onto the Peters property. The arborvitaes stand approximately eight (8) feet tall. The Buteras planted them at the plaintiffs request and with the Peters permission. [Note 43] [Note 44] Consequently, due to the eight-foot high fence and the additional arborvitaes extending in linear fashion over the Butera / Peters common boundary [Note 45] and onto the Peters property, this court is satisfied that the defendants business storage is sufficiently screened along the Fordham / Butera common boundary line. [Note 46]
Landscaping Business Principally Carried On and Essential (Section V.B.5)
22. Mr. Butera has been a landscaper for forty-four (44) years. This court credits his estimate that roughly 75% percent of the properties in Weston are professionally landscaped. [Note 47]
23. The 2012 Weston phonebook includes twelve (12) pages of landscaping advertisements. [Note 48]
24. Mr. Butera is the sole owner of the landscaping business, which maintains accounts in Weston, Wellesley, Wayland, Lexington, and Newton. [Note 49] He has more accounts in Weston than in any other single town and he spends more time landscaping in Weston than in any other town. He maintains approximately thirty-nine (39) acres in Weston versus a combined total of eighteen (18) acres in the other four (4) towns. [Note 50] The Weston accounts also generate concomitantly more income than do those of any other single town. [Note 51]
25. The defendants business also provides snow removal services. Butera plows more than twenty driveways in Weston during the winter months. [Note 52]
Storage Activities at the Locus
26. The defendants customarily store two (2) pickup trucks at the Locus in the space between the Barn and the row of trees to the north of the Barn. [Note 53] The defendants also own a third pickup truck. Their son, an employee of the landscaping business, uses this truck to commute to and from the Locus. [Note 54] The third pickup truck is not used in the businessit is parked with the other employee vehicles during the day and is not stored on the Locus overnight. [Note 55]
27. The defendants also store two (2) four-cylinder trucks at the Locus. One truck is rated to carry a payload of approximately 1.375 tons, the other approximately 1.745 tons. [Note 56] The defendants usually keep one four-cylinder truck inside the Barn with the door closed and the other inside the Shed, which has no door. [Note 57] The nose of this truck protrudes roughly three (3) feet outside of the Shed.
28. At times, the defendants park their trucks at places on the property other than their customary storage spaces. [Note 58] Mr. Butera moves the trucks in order to wash them or to attach or unhitch a trailer. [Note 59] If the trucks are moved during the day for some reason, they are nonetheless stored in their customary storage spaces at night. [Note 60]
29. The defendants business has seven (7) employees, although the 2009 Business Storage Permit limits employee parking at the Locus to five (5) vehicles per day. [Note 61] The employees carpool to work. Three (3) employee vehicles are parked in the front of the driveway directly behind the Canadian hemlocks and stone wall. Any additional vehicles park at the rear of the propertyeither in the space where the pickups are stored or behind the Tarp. [Note 62] The employee vehicles are parked at the Locus for the duration of the business day.
30. Though the defendants are permitted to store bark mulch at the Locus under the 2009 Business Storage permit, they moved the mulch operation to a rental property in Natick in or around 2007. [Note 63] Prior to that time, Butera would return to the property one (1) to three (3) times per day to load mulch onto his trucks. [Note 64]
31. The defendants keep several small piles of wood chips, loam, and topsoil towards the rear of the Locus for personal use. [Note 65]
Business Activities at the Locus
32. The defendants make business-related phone calls and do the bookkeeping inside their home. [Note 66] But for the defendants themselves, the employees do not participate in either task. Customers do not come to the Locus.
33. Employees do no work at the Locus, save for the twice weekly landscaping of the defendants property. Such landscaping is consistent with the services provided to the business customers. [Note 67]
34. Employees arrive daily at the Locus to pickup and return the trucks stored on the premises. They arrive at approximately 6:45AM and depart in company trucks soon thereafter. They return at the end of the day between 4:45PM and 5:00PM departing in their own cars within a few minutes. [Note 68] This court credits Buteras testimony that, during these vehicle transition periods, the employees do no work at the Locus nor are the business vehicles allowed to idle. [Note 69]
Buteras testimony gains support from that of his abutter to the west, Edward Peters, Jr. (Peters). Peters testified that Mr. Buteras employees show up just a little before 7:00 in the morning . . . [t]hey get into the vehicles that they use in their work and exit the property. [Note 70] He testified further that, upon their evening return, the employees pull in towards the back of the property, they park the vehicles, and the employees leave rather quickly, as I think most people do at the end of the work day. [Note 71]
35. To the extent any tools or equipment on the trucks need to be changed in preparation for the next days work, Mr. Butera does this on his own, as necessary, without the help of employees. [Note 72] Tools are changed infrequently, however. [Note 73] Likewise, fertilizer is already stored on the trucks and rarely needs to be moved to another vehicle. [Note 74]
36. The Butera and Fordham properties are situated between Route 30 and the Massachusetts Turnpike (I-90). [Note 75] The Locus abuts Route 30, a road heavily traveled by personal vehicles, trucks, buses, and tractor-trailers. [Note 76] During the morning rush hour, traffic backs up in front of the properties, such as the Locus, which are situated along Route 30. As a result, there is a significant amount of noise. [Note 77] The trucks passing on Route 30 sometimes vibrate so loudly as to cause the defendants driveway to vibrate. The Massachusetts Turnpike, located south of the Locus, also creates a significant amount of noise that can be heard both from the Locus and the Peters property alike. [Note 78]
37. The surrounding neighborhood has numerous non-residential properties and sources of noise, including Weston High School, the Middle School, their respective athletic fields; an equestrian center located across the street from the Locus; and a landscaping debris dumping facility with trucks coming and going throughout the day and from which odors emanate. [Note 79]
Effect on the Neighborhood
38. No unnatural odors or discernible dust emanates the defendants property. [Note 80] Extra gasoline for the vehicles is stored on the landscaping trailers inside custom-made, sealed boxes. [Note 81]
39. While Route 30 is associated with heavy traffic and noise, the defendants business produces little noise or additional traffic. Mr. Peters testified that just the traffic noise on Route 30 exceeds the noise that Mr. Butera makes in the course of leaving his property. [Note 82] Although the Peters home is much closer to the Locus than is that of Mr. Fordham, Mr. Peters testified that the only thing you could really characterize as much noise . . . [is the] maybe one day a week when Mr. Butera has his crew do maintenance on his own property. [Note 83] He further noted: Overall, the presence of the [defendants] and their business has had little or no effect on my life whatsoever . . . [Note 84]
STANDARD OF REVIEW
Although not specifically delineated a special permit under the Town of Weston Bylaw, [Note 85] this court concluded in its 2009 Remand Order that a Business Storage Permit is akin to a special permit under G.L. c. 40A, § 9. [Note 86] Consequently, the standard of review applicable to a special permit has been applied herein.
Under G.L. c. 40A, § 17, the court is obliged to finds facts de novo. See Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 558 (1954). At the same time, it may give no weight to those facts found by the Board below. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); Sheehan v. Zoning Bd. of Appeals of Plymouth, 65 Mass. App. Ct. 52 , 56 (2005) ([The trial court] judge is required to hear the matter de novo and must independently find that each statutory or bylaw condition is met.). The burden of going forward with evidence rests with the party claiming the special permit was lawfully granted. Tebo v. Bd. of Appeals of Shrewsbury, 22 Mass. App. Ct. 618 , 626 (1986). Although its review of the facts must be de novo, [j]udicial review is nonetheless circumscribed: the decision of the board cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary. Roberts v. Southwestern Bell Mobile Systems, Inc., 429 Mass. 478 , 486 (1999), citing Gulf Oil Corp. v. Bd. of Appeals of Framingham, 355 Mass. 275 , 277 (1969).
[J]udicial review typically requires two principal inquiries, one of which involves an almost purely legal analysis and the other of which involves a highly deferential bow to local control over community planning. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). Thus, the court is to use a legal analysis . . . to decide whether the boards decision was based on a legally untenable ground, or, stated in a less conclusory form, [was based] on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws. Id., citing, e.g., MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). As part of this inquiry, not only must the reviewing court evaluate the standard employed by the board, but also whether the board made affirmative finding[s] as to the existence of each condition of the statute or by-law required for the granting of the . . . special permit. Vazza Properties v. City Council of Woburn, 1 Mass. App. Ct. 308 , 311 (1973).
Under this first phase of review, the decisional law concerning the interpretation of zoning bylaws provides the relevant and applicable standards. In general, zoning bylaws must be construed reasonably. Green v. Bd. of Appeals of Norwood, 358 Mass. 253 , 258 (1970). Where an operative term remains undefined by a zoning bylaw, the meaning of a word or phrase is a question of law . . . to be determined by the ordinary principles of statutory construction. Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981) (citations omitted). Where the language of a [bylaw] is clear and unambiguous, it is conclusive as to legislative intent . . . and the courts enforce [it] according to its plain wording . . . which [they] are constrained to follow so long as its application would not lead to an absurd result. Martha's Vineyard Land Bank Commn v. Bd. of Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 27-28 (2004) (internal quotations and citations omitted).
Where ambiguities exist, however, the court must interpret the bylaw according to the intent of the [municipal legislative body] ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated. Moloney v. Boston Five Cents Savings Bank FSB., 422 Mass. 431 , 433 (1996), quoting Telestky v. Wight, 395 Mass. 868 , 872-73 (1985) (internal quotations omitted). The court must derive the words usual and accepted meaning from sources presumably known to the bylaws enactors, such as their use in other legal contexts and dictionary definitions. Framingham Clinic, 382 Mass. at 290.
Assuming the board has applied the proper legal standard, a court must then determine, based on its own fact-finding, whether any rational board could reach such a conclusion. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 74 (2003). This step is a highly deferential bow to local control over community planning. Id.; Wolfman v. Bd. of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983) (noting that a reviewing court concerns itself with the validity but not the wisdom of the boards actions.).
Nonetheless, [d]espite the heavy momentum in favor of affirmation of local zoning action, the applicable principles are of judicial deference and restraint, not abdication. Natl Amusements, Inc. v. City of Boston, 29 Mass. App. Ct. 305 , 310 (1990). Where the boards interpretation [of its bylaw] is reasonable . . . the court should not substitute its own judgment. Tanner v. Bd. of Appeals of Boxford, 61 Mass. App. Ct. 647 , 649 (2004). This court, however, will not hesitate to annul a local zoning decision that exceeds the authority of a local zoning board under G.L. c. 40A, § 17; Tanner, 61 Mass. App. Ct. at 649 (The boards interpretation is entitled to some measure of deference, [but it] . . . is not dispositive.) (internal citations omitted).
The instant action centers on the validity of the Boards 2009 Decision in light of the five (5) additional statutory and Bylaw provisions that were the subject of this courts 2009 Remand Order. In addition to Bylaw Section V.B.5, the Board was to consider the following:
(1) Massachusetts General Laws c. 40A, § 9;
(2) Section I.A (now § V.A.1) of the Bylaw;
(3) Section I.B (now § V.A.2) of the Bylaw;
(4) Section V.A.2 of the Bylaw; and
(5) Section V.B.1.f (now V.B.1.e) conditions that do not specifically relate to storage. [Note 87]
The Board analyzed each section (as in effect in July 2003) as directed by this court. [Note 88] Predicated on the following analysis, this court concludes that the Boards decision to grant the 2009 expanded Business Storage Permit was not legally untenable, arbitrary, whimsical, or capricious.
I. Bylaw Section V.B.5 (Business Storage Provision)
As noted supra, a Business Storage Permit is in essential form a G.L. c. 40A, § 9 special permit for the limited use of storing business related equipment, materials, supplies and vehicles on residential property. See Fordham v. Butera, 17 LCR 531 , 528 (2009) (Misc. Case No. 291635) (Grossman, J.); see also Duteau v. Zoning Bd. of Appeals, 47 Mass. App. Ct. 664 , 667-68 (1999) (Special permits govern that class of uses that lie between those that are prohibited in all detail, and those that, because they comply with the zoning code in all detail, are allowed as of right.); Martin R. Healy, Massachusetts Zoning Manual, § 8.1.1 (5th ed. 2010) (A special permit allows a use . . . on a parcel of land that is not allowed as of right in the applicable zoning district.).
Section V.B.5 provides as follows:
Uses Allowed by Permits
Storage for Commercial and Business Activities: In Single Family Residence Districts the Permit Granting Authority may issue Permits for the storage of vehicles, materials, supplies and equipment in connection with commercial or business activities principally carried on in the Town and providing services essential to the uses of premises permitted in the residence districts . . . [Note 89]
This section places two conditions on the issuance of a Business Storage Permit:
(1) the business activity must be principally carried on in the Town of Weston; and
(2) the services provided must be essential to permitted uses in a residential district. The plaintiff argues that the defendants are unable to satisfy either requirement.
While the Buteras conduct their landscaping business in five (5) area towns, more accounts are located in Weston than any other town. It is also those Weston accounts that generate the most income of any town. Mr. Butera spends the bulk of his time working and otherwise conducting his business in Weston. He services more than twice the acreage in Weston than he does in the other four (4) towns combined. This is due in no small measure to the fact that the lots he services in Weston tend to be larger than those in neighboring towns. Consequently, Butera averages between one (1) to three (3) acres per Weston parcel versus 6,000 to 9,000 square feet per parcel in other area towns. [Note 90] Moreover, as observed supra, the administrative aspect of the Buteras landscaping business is conducted wholly at the defendants Weston home. This court concludes, therefore, that the defendants business is principally carried on in Weston.
The plaintiff next argues that, due to the large number of landscapers in the Weston phone book, the defendants landscaping and snow removal services are not essential as that term appears in Section V.B.5 of the Bylaw. [Note 91] While the word essential is not defined in the Bylaw itself, it is otherwise defined as basic or indispensable; necessary. The American Heritage College Dictionary 478 (4th ed. 2002). Roughly 75% of Weston properties are professionally landscaped. Moreover, the sizeable portion of the phone book dedicated to landscaping services supports the notion that such services may be deemed basic and necessary. [Note 92] The defendants business not only provides landscaping services to Weston residents, but also snow removal services to more than twenty (20) Weston homes in the winter season. [Note 93] In addition Mr. Butera has come to the aid of his neighbors on numerous occasions during the winter to offer assistance with snow and ice removal. [Note 94] The Board could reasonably have concluded, as it did, that landscaping and snow removal constitute essential services for purposes of Section V.B.5 of the Bylaw. [Note 95] Under the circumstances pertaining herein, this court is of the view that the Board is entitled to a level of deference in its determination that such services are essential to uses permitted within the Towns residential district. See Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003).
II. Bylaw Section V.B.1.f (Non-Customary Home Occupation Conditions)
On remand, the Board also examined the home occupation conditions of Bylaw Section V.B.1.f (now V.B.1.e). The interplay between Sections V.B.5 and V.B.1.f is particularly relevant, as both sections concern uses within Single Family Residence Districts. Section V.B.1 describes By-Right Uses. Subsection (f) thereof authorizes [an]y occupation or occupations conducted by a person residing in the dwelling, other than Customary Home Occupations, provided certain conditions are met. [Note 96] In the 2009 Remand Order, this court determined that the defendants landscaping business constituted a home occupation other than a customary home occupation (thus, a non- customary home occupation). See Fordham v. Butera, 17 LCR 525 , 532 (2009) (Misc. Case No. 291635) (Grossman, J.).
A non-customary home occupation is subject to eleven (11) conditions under Section V.B.1.f. Those conditions limit the manner in which these occupations may be conducted within a Single Family Residence District. Of significance, the last of those conditions, f(xi), provides that where required, there is compliance with Section V, Subsection B.5. Under Subsection B.5 the Board may issue permits for the storage of vehicles, materials, supplies and equipment in connection with commercial or business activities. A Business Storage Permit may issue only for commercial and business related storage in a Single Family Residence District. The 2009 Remand Order addressed the possible divergence in the application of Section V.B.5 and Section V.B.1.f as follows:
[B]ecause § V.B.5, by its express language relates solely to storage, it authorizes the Board to diverge from the § V.B.1.f conditions, only to the extent that those § V.B.1.f conditions serve to limit storage on the premises. . . . [T]he conditions found in § V.B.1.f that do not specifically relate to storage remain in full force and effect. Fordham v. Butera, 17 LCR 525 , 532 (2009) (Misc Case No. 291635) (Grossman, J.).
Thus, the defendants must comply with those Section V.B.1.f conditions not effectively superseded by Section V.B.5. For his part, the plaintiff alleges that the defendants cannot satisfy subsections V.B.1.f (i), (iv), (vi), and (vii). [Note 97] Each provision will be addressed in turn below: [Note 98]
A. Subsection V.B.1.f(i): That the occupation or occupations are conducted totally within the dwelling and not in an accessory structure
The Board found that the defendants conducted their business completely within the dwelling in compliance with subsection V.B.1.f(i). Customers do not visit the Locus and the defendants administrative business tasks take place uniformly within the Buteras residence. [Note 99] The accessory structures are used for business storage only in accordance with the Business Storage Permit.
The plaintiff takes issue with the substantial activity [that] occurs in the yard next to the structures. [Note 100] He alleges that the trucks and employees begin and end the day there, and substantial work is done daily by Mr. Butera, including two trips to Natick to pick up mulch and that [t]hese activities preclude a finding that the business is conducted totally within the dwelling. [Note 101]
Employees arrive at the Locus at the beginning and end of their shifts to switch vehicles. These transition periods generally do not span more than fifteen (15) minutes and employees exit the premises quickly after switching vehicles. [Note 102] This court credits the testimony of Mr. Butera that he does not direct his employees to do work at the Locus during these transition periods, nor does he allow them to leave the vehicles idling in the driveway. Mr. Peters, in testimony which this court credits, lends support to the conclusion that employees are present at the Locus for a brief time only. Moreover, a Business Storage Permit specifically provides for vehicle storage on a residential property. It follows logically that at some point retrieval of the stored business vehicles is necessary. [Note 103] The fact that employees arrive twice daily to switch vehicles does not constitute conducting an occupation outside the dwelling within the meaning of the subsection. [Note 104]
Likewise, Mr. Buteras activities at the Locus do not violate the subsection. Mr. Butera sometimes hoses down his vehicles, attaches or unhitches a trailer, or occasionally changes tools on his trucks at the Locus. These activities are incidental to the permitted business storage. Though the plaintiff takes particular issue with the changing of tools, this court credits Mr. Buteras testimony that the need to do so arises infrequently. [Note 105] Moreover, much like the retrieval of business vehicles discussed supra, logic would seem to dictate thatat some pointcertain tools may need to be exchanged or retrieved from the Locus for use in the off-site landscaping work.
Lastly, although the defendants requested permission to store bark mulch at the Locus and the 2009 Business Storage Permit allows them to do so, testimony at trial indicated that the Buteras have maintained their mulch operation at a site in the Town of Natick since 2007. [Note 106] Prior to 2007, Mr. Butera returned to the Locus between one (1) to three (3) times daily during the mulch-laying season to load the mulch onto his trucks. Since 2007, however, those trips are made to the Natick site only. [Note 107] Were the mulch to be returned to the Locus, the frequent return trips might potentially pose a problem with regard to subsection V.B.1.f(i) compliance. [Note 108] However, nothing in the trial recorded indicated the defendants intention to return the mulch to the Locus and Mr. Butera testified that he wishes to keep it in Natick. [Note 109] Accordingly, this court will treat the mulch loading aspect of the business as having been transferred off-site on a permanent basis.
This court is satisfied that the landscaping business is conducted totally within the dwelling as required by subsection V.B.1.f(i). The accessory structures are used solely for permissible business storage. Other activities that take place at the Locus are merely incidental to the permitted business storage and not in violation of V.B.1.f(i).
B. Subsection V.B.1.f(iv): That regardless of the number of occupations conducted in the dwelling, no more than one vehicle related to the occupation or occupations shall be regularly on the premises whether or not garaged
The defendants have one car and one pickup truck for personal use. [Note 110] They currently store three (3) additional business vehicles at the Locus. [Note 111] Section V.B.5 specifically authorizes storage of vehicles . . . in connection with commercial or business activities . . . . [Note 112] Thus, although subsection V.B.1.f(iv) provides that only one vehicle related to the occupation shall be regularly on the premises, Section V.B.5 permits storage of multiple business vehicles and thereby supersedes subsection V.B.1.f(iv) upon issuance of an appropriate Business Storage Permit.
The Board determined that subsection V.B.1.f(iv) did not encompass employee vehicles. This court is satisfied that the phrase vehicle related to the occupation in subsection V.B.1.f(iv) serves to limit only the number of business vehicles and does not apply to employees personal vehicles. See Owens v. Bd. of Appeals of Belmont, 11 Mass. App. Ct. 994 , 995 (1981) (noting that bylaw provisions should be construed in the context of the by-law as a whole and given a sensible and practical meaning within that context.); Livoli v. Zoning Bd. of Appeals, 42 Mass. App. Ct. 921 , 922 (1997) (We are not to look at provisions of a by-law in isolation . . . .); see also Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 478 (1986).
Subsection V.B.1.f(iii) limits use of an accessory structure . . . for parking one vehicle used for the occupation . . . Subsection V.B.1.f(iv) provides that regardless of the number of occupations in the dwelling, no more than one vehicle related to the occupation[s] . . . shall be regularly on the premises whether or not garaged. Though each is phrased somewhat differently, the one vehicle allowed on the premises under Section V.B.1.f is limited to an occupational vehicle, whether or not garaged. Subsection V.B.1.f(v) states: That vehicle shall be rated to carry no more than two tons. [Note 113] When reading V.B.1.f(iv)s one vehicle reference in conjunction with the same in other V.B.1.f subsections, it is clear that the vehicle so referenced is a business vehicle.
Subsection V.B.1.f(iv) does not encompass or limit other vehicles that may be on the premises as a consequence of the occupation. [Note 114] The latter is governed by subsection V.B.1.f(viii). [Note 115]
Subsection V.B.1.f(viii) [Note 116] permits . . .traffic generated by such occupation [to the extent it] is not inconsistent with traffic usually associated with a single family residence and there is adequate parking on the lot screened from abutting properties. [Note 117] There would be no need to require adequate parking under subsection V.B.1.f(viii) if the limit on vehicles, in the absence of a Business Storage Permit, were one vehicle only. [Note 118] In sum, personal vehicles belonging to the employees are not directly used in the Buteras landscaping business. They may best be characterized as personal vehicles used for commuting purposes. In this sense, they are more akin to traffic and parking associated with a home occupation under subsection V.B.1.f(viii) and are not themselves business vehicles. The Board could reasonably have found that the defendants satisfied subsection V.B.1.f(iv) and that Section V.B.5 supersedes its one-vehicle limitation, such that storage of multiple business vehicles at the Locus is permissible.
C. Subsection V.B.1.f(vi): That there shall be no visible exterior storage of material or equipment and no exterior indication from the boundaries of the premises of such use or variation from the residential character of the area
Subsection V.B.1.f(vi) contains two requirements. First, there must be no visible exterior storage of material or equipment. This provision directly relates to storage and may therefore be preempted by a Business Storage Permit under Section V.B.5. However, the first subsection V.B.1.f(vi) requirement must be read in conjunction with the second requirement that there is no exterior indication from the boundaries of the premises of such use or variation from the residential character of the area. The effect of these provisions is that exterior storage visible while on the Locus may be allowed under Section V.B.5 (e.g. the trucks stored between the Barn and the row of trees and shrubs), provided there is no exterior indication of business storage or a home occupation from the Locus boundaries. A central issue before this court is whether the defendants business storage use of the Locus violates the second subpart of subsection V.B.1.f (vi).
The defendants maintain that they have properly screened the premises in compliance with the intent of this condition and that the only way to completely screen any property from all boundaries is to install an eight-foot tall, solid fence or wall encircling all four sides of the premises. [Note 119] However, the plaintiff, advancing a literal reading of the Bylaw, asserts that the defendants are in violation of subsection V.B.1.f(vi) because he can observe business storage from three distinct points: (a) the Fordham / Butera common rearyard boundary; (b) the plaintiffs driveway; and (c) from Route 30 while driving past the front of the Butera residence. [Note 120] Each of these contentions will be discussed in turn, infra.
In general, [z]oning by-laws must be construed reasonably. Green v. Bd. of Appeals of Norwood, 358 Mass. 253 , 258 (1970). Where the bylaws language is clear an unambiguous, it is conclusive as to legislative intent . . . and the courts enforce [it] according to its plain wording, which [they are] constrained to follow . . . so long as its application would not lead to an absurd result. Marthas Vineyard Land Bank Commn v. Bd. of Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 26-28 (2004) (internal quotations and citations omitted). Thus, the court applies the plain meaning of the words in a statute, or as here, a bylaw unless a literal construction would yield an absurd or unworkable result. See Commonwealth v. Millican, 449 Mass. 298 , 300-01 (2007).
In the instant case, the pertinent language is no exterior indication. Exterior is defined as outer, external, whereas indication is defined as something that serves to indicate; a sign. The American Heritage College Dictionary 495 & 704 (4th ed. 2002). A literal reading of the Bylaw would seem to prohibit any indication from the Locus boundaries of business storage use, inasmuch as such use would derogate from the residential character of the area. However, a literal enforcement of the phrase no exterior indication of the sort that the plaintiff urges upon this court would lead to an unworkable or absurd result. That is because it would be nearly impossible to hermetically seal the Locus from one making a determined effort to view business storage use on an adjoining residential lot. Construing the Bylaw in a reasonable, workable fashion, this court is satisfied that the defendants have complied with this condition.
The defendants have gone to great lengths to shield their business storage from the view of their neighbors. From the Locus northern boundary (along Route 30), the defendants trucks, materials, and equipment are not readily visible. [Note 121] Although the plaintiff complains that he can observe employee parking while driving west on Route 30, this court concurs with the defendants that if a passerby is able to glimpse one of these employee vehicles in passing, the appearance is nothing more than a residential vehicle parked in a driveway. [Note 122] Such a view is not inconsistent with the residential character of the area; it is precisely what is envisioned under the Bylaw. The employee parking area is adequately screened by the twenty-foot tall, 8-9 foot thick hemlock trees and stone wall separating it from Route 30. See supra, Finding of Fact ¶ 16.
In addition, the defendants have satisfactorily screened the parties common boundary such that business storage is not visible at this location. The eight (8) foot fence extends the length of the Fordham / Butera common boundary. Since the Boards 2009 decision, the defendants have planted ten (10) additional arborvitaes, which extend well onto the neighboring Peters property and shield the plaintiffs view even from the boundary he shares with the Peters. See Findings of Fact ¶¶ 20, 21; Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953) (Upon appeal . . . [the trial judge] is not restricted to the evidence that was introduced before the board.). The plaintiff testified that, despite the trees, I can still see at the boundary through those trees whatever I want to whenever I want to. [Note 123] While the plaintiff mayquite literallyglean an exterior indication of business storage, he must make an effort to do so, i.e. by traveling the distance from his home across his wooded lot to the parties common boundary to peer onto the Locus through the dense arborvitaes on the Peters property. The plaintiff testified, when speaking of the visibility from the boundaries, that I have as a generality gone looking for some of that [exterior indications from the boundaries]. . . . [Note 124] It is noteworthy that the direct abutters to the west of the Buteras lot, the Peters, prefer natural greenery rather than a fence at the southwest corner of the Locus. [Note 125] Based upon the facts gleaned from the trial record, this court is satisfied that the eight- foot fence and arborvitaes adequately and reasonably screen the Buteras boundary either from the common Fordham / Butera boundary or from the southwesterly boundary shared with the Peters.
The plaintiff also alleges that he is able to observe business storage from his driveway, which abuts 526 South Avenue (ONeill Property). [Note 126] The Buteras, in a further effort to placate the plaintiff, added eighty-eight (88) shrubs several years ago along this now heavily vegetated boundary. Those plantings are now ten (10) to twelve (12) feet tall. See supra, Finding of Fact ¶ 18. The photographic evidence submitted by defendants, particularly Exhibit 34, depicts this boundary screened by a barrier of trees and shrubs. Of import, the plaintiffs driveway is located some distance from the Locus. The Fordham driveway shares a common boundary with the ONeill property, not with the Locus. [Note 127] Although the plaintiff avers that he can see a wide array of business storage from the driveway location, his own photographic exhibit undercuts his argument. In plaintiffs Exhibit 70, dated September 2009, even though the trees have begun to shed their leaves, the only things visible on the Locus from the plaintiffs driveway are the Barn, the Shed and the Tarp. There are no visible indications of business storage. Though the plaintiff may be able to see onto the Locus to a greater extent in mid-winter when the trees are bare, [Note 128] the only way to prevent all potential evidence of business storage would be, as noted supra, to surround the Butera property with a tall fence or wall. However, such action would detract from the residential character of the area in a manner that would be contrary to the language and intent of subsection V.B.1.f(vi).
This court is satisfied that the Buteras have reasonably, and in a manner consistent with the Bylaw, screened exterior indications of business storage from the Fordham driveway utilizing a dense vegetative barrier of trees and shrubs. Lastly, to the extent the plaintiff relies on a handwritten chart and daily diary which purports to detail the business storage he has observed at the Locus, this court affords minimal or no weight to these handwritten exhibits, as there was insufficient foundation provided at trial. [Note 129] When asked on cross-examination to provide greater detail regarding certain general entries made as part of this handwritten record, the plaintiff was unable do so. [Note 130]
D. Subsection V.B.1.f(vii): That not more than three persons regularly engaged in the occupation or occupations, whether full or part-time, in addition to the occupant shall work at the premises at one time;
The Board found that the defendants operation satisfies this condition. As has been observed, only two people, Mr. and Mrs. Butera, engage directly in the occupation at the Locus. The plaintiff testified, however: . . . I am aware of five employees there [at the Locus] on a regular basis. [Note 131] He further avers in his post-trial brief that [s]even employees are regularly engaged part-time . . . at one-time, up to an hour and a half each pursuant to the Boards decision. [Note 132] For substantially the same reasons discussed supra in connection with subsection V.B.1.f (i), this court concludes that the employees prompt exchange of vehicles during the allotted time periods does not constitute engaging in an occupation.
The only work that employees regularly engage in at the Locus is the landscaping of the defendants yard, and this service is consistent with the services provided to the defendants customers. Mr. Butera testified his employees do exactly what we do for everybody else on my own home, too. [Note 133] Subsection V.B.1.f(vii) may not reasonably be interpreted so as to preclude the Buteras from having their lawn maintained by their own employees.
III. By-law Section I.B (Nuisance Provision)
In addition to the Business Storage and Home Occupation provisions of the Bylaw, the Board addressed Section I.B (now V.A.2), which provides as follows:
Notwithstanding any other provision of this Zoning By-Law, any building or structure or any use of any building, structure, or premises which is injurious, obnoxious, offensive, dangerous, or a nuisance to the community or to the neighborhood through noise, vibration, concussion, odors, fumes, smoke, gases, dust, harmful fluids, or substances, danger of fire or explosion, or other objectionable feature detrimental to the community or neighborhood health, safety, convenience, morals or welfare, is prohibited. [Note 134]
The Board determined that neither Petitioners buildings nor their requested use is injurious, obnoxious, offensive, dangerous, or a nuisance to the community or neighborhood through any of the means listed in the above Bylaw provision. [Note 135]
There are no unnatural odors or dust emanating from the property. This conclusion is supported by documentary evidence submitted by the defendants neighbors. [Note 136] The defendants store a small amount of gasoline on the trailers as may be necessary to operate their lawn maintenance equipment. However, Mr. Butera testified that, as a safety measure, he paid a significant sum to have a welder install sealed, special containers on his trailers to contain the gasoline. [Note 137] Otherwise, no dangerous materials are stored onsite. This court is satisfied that the Buteras business storage is in no way detrimental to health, safety, convenience, morals, or welfare of the neighborhood or community.
The plaintiff objects to the alleged noise related to the Buteras business storage at the Locus. However, the Locus directly abuts a heavily trafficked roadway (Route 30), which produces a significant amount of noise, especially so during the normal commuting periods. Large trucks, tractor-trailers, and the like are frequently backed up on this road during rush hour. Mr. Peters, the Buteras immediateabutter to the west, testified that in comparison to noise from Route 30 in the morning, [t]here are times when thejust the traffic noise on Route 30 exceeds the noise that Mr. Butera makes in the course of leaving his property. [Note 138] Mr. Peters testified concerning the level of noise emanating at night from the Locus:
Q: Have you ever been aware of any extended conversations or noise coming from that property [the Locus] at the end of the day once the vehicles come back to the property?
A: No. The only thing you could really characterize as much noise are [sic] the maybe one day a week when Mr. Butera has his crew do maintenance on his own property, mowing the lawn, blowing off the driveway, that type of thing. [Note 139]
In contrast to Mr. Peters property, the Fordhams parcel is heavily wooded and his dwelling is located a greater distance from the Locus as well as from the activities complained of. Although Fordham finds the alleged noise objectionable, the letters of other neighbors submitted into evidence lend support to the Peters testimony. For instance, Tom Chin, who lives directly across the street from the defendants stated: [W]e have never experienced any loud noise generated from the heavy equipment from his property. [Note 140] On all the relevant evidence, this court concludes that the defendants business storage use neither creates any objectionable noise nor does it otherwise violate the so-called nuisance provision, Section I.B of the Bylaw.
IV. Section V.A.2 (Prohibition on Use Variances)
The plaintiff appears to argue that the defendants require a use variance if they are to store business related items on the Locus. Section V.A.2 of the Bylaw provides that [n]o use variances may be granted under this Zoning By-law. [Note 141] The Board determined that the By-law specifically allows, by permit, the use requested by Petitioners. [Note 142]
The effect of a variance is to give a landowner a license or permit to use his property in a manner otherwise violative of the zoning ordinance . . . and  a use variance in particular permits a use which the ordinance prohibits. Cavanaugh v. DiFlumera, 9 Mass. App. Ct. 396 , 400 (1980) (internal citations omitted); see also Mendes v. Bd. of Appeals of Barnstable, 28 Mass. App. Ct. 527 , 531 (1990) (Variance procedures presuppose the prohibition [by a zoning regulation] of the use sought . . . .); Bobrowski, Handbook of Massachusetts Land Use and Planning Law § 8.04, at 269 (3d. ed. 2011) (A use variance is one which permits a use of land other than those prescribed by the zoning regulations.). However, business storage use in a Single Family Residence District is specifically authorized under Section V.B.5 by means of a Business Storage Permit. It follows that a Business Storage Permit is not a use variance. [Note 143]
VI. Section I.A (Prohibition of Structures or Uses not Expressly Authorized)
Section I.A, as it existed in 2003, provided as follows: Any building or structure, or any use of any building, structure, or premises, not expressly allowed by this Zoning By-law is prohibited. [Note 144] Weston, therefore, employs a prohibitive bylaw. See Tanner v. Bd. of Appeals of Boxford, 61 Mass. App. Ct. 647 , 648 (2004), citing APT Asset Mgmt., Inc. v. Bd. of Appeals of Melrose, 50 Mass. App. Ct. 133 , 138 (2000) (noting that uses not expressly authorized under bylaws terms are prohibited). The 2009 Remand Order required the Board to address whether the issuance of a Business Storage Permit is violative, inter alia, of § I.As proscription of uses not otherwise authorized . . . See Fordham v. Butera, 17 LCR 525 , 531 & n.37, 533 (2009) (Misc Case No. 291635) (Grossman, J.). A Business Storage Permit would be prohibited under this provision only to the extent it were to authorize a use not expressly permitted under the Bylaw. That is not the case here.
A. Both the Business Storage and Home Occupation Uses are Expressly Permitted Under the Weston By-law
As noted supra, both the home occupation and business storage uses are expressly allowed in the Single Family Residence District A. The first is allowed by-right; the second is allowed by means of a Business Storage Permit. As such, neither runs afoul of the Section I.A prohibition. Moreover, Section V.B.5 [Business Storage Permit] does not restrict the site on a given residential lot where the business storage mustor even shouldoccur. The Board, therefore, generally possesses broad latitude in authorizing such storage. As a result, the Board herein had discretion to authorize storage in the Barn, Shed, Tarp, and elsewhere on the Locus, provided such storage also comported with the Bylaws home occupation requirements. The Board committed no error in taking the action that it did.
B. The Business Storage Use of the Barn
The plaintiff continues to object to the business storage use of the Barn on several grounds. First, he argues that the defendants 1991 Variance was limited to personal use of the Barn. As such, the change to business storage use requires a use variance not permitted in the circumstances by G.L. c. 40A, s. 10. [Note 145] Second, he maintains that the 1991 Variance cannot be altered or amended by means of a Business Storage Permit. [Note 146] The plaintiff thus avers that [s]ince the Barn cannot be used in the Plaintiffs business [because of the alleged personal use limitation by the 1991 variance], such use of it must be enjoined, and being integral to the 2009 Permit, the Permit must be set aside. [Note 147] These arguments, however, are unavailing.
G.L. c. 40A, § 10 allows a permit granting authority to impose conditions, safeguards and limitations both of time and of use when issuing variances. In order for conditions on a variance to be binding, they must be set forth in the variance decision itself. Lussier v. Zoning Bd. of Appeals of Peabody, 447 Mass. 531 , 535 (2006); Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188 , 193 (2005) (Purchasers of property or their attorneys are not expected or required to look behind the face of recorded variance decisions to ascertain their effective scope, unless those decisions expressly incorporate other plans or records by reference.). Conditions must be sufficiently definite to apprise both the applicant and the interested landowners of what can and cannot be done with the land. Lussier, 447 Mass. at 535, citing 8 P.J. Rohan, Zoning and Lang Use Controls, § 43.03 (2005). Where variance language is ambiguous, it should be resolved against the holder of the variance. See Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188 , 206 (2005); DiGiovanni v. Bd. of Appeals of Rockport, 19 Mass. App. Ct. 339 , 347 (1985).
In 1991, Mr. Butera represented to the Board in his variance application that he wished to build a barn on [the] property for personal use. [Note 148] The 1991 Variance decision thereafter stated on consideration of the Petitioners expressed needs for the storage of vehicles for personal use, the Board unanimously voted to grant a variance for the construction of the proposed Barn as depicted on the plan filed with the Board . . . providing that the height does not exceed 20 feet from finish grade . . . [Note 149] Assuming arguendo that the 1991 Variance decision was ambiguous, such that reference to Mr. Buteras expressed needs for the storage of vehicles for personal use [Note 150] can be read as a limiting condition, Fordhams argument that the variance was limited to personal use is untimely in the extreme. See G.L. C. 40A, § 17. The change from personal storage to business storage occurred in 1995 when the defendants secured their initial Business Storage Permit. The plaintiff never challenged that decision.
[T]he legislature intended that affected parties should be able to rely on the decisions of boards of appeals and special permit granting authorities which have not been challenged within the limited time period. Iodice v. City of Newton, 397 Mass. 329 , 334 (1986), citing Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617 , 624- 625 (1984). Notably, [t]he statutes of limitations for judicial review of special permit decisions, whether twenty days, or ninety days where there has been a defect in notice, exist to promote finality and to preclude attacks on decisions which have already been tested in the hearing process. Kramer v. Zoning Bd. of Appeals of Somerville, 65 Mass. App. Ct. 186 , 192 (2005).
Moreover, the plaintiff testified at trial that: If I had had any interest in opposing the 1995 application [for a Business Storage Permit], which I didnt because it was so minor, I wouldnt have had much of a basis for doing so. . . . [Note 151] He testified further [that] the difference between 1991 [variance granted] and 1995 [Business Storage Permit granted] is that what [Mr. Buteras] asking in 1995 is I would say minor or trivial, even. [Note 152] The plaintiff was not inclined to appeal the minor change in 1995. He cannot now, at this late juncture, seek to compensate for his failure to timely challenge the 1995 Business Storage Permit. The only matter currently at issue concerns the 2009 Business Storage Permit.
For substantially similar reasons, the plaintiffs argument that the 1991 Variance cannot be altered, see Mendes v. Bd. of Appeals of Barnstable 28 Mass. App. Ct. 527 , 531 (1990), or subsequently amended by a Business Storage Permit, see Huntington v. Hadley Zoning Bd. of Appeals, 12 Mass. App. Ct. 710 , 713-14 & n.4 (1981), is untimely. This argument too, centers on the change that has long since taken place with the grant of the 1995 Business Storage Permit. The Board did not err in authorizing business storage for the Buteras Barn in 2009.
C. The Business Storage Use of the Shed and Tarp
The 2009 Business Storage Permit Decision authorized storage in the Shed and Tarp. The Board conditioned the issuance of the Permit on storage taking place most of the time inside the Barn, Shed, or Tarp. Regarding Section I.A, the issue before the Board, per the 2009 Remand Order, was whether the grant of a Business Storage Permit contravened Section I.A by authorizing a use not expressly allowed under the ByLaw. See Fordham v. Butera, 17 LCR 525 , 531 & n.37, 533 (2009) (Misc. Case No. 291635) (Grossman, J.). In its 2003 Decision, the Board directed that most of the other vehicles, equipment, material, and supplies shall be stored most of the time inside the barn situated in the rear of the property. [Note 153] In so doing, the Board contemplated that some storage would occur outside of the Barn. In its 2009 Remand Decision, the Board identified the long-existing Shed and Tarp as additional storage locations. The Board acted well within its discretion given the broad language appearing in the Bylaw. Lastly, although the Board referenced the Shed and Tarp in passing, the validity of these items was neither an issue to be addressed on remand, nor one that has ever been challenged by means of appropriate administrative action. [Note 154] See G.L. c. 40A, § 7. Under the circumstances, the Board could allow for business storage in both the Shed and the Tarp.
VII. Business Storage Use is Fully Conforming Under the Bylaw
Lastly, while the plaintiff characterizes business storage use as a nonconforming use, he fails to offer support for his position. Relying on this characterization, he argues that G.L. c. 40A, § 6 [Note 155] and Bylaw Section III.A required the Board to make a finding prior to allowing the expansion of the business storage with the issuance of the 2009 Business Storage Permit. The defendants, for their part, argue that issuance of a Business Storage Permit requires no such finding. Section III.A, mirroring language appearing in G.L. c. 40A, § 6, addresses preexisting nonconforming buildings, structures, and uses. In this regard, it provides as follows:
. . . this Zoning By-law shall not apply to existing buildings or structures, nor to the existing use of any building or structure, nor of land to the extent to which it is used at the time of adoption of this Zoning By-law, provided that any change of use thereof, any alteration of a building or structure when the same would amount to extension thereof and any alteration of a building or structure to provide for its use for a purpose or in a manner substantially different from the use to which it was put before alteration, or for its use for the same purpose to a substantially greater extent shall be subject upon application to the finding of the Zoning Board of Appeals as the Special Permit Granting Authority that such change, extension or alteration will not be substantially more detrimental to the neighborhood than the existing nonconforming use or structure. [Note 156]
The Weston Zoning Bylaw defines a nonconforming use as [a] use of a building, structure, or land which does not conform to the use regulations for the district in which it is located. [Note 157] Additionally, to fall within the purview of G.L. c. 40A, § 6, a nonconforming use must predate the zoning bylaw that prohibits it. See Mendes v. Bd. of Appeals of Barnstable, 28 Mass. App. Ct. 527 , 529-30 (1990) (A use achieves the status of nonconformity for statutory purposes if it precedes the coming into being of the zoning regulation which prohibits it.); Barron Chevrolet, Inc. v. Danvers, 419 Mass. 404 , 408 (1995) (A prior nonconforming use is a use that had been allowed as a matter of right under the prior zoning by-laws, but is not allowed under a new by-law.). In essence, the question is not merely whether the use is lawful but how and when it became lawful. Mendes, 28 Mass. App. Ct. at 531.
Business storage use is not a nonconforming use under the Bylaw, as it is expressly permitted in a Single Family Residence District A under Section V.B.5. [Note 158] [Note 159] Moreover, while business storage is not a nonconforming use under the Bylaw, it is also not preexisting in the sense necessary to invoke the finding requirement under G.L. c. 40A, § 6. The defendants business storage use of the Locus does not pre-date any subsequent change in the By-law that prohibits it. See Mendes, 28 Mass. App. Ct. at 530; see, e.g., Hinves v. Commr of Pub. Works of Fall River, 342 Mass. 54 , 54-55 (1961) (noting that operation of grocery store in residential district which pre-dated passage of zoning ordinance prohibiting it was protected as existing nonconforming use). Business storage was permitted in a Single Family Residence District when the defendants first received the 1995 Business Storage Permit. It was likewise a permissible use in 2009. Consequently, the expanded storage allowed under the 2009 Business Storage Permit did not require a finding under G.L. c. 40A, § or Section III.A.
This court concludes that the Boards decision granting the defendants the 2009 Business Storage Permit was neither legally untenable, nor was it arbitrary, whimsical, or capricious. The plaintiff has advanced numerous arguments in his post-trial brief, not a few of which relate to a variance and permits not here at issue. To the extent they have not been addressed herein this court has determined that they do not merit further discussion. The 2009 Decision of the Board of Appeals of the Town of Weston will be affirmed.
Judgment to enter accordingly.
[Note 1] See p. 21 infra.
[Note 2] Amended (Am.) Complaint (Compl.) ¶ 3.
[Note 3] Id. ¶ 2; see also Exs. 8,9. On October 29, 2009, Plaintiff filed a Form of Proposed Amendment, which supplemented the 2003 Amended Complaint and contained additional allegations stemming from the Boards 2009 Decision on the Business Storage Permit.
[Note 4] Am. Compl. ¶ 12; see also Ex. 8. Much of the plaintiffs lot is heavily wooded, save for two-open spacesone near the tennis court, one near the plaintiffs home. See Tr. 2-167:5-15; Ex. 8.
[Note 5] See Ex. 44.
[Note 6] See Tr. 1- 93:13-15.
[Note 7] See Ex. 1. Additionally, based on the plaintiffs representations in his Amended Complaint, ¶ 17, it is clear that he was aware of the defendants variance application at the time.
[Note 8] See Tr. 2-85:22-24; see also Am. Compl. ¶ 17.
[Note 9] See Tr. 1-94:2-8; 189:21 to 190:5. Mr. Butera testified as follows:
Q: . . . How many customers did you have in Weston in 1990 or 1991?
A: I moved to Weston in 1991. I didnt have any.
Q: And in 1995 when you got your business storage permit, how many did you have?
A: I dont recall how many I had, but I had several. But I had my hands full.
Q: Several maximum would be what?
A: . . . Id say probably eight to ten. Tr. 1-189:21 to 190:5.
[Note 10] See Exs. 3, 49.
[Note 11] See Exs. 2, 19, 50.
[Note 12] See Ex. 2.
[Note 13] Tr. 1-94:18 to 95:2.
[Note 14] Tr. 1-120:12-16; see also Exs. 19, 30.
[Note 15] See Joint Pre-Trial Memorandum, Agreed Upon Facts ¶ 7 [hereinafter Agreed Upon Facts]..
[Note 16] See Exs. 33, 63A, C.
[Note 17] See Tr. 1-133:16-18; 134:11-18.
[Note 18] See Ex. 51. Mr. Fordham wrote: To my knowledge, by observation from driving by on South Avenue, they [the defendants] are violating this permit by storage of diverse materials on site used in their landscape business. . . . I can see stored substantial quantities of rock, and what appears to be wood chips and/or mulch, and also cut wood. Id.
[Note 19] See id.
[Note 20] See Ex. 52; Fordham v. Butera, 450 Mass. 42 , 43 (2007).
[Note 21] See Exs. 21, 55.
[Note 22] See Ex. 4.
[Note 23] In 2003, the plaintiff appealed the 2003 Business Storage Permit to the Land Court pursuant to G.L. c. 40A, § 17 & G.L. c. 185, § 1(j ½). In 2005, the Land Court (Lombardi, J.) determined that Section V.B.5 was invalid for the reason that it grants the Board unbridled discretion in deciding whether to grant a permit under that section of the By-Law. See Fordham v. Butera, 13 LCR 503 , 503 (2005) (Misc. Case No. 291635). The parties agreed, at hearing, to limit the summary judgment motions to the validity of Section V.B.5; as such, the appeal of that order to the Appeals Court was likewise so limited. See Fordham v. Butera, 68 Mass. App. Ct. 907 , 909 (2007). The Appeals Court affirmed the Land Court, holding that section V.B.5 of the by-law, whether considered a zoning provision, or a general by-law provision, lacks sufficient standards to fairly guide the boards exercise of authority. Id. at 910. The Supreme Judicial Court reversed holding that the zoning bylaw, taken as a whole, is not invalid where it provides adequate standards to guide the board in making its decision to grant or withhold a permit. Fordham v. Butera, 450 Mass. 42 , 43 (2007). The Court vacated the judgment and remanded the case to the Land Court. Id. This court (Grossman, J.) heard the case on remand from the SJC in 2009, and thereafter remanded it to the Board for further proceedings. See Fordham v. Butera, 17 LCR 525 , 533 (2009) (Misc. Case No. 291635) (Grossman, J.).
[Note 24] See Fordham v. Butera, 17 LCR 525 , 533 (2009) (Misc. Case No. 291635) (Grossman, J.).
[Note 25] See Exs 5, 60. The full extent of the allowable storage of business related items under the 2009 Business Storage Permit, as determined by the Board, is as follows:
[T]wo four-cylinder trucks (rated to carry no more than two tons) with boxes (including wall extensions and a top) in the back (for carrying leaves, grass, branches, and bark mulch); two pick-up trucks (one primarily for the Buteras personal use; one car (primarily for personal use); two trailers for use in the Buteras landscaping business); two snows plows; snow tires; one small Bobcat; landscaping products such as fertilizer, lime, grub control and other similar lawn treatment products; peat moss, bark mulch, lawnmowers, grass catchers (for the lawn mowers), leaf blowers, leaf vacuums; grass trimmers, hedge trimmers, a sharpening wheel; and rakes, shovels, picks, grub hoses, pitch forks and similar landscaping equipment.
See Ex. 5, at 12. The Board then listed several items that the defendants could store at the Locus for personal use, such as firewood, stones, etc. Id.
[Note 26] See Ex. 5. The specific business-related items that are allowed to be stored outside on the Premises include the two [pickup trucks] with truck boxes (wall extensions and top) and bark mulch. . . . See id.
[Note 27] Tr. 1-99:2-18; 102:9-12; Ex. 23.
[Note 28] See Exs. 23, 25.
[Note 29] See Exs. 10, 22, 24.
[Note 30] See Ex. 24; Tr. 1-77: 10-13.
[Note 31] See Tr. 1-138:12 to 139:2; Ex. 10.
[Note 32] Tr. 2-44:2-13.
[Note 33] See Tr. 1-139:12 to 140:1; 225:14 to 226:15; Exs. 27, 33, 34. The exact date when the defendants planted the trees along the Locus eastern boundary line is unclear from the trial record, though suffice it to say at the time of trial, the vegetative barrier extended the entire length of the Locus eastern boundary.
[Note 34] Exs. 69-71.
[Note 35] In front of the Barn, there is a maple tree, with several hemlocks behind it. There are also four (4) arborvitaes, roughly twelve (12) feet tall, and three (3) Yellow Sedum, roughly sixteen (16) feet tall. See Tr. 1-106:7-15; 1-107:1-14; Exs. 10, 25-27.
[Note 36] The Buteras southern property line is the rearyard boundary that they share with the plaintiff.
[Note 37] Tr. 1-93:18-19.
[Note 38] Tr. 1-128:19-22.
[Note 39] Tr. 1-215:21 to 216:4.
[Note 40] I.e. the Buteras fence situated on the rear boundary line between the litigants properties.
[Note 41] See Exs. 31; 32; 63B; see also Ex. 10.
[Note 42] Fordhams rear boundary line runs beyond the boundary line he shares with the Buteras. As a result, Fordham shares at least a portion of his rear boundary line with the Peters, as well.
[Note 43] See Tr. 1-129:1-19; Exs. 31, 32.
[Note 44] See Tr. 1-129:23 to 130:1. Arborvitaes are frequently used for screening purposes.
[Note 45] I.e. well onto the Peters property.
[Note 46] The plaintiff relies heavily on Exhibit 55 in support of his argument that a gap existed at the parties common boundary from which he could view their business storage. See, e.g., Tr. 2-91:1 to 2:92:14. This court finds this argument unpersuasive for two reasons. Although the plaintiff argues to the contrary, Exhibit 55 is not inconsistent with Exhibit 10. The plaintiff testified that the space in question is shown on Exhibit 55 between the hatch marks along the southern boundary and the Locus western boundary. However, this court reads Exhibit 55 differently. There is shown on this plan a solid line with hatch marks extending across the back of the Locus, intending to represent the defendants fence. Although the plaintiff is correct that the hatch marks do not extend all the way to the western boundary line, this is due to the fact that a hand-drawn arrow depicts the gap along the Locus western boundary between the Locus and the Peters property and extends into Locus area on the plan. The solid line, however, extends into the space where plaintiff claims a gap existed in the absence of the hatch marks. This is consistent with Exhibit 10 which, although it uses Xs to depict the fence instead of a solid line with hatch marks, also depicts the fence extending the length of the parties common boundary. Secondly, as determined above, the ten (10) additional arborvitae provide screening and extend well onto the Peters property, covering any area that may have been disputed in Exhibit 55.
[Note 47] Tr. 1-153:6-8.
[Note 48] See Ex. 17.
[Note 49] Tr. 1-140:20-21; 149:3-5.
[Note 50] See Tr. 1-149:6 to 150: 7.
[Note 51] Tr. 1-150:14-18.
[Note 52] Tr. 1-153:11-16.
[Note 53] See Exs. 10, 26, 27, 29, 33.
[Note 54] Tr. 1-220:23 to 222:17.
[Note 55] Id. When the third pickup truck is on the defendants property, it is parked for the day, along with the other employee vehicles.
[Note 56] Exs. 13-15. A four-cylinder truck is pictured in Ex. 36. The Bylaw expressly requires that any vehicle used in connection with a home occupation must be rated to carry less than two (2) tons. Subsection V.B.1.f(v).
[Note 57] Tr. 1-117:7-17; Ex. 33.
[Note 58] See Exs. 63A-C; 69-71. Mr. Fordham noted: [s]ome of the photographs show the parking of trucks at different places than Mr. Butera indicated. Tr. 2-146:22-24.
[Note 59] See Tr. 1-173:1-7; 211:5-12; 2-77:3-19.
[Note 60] Tr. 2-71:19-21; 72:1-3. Mr. Butera stated: I know my trucks [are] supposed to be in the correct place every night, and thats where they are. . . . . Tr. 72:1-3.
[Note 61] Agreed Upon Facts ¶ 12; Ex. 5; Tr. 1-143:19 to 144:3.
[Note 62] See Tr. 1-99:23-24 to 100:1-2, 17-20; 143:9 to 144:15; Exs. 8, 10.
[Note 63] The first payment for the storage site in Natick was on March 9, 2007. The first delivery of mulch to the Natick site was on April 30, 2007. See Tr. 2-45:20 to 46: 21.
[Note 64] See Tr. 1-145:7-10; 13-16 to 146:3.
[Note 65] Tr. 1-135:20 to 137:21 (noting the contents of each pile and the personal uses associated with each); Exs. 34, 63A (top photo), 63C (bottom photo).
[Note 66] Tr. 1-140:23-24.
[Note 67] Tr. 148:7-17. Mr. Butera testified as follows:
Q: And is that [the landscaping services done by employees at the Locus]substantively any different than the maintenance you do on the other lawns in your
A: No. We do exactly what we do for everybody else on my own home, too.
See Tr. 1-148:12-15. Mr. Peters also testified that the noise he hears coming from the Locus when the defendants employees landscape the property is consistent with the noise he has heard coming from other professionally landscaped lawns in the neighborhood. Tr. 1-74:3-7.
[Note 68] Tr. 1-72:12-15; 73:3-6; 147:17 to 148:1.
[Note 69] See Tr. 1-147:2-6; 153:23 to 154:1.
[Note 70] Tr. 1-72:12-15.
[Note 71] Tr. 1-73:3-6.
[Note 72] Tr. 1-121:12-16; 232:12-15.
[Note 73] Tr. 1-121:12-16; 232:17 to 233:3. Mr. Butera testified as follows:
Q: How frequently does that activity occur that you change tools and personalize the trailer or the pickup truck
A: Not often at all.
Q: -- for a job?
A: Not often at all because we keep so many tools on both trailers, we hardly have to move anything at all, but sometimes you need a particular thing that you dont have.
Q: How often does that happen?
A: Not often at all. See Tr. 1-232:17 to 233:3.
[Note 74] See Tr. 1-234:6 to 235:8.
[Note 75] See Ex. 9.
[Note 76] See Tr. 1-62:18-19; 65:7-11.
[Note 77] Tr. 1:62:14-19; Exs. 42-43. Edward Peters, the neighbor to the west of the defendants, testified that typically from seven oclock in the morning until after the morning commute, traffic traveling eastbound [on Route 30] is backed up well beyond our property, just because of the heaviness of traffic flow. Tr. 1:62-14-18; see also 1-154:20 to 155:5. The Peters letter to the Board also describes the noise coming from Route 30 on a regular basis. Ex. 7(b).
[Note 78] Tr. 1-67:12-22; 154:20-22.
[Note 79] See Tr. 1-66:2 to 71:20; 154:20 to 157:11; Exs. 8, 9, 37-43.
[Note 80] See Tr. 1-157:13-15; 160:17-18; Exs. 7(b), (d)(1).
[Note 81] Tr. 1-158:9 to 159:7; 159:24 to 160:3.
[Note 82] See Tr. 1-72:16-21.
[Note 83] Tr. 1-73:22 to 74:2.
[Note 84] Tr. 1-78:10-12.
[Note 85] Section X of the Weston Bylaw is specifically entitled Special Permits.
[Note 86] This court concluded previously that a Business Storage Permit is tantamount to a special permit based on the Supreme Judicial Courts treatment of the Business Storage Permit in Fordham v. Butera, 450 Mass. 42 (2009). There, the Supreme Judicial Court was called upon to determine the validity of Section V.B.5 [Business Storage Permit] of the Bylaw. See Fordham v. Butera, 450 Mass. 42 , 44-47 (2007) & cases cited therein. The Court specifically referenced G.L. c. 40A, § 9 as providing the applicable standard for analyzing the Business Storage Permit. See id. at 44, 46-47. The Court stated that [w]hen a towns legislative body grants authority through its bylaws to zoning board of appeals to act on applications for special permits, those bylaws must provide the board both with sufficient standards and with sufficient specificity as to the terms used in the bylaw. Id. at 44, citing Gage v. Egremont, 409 Mass. 345 , 349 (1991) (specificity); Burnham v. Bd. of Appeals of Gloucester, 333 Mass. 114 , 118 (1955) (standards). The Court applied special permit related case law in determining that Section V.B.5 possessed sufficient standards and specificity to render it valid. See Fordham, 450 at 44-47.
Further, the Business Storage Permit fits within G.L. c. 40A, § 9 insofar as it allows for a specific use that is not otherwise permitted in a residential district and such use is desirable but . . . would be incompatible in a particular district unless conditioned in a manner which makes [it] suitable to a given location. . . . See SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 , 109 (1984). See generally Fordham v. Butera, 17 LCR 525 , 528 nn.22 & 23 (2009) (Misc. Case No. 291635) (Grossman, J.).
[Note 87] See Fordham v. Butera, 17 LCR 525 , 533 (2009) (Misc. Case No. 291635). These Bylaw provisions are in reference to the sections as they appeared in the 2003 Bylaw.
[Note 88] Ex. 5, at 8.
[Note 89] Section V.B.5.
[Note 90] Tr. 1-149:12-15.
[Note 91] Plaintiffs Post-Trial Brief, at 24 [hereinafter Pl.s Post-Trial Brief]; see also Ex. 17.
[Note 92] See Ex. 17.
[Note 93] Tr. 1-153: 11-16
[Note 94] See Ex. 7(g).
[Note 95] The plaintiff construes essential differently, focusing on the number of landscaping companies doing business in Weston. Even were this court to analyze the essential requirement in the manner that plaintiff suggests, it would nonetheless reach the same conclusion. Notwithstanding the large number of landscapers listed in the Weston phonebook, the defendants business is one of only four landscaping business headquartered within the Town. See Ex. 17.
[Note 96] The eleven conditions of Section V.B.1.f (now V.B.1.e) are set out in full as follows:
(i) That the occupation or occupations are conducted totally within the dwelling and not in an accessory structure;
(ii) That the occupant shall maintain at least fifty percent interest in the occupation or occupations so conducted;
(iii) That there shall be no use of any accessory structure other than for parking one vehicle used for the occupation or occupations;
(iv) That regardless of the number of occupations conducted in the dwelling, no more than one vehicle related to the occupation or occupations shall be regularly on the premises whether or not garaged;
(v) That vehicle shall be rated to carry no more than two tons;
(vi) That there is no visible exterior storage of material or equipment and no exterior indication from the boundaries of the premises of such use or variation from the residential character of the area;
(vii) That not more than three persons regularly engaged in the occupation or occupations, whether full or part-time, in addition to the occupant shall work at the premises at one time;
(viii) That traffic generated by such occupation is not inconsistent with traffic usually associated with a single family residence and there is adequate parking on the lot screened from abutting properties;
(ix) That it does not create a hazard to health, safety, or welfare;
(x) That there is no evidence of the occupation or occupations through persistent or excessive sound, vibration, dust, heat, glare, odor, or light discernible at the boundaries of the premises or through interference with radio or television reception or other communications equipment.
(xi) That, where required, there is compliance with Section V, Subsection B.5. (emphasis added)
[Note 97] Pl.s Post-Trial Brief, at 28.
[Note 98] At trial, the plaintiff contested Section V.B.1.(f) (iii), but chose not to argue this point in his post-trial brief. Section V.B.1.f (iii) provides: That there shall be no use of an accessory structure other than for parking one vehicle used for the occupation or occupations.
The plaintiff testified regarding this provision that: I have seen up to six vehicles over time [at the Locus]. See Tr. 2-114:8-14. His objection is flawed for two reasons. First, this condition specifically deals with parking of occupational vehicles in an accessory structure, not anywhere on the Locus. Compare V.B.1.f(iv) (discussing the limit on business vehicles on the property, whether or not garaged). In the 2009 Remand Order, V.B.1.f(iii) was specifically cited as an example of how § V.B.5 permits deviation fromV.B.1.f conditions insofar as they bear on storage. Footnote 47 of that order stated: [b]y way of example, the Board may, pursuant to § V.B.5, permit the storage of more than one vehicle in an accessory structure, in derogation of Condition (iii). See Fordham v. Butera, 17 LCR 525 , 533 n.47 (2009) (Misc. Case No. 291635). To the extent that the defendants are using accessory structures on the Locus for storage of multiple business vehiclesor business storage in generalSection V.B.5 preempts the limitations of V.B.1.f(iii). Thus, the Boards determination to the same was not in error. Second, examining plaintiffs comment in the context of his testimony regarding this provision, see Tr. 2-114:8-16; 115:16-23, his six vehicles objection appears to be in regards to the number of employee vehicles at the Locus, which the Board limited in its 2009 Decision to five (5). As a general matter, if the plaintiff believes that the number of employee vehicles at the Locus exceeds a limitation set by the Board in the 2009 Business Storage Permit (i.e. five employee vehicles), the proper avenue for this complaint is an enforcement action under G.L. c. 40A, § 7. The allegation that Mr. Butera is not complying with the 2009 Business Storage Permit is separate and apart from an objection to the Boards interpretation and application of the relevant Bylaw provision.
[Note 99] Mr. Butera testified:
Q: Now do you run any of that business from your house?
A: Bookkeeping, phone calls.
Q: Do you meet customers at your house?
A: Absolutely no.
Q: Do you conduct any of your business in that house, other than bookkeeping and phone calls?
A: No, we do not. Tr. 1-140:23 to 141-1-5.
[Note 100] Pl.s Post-trial Brief, at 28
[Note 101] Id.
[Note 102] Tr. 1-72:12-15; 75:8-12.
[Note 103] The Board recognized as much when it stated in the 2009 Business Storage Permit that the defendants had permission . . . to remove from the Premises, the aforementioned [business] vehicles . . . See Ex. 5, at 12.
[Note 104] This conclusion is further supported by the dictionary definition of occupation, which is defined as follows: An activity that is ones regular source of livelihood. See American Heritage College Dictionary 961 (4th ed. 2002). The picking up and dropping off of business vehicles by employees is not an activity that qualifies as ones regular source of livelihood. Rather, the activities fitting such definition are the actual landscaping and snow removal services conducted by employees off-premises at customers homes.
[Note 105] See Tr. 1-121:12-16;148:2-6; 232:12 to 233:3. Additionally, Mr. Buterawhen questioned about the frequency with which fertilizer needs to be moved on and off the trucksstated that the fertilizer is already on the trucks and rarely needs to be moved around. See Tr. 1-234:6-24.
[Note 106] The defendants have stored bark mulch at their rented storage property in Natick since 2007. Mr. Butera began renting the space in Natick for such storage on March 9, 2007. The first delivery of mulch to this site occurred on April 30, 2007. See Finding of Fact ¶ 30.
[Note 107] Tr. 1-145:11 to 146:3.
[Note 108] There is nothing improper about the Boards decision to permit mulch storage, in and of itself, at the Locus under the 2009 Business Storage Permit. However, if this activity were to be returned to the Locus, one could readily argue that the frequent loading and unloading of the mulch onsite would constitute something more than activity incidental to business storage permissible under Section V.B.5. However, the mulch issue has been rendered moot insofar as mulch has not been stored at the Locus since 2007 and there is no present indication that the defendants intend to return that activity to the Locus.
[Note 109] See Tr. 1-236:15-19.
Q: Is there any reason why you cant store everything in Natick and run the business from Natick?
A: I have a storage business permit that was granted to me, and I would like to keep it in my home and keep the mulch in Natick like you [Fordham] and I agreed. Id.
[Note 110] Mr. Butera testified that one pick-up truck is used almost exclusively for personal use. Occasionally, it will be used in connection with the landscaping business if the other pick-up truck breaks down. However, even were the personal pick-up truck to be used regularly in connection with the business, this would not run afoul of Section V.B.5, as it allows storage of additional occupational vehicles beyond that allowed by Section V.B.1.f.
[Note 111] The business vehicles are: two four-cylinder trucks and one pickup truck.
[Note 112] Section V.B.5 (emphasis added).
[Note 113] Subsection V.B.1.f(v) (emphasis added). This is a clear reference to a business vehicle.
[Note 114] For example, those vehicles belonging to customers, clients, or employees.
[Note 115] Moreover, the treatment of employee vehicles as traffic associated with the occupation is further supported by reference to subsection V.B.1.f(vii). This subsection contemplates up to three persons engaged in the occupation, other than the occupant, working at the premises at one time. A reasonable inference flowing from this subsection is that each employee, potentially, would also have a vehicle on the premises in order to commute to and from work everyday. A person conducting a non-customary home occupation, without a business storage permit, is limited to one occupational vehicle on the premises yet may have a total of three employees. Consequently, this lends support to the argument that employee vehicles and parking are governed by subsection V.B.1.f(viii), rather than subsection V.B.1.f (iv). Otherwise, if employee vehicles and parking were both encompassed within the scope of the vehicle limitation set forth in subsection V.B.1.f (iv), every person conducting a non-customary home occupation would need to obtain a business storage permit in order to cover the vehicles their employees utilize to get to and from work at the premises everyday.
[Note 116] Subsection V.B.1.f (viii) provides: That traffic generated by such occupation is not inconsistent with traffic usually associated with a single family residence and there is adequate parking on the lot screened from abutting properties.
This court concurs with the Boards characterization of employee vehicles as traffic generated by an occupation, as examination of the other Section V.B.1.f conditions has shown that it does not fit reasonably into any other category. Notwithstanding this classification, this court is not prepared to conclude, given the trial record, that any such traffic exceeds the use normally associated with a single family residence. See Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73, 73-74 (2003) (noting that judicial review, assuming the board has utilized the proper criterion and standards, thereafter gives a highly deferential bow to local control over community planning.).
Mr. Butera testified that during the normal landscaping season, excluding weeks when he does spring and fall clean-ups, he only takes out two (2) business vehicles daily: one (1) pickup and trailer and one (1) four-cylinder truck and trailer. See Tr. 1-144:20:22 to 145:6; 147:2-10. The other two (2) trucks remain stored at the Locus. Tr. 1-145:4-6. Thus, there are typically no more than seven (7) round trips per dayup to five attributable to employees commuting to and from the site (sometime fewer if they carpool in fewer than five (5) vehicles) and the two (2) round trips by the business vehicles utilized on that particular day. Although he does not reside at the Locus, one (1) round trip is made by the Buteras son, an employee of the business. Further, the testimony at trial indicated that return trips to the Locus for mulch reloading no longer occur. See Tr. 145:7-10; 21 to 146:3. The Board found, when considering both the number of daily round trips and the mulch return trips, that this is not inconsistent with a single family residence that may house a family with multiple drivers, all of whom may make multiple car trips in and out per day plus receive deliveries of mail, newspapers and packages as well a social guests. See Ex. 5, p. 10. Given that mulch return trips no longer occur, the number of daily round trips is less than what the Board deemed to be not inconsistent with traffic usually associated with a single-family residence in Weston.
Also of import, the employees park their vehicles for the duration of the day, rather than coming and going frequently throughout the day. Notably, the Bylaw permits many other occupations in a Single Family Residence Districtsuch as doctors, lawyers, and dentists officesprovided a Special Permit is obtained, along with Site Plan Approval. See Section V.B.6. The traffic generated by the employees here is likely far less than that generated by some of the aforementioned occupations which are explicitly allowed under the Bylaw. Lastly, the Locus is located along Route 30, a heavily trafficked road. See Tr. 1- 62:4-6; supra, Finding of Fact ¶ 36. The trial record is replete with references to the heavy traffic on Route 30. See Tr. 1-62:18-19; 65:7-11; 62:14-19; see also Exs. 42-43. Edward Peters, the neighbor to the west of the Buteras, testified that typically from seven oclock in the morning until after the morning commute, traffic traveling eastbound [on Route 30] is backed up well beyond our property, just because of the heaviness of traffic flow. Tr. 1:62-14-18; see also 154:20 to 155:5. Based upon the trial record, this court concurs with the Boards determination that round trips associated with the defendants occupation do not exceed that normally associated with a single-family residence. This is particularly so in light of the negligible effect such round trips are likely to have on Route 30s heavy traffic. See Britton, 59 Mass. App. Ct. 68 , 73, 73-74 (2003). Moreover, as has been observed, employee parking is adequately screened by the 8-9 foot thick Canadian Hemlocks and stone wall in front of the employee parking area.
[Note 117] Subsection V.B.1.f(viii).
[Note 118] Defendants Michael and Janet Buteras Post-Trial Brief and Requests for Ruling of Law, at 9 [hereinafter Defs. Post-Trial Brief].
[Note 119] Defs. Post-Trial Brief, at 10. Such an approach by which the Locus was, in effect, sealed on all four sides, would negatively impact the residential character of the Locus and the surrounding neighborhood.
[Note 120] See Pl.s Post-Trial Brief, at 30. Regarding the general visibility of the defendants business storage activities at the Locus, the plaintiff testified . . . I have been able to see anything that I have wanted to see simply by walking to the boundary. Tr. 2-116:22-24. Note that Mr. Fordhams residence is to the rear of the Buteras property.
[Note 121] See Ex. 24.
[Note 122] Defs. Post-Trial Brief, at 10.
[Note 123] Tr. 2-94:13-15.
[Note 124] Tr. 2-117:2-5 (emphasis added).
[Note 125] See Tr. 2-44:2-13.
[Note 126] See Exs. 8, 9.
[Note 127] See Ex. 8.
[Note 128] The plaintiff submitted one photograph, Ex. 69, as its regular size and in Ex. 71 as a blown-up version of the same photo, taken on December 13, 2009. Those photographs depict the snow-covered ground and bare trees as seen from his driveway. Even in the blown-up version, one can make out the Barn, Shed, and Tarp. The only indication of business storage is a pick-up truck parked in the driveway. The 2009 Remand Decision gave the defendants permission to move their vehicles around on the premises. As discussed above, the defendants chose to screen this boundary with a heavy vegetative barrier. Such a barrier comports with the residential nature of the lot and the requirements of the Bylaw. That the plaintiff may be able to observe some minimal indication of business storage in mid- winter when the trees have lost their leaves, will not suffice to find a violation of the Bylaw.
[Note 129] See Exs. 66, 68. The handwritten diary consists of the plaintiffs visual observations from August 25, 2009 to June 16, 2010. See Ex. 66. Although the time frame spans a somewhat lengthy period, there appears to be no uniform methodology for the dates and times plaintiff attempted to monitor the defendants property. In fact, it seemed to be a rather haphazard process. Some observations took place over several consecutive days. However, in one instance, there was a two-month break between certain observations and a four-month break between others. The plaintiff laid only the most minimal foundation at trial when introducing the handwritten diary, stating: The visual observations are to the extent of the dates indicated actual physical observations I made on all of those dates relative to what of defendants activities I could see. Tr. 2-159:17-20. There is, essentially, no indication as to the locations where the plaintiff made such observations. Further, most of the included descriptions are generalized, such as 9/09 6 Cars; 4/23 Piles; 5/08 Piles Large Truck; 6/15 Truck at South Avenue. Piles. 5:00PM, To the extent that the handwritten chart lists locations from which alleged observations were made, this exhibit, too, is entitled to little or no weight. The only date or time listed is a handwritten 2009 in the bottom right corner. See Ex. 68. The only foundation laid in regard to this exhibit was that the plaintiff informed that court that Exhibit 68 was a simplistic table of what I can see from various locations, which I prepared in 2009 from three locations. Tr. 2-160:10-12; Tr. 2-160:12-17.
[Note 130] See Tr. 2-170:18 to 171:4.
[Note 131] Tr. 2-118:7-8.
[Note 132] Pl.s Post-Trial Brief, at 31.
[Note 133] See Tr. 1-148:12-15.
[Note 134] Section I.B (as in effect in 2003). In the 2009 version of the Weston Bylaw, this provision is included in Section V.A.2.
[Note 135] Ex. 5, at 11.
[Note 136] Tr. 1-160:17-24. Patricia J. Miller, of 525 South Avenue, stated that There has never been dust or dirt from their property nor from the vehicles they use. See Ex. 7(d)(1). Paul F. Miller, also associated with 525 South Avenue, stated: I did not notice any unusual volume of traffic or dust or dirt raised by the ongoings at that address [534 South Avenue]. Ex. 7(e). The Peters letter to the Board supports the assertion regarding the lack of odor emanating from the Locus. See Ex. 7 (b) ([T]here are no unnatural or objectionable odors and we suspect that unless you were to drive down his driveway, beyond his house, you would not be aware that a landscaping business was being operated there.).
[Note 137] See Tr. 1-158:9-24 to 159:1-5.
[Note 138] Tr. 1-72:19-21.
[Note 139] Tr. 1-73:18 to 74:1-2. Mr. Peters further testified that Defendants normal work operations produce less noise than a family, the abutter to the west of the Peters property, with five boys who frequently played outside in their yard growing up. Tr. 1-74:8-16.
[Note 140] See Ex. 7(e).
[Note 141] Although Section V.A.2 does not appear in the 2009 version of the Bylaw, a use variance is nonetheless prohibited because that Bylaw does not explicitly allow for use variances. See G.L. c. 40A, § 10 (Except where local ordinances or by-laws shall expressly permit variances for use, no variance may authorize a use or activity not otherwise permitted in the district in which the land or structure is located . . .).
[Note 142] Ex. 5, at 11.
[Note 143] To the extent that the plaintiff characterizes the change from personal storage in the Barn to business storage use as a use variance barred under G.L. c. 40A, s. 10, such characterization is inaccurate. See Supplement to Plaintiffs Post-Trial Brief, at 8-9 [hereinafter Pl.s Supp. Brief]. As noted above, a use variance permits a property owner to utilize property in a way that is otherwise prohibited under a bylaw. See Cavanaugh v. DiFlumera, 9 Mass. App. Ct. 396 , 400 (1980). The mere fact that the use of the Barn changed from personal use to business storage usethough quite literally a change of useis not equivalent to a use variance as it is an allowed use under the Bylaw, with a permit. As has been noted supra, the plaintiff, in any event, elected not to appeal the initial Business Storage Permit in 1995.
[Note 144] In its 2009 form, the Bylaw provides:
Except as may be permitted with respect to lawfully nonconforming uses, buildings, and structures regulated under the provisions of Section III of this Zoning By-law, no building, structure, or land may be used, and no building or structure may be erected or altered for any use, not expressly allowed in the district in which the building, structure, or land is located. A building, structure or use not expressly allowed by this Zoning By- law is prohibited. Section V.A.1.
[Note 145] Pl.s Post-Trial Brief, p. 14.
[Note 146] See id. at 13-14; Pl.s Supp. Brief, at 9-10.
[Note 147] Pl.s Post-Trial Brief, at 14.
[Note 148] Ex. 44.
[Note 149] Ex. 1.
[Note 150] The Board noted in its decision that Mr. Butera also specifically represented that the barn would have no business use and that the heavy equipment used in his landscape business are [sic] not planned to be stored on the premises. See Ex. 1.
[Note 151] Tr. 2-85:18-21.
[Note 152] Tr. 2-85:11-13.
[Note 153] See Ex. 4.
[Note 154] In his 2003 enforcement action, the plaintiff complained that the 1995 Business Storage Permit allowed only storage of one landscaping vehicle at the Locus and the defendants were violating this by storing diverse materials on the site [Locus] used in their landscaping business. See Ex. 51. He further complained that there is excessive usage of the property that is not allowed by the permit . . . [and is] inappropriate in a residential zone. See id. The Building Inspector responded by ordering the defendants to remove the materials not authorized under the 1995 Business Storage Permit. See Ex. 52. In this sense, the plaintiffs enforcement action challenged the defendants use of the property; it did not challenge the validity of the Shed or the Tarp, though both were standing at that time. The Shed was built in 1995 with a building permit issued by the Weston building inspector. See Finding of Fact ¶ 8. The Tarp has been in place since 2001 or 2002; the defendants believed they did not need a building permit for it based on a conversation they had with the Weston building inspector. See Finding of Fact ¶ 10. If the plaintiff now wishes to challenge the validity of either the Shed or the Tarpas distinguished from the business storage use authorized thereinthe proper avenue to do so is via an enforcement action at the local level. The doctrine of exhaustion of administrative remedies requires that a party raise this type of challenge at the local level prior to seeking relief in the courts. See G.L. c. 40A, § 7; see also Clark & Clark Hotel Corp. v. Bldg Inspector of Falmouth, 20 Mass. App. Ct. 206 , 209 (1985) ([E]ven where there is alternate judicial or statutory remedy providing access to the courts . . . if the administrative action may afford the plaintiffs some relief, or may affect the scope or character of judicial relief, exhaustion of the possibilities [of such administrative action] should ordinarily precede independent action in the courts.) (internal citations omitted); Neuhaus v. Bldg. Inspector of Marlborough, 11 Mass. App. Ct. 230 , 235 (1981). The plaintiff has never brought an enforcement action regarding either the Shed or the Tarp. This court expresses no opinion on the validity of either. Having so determined that the use permitted under the business storage does not run afoul of Section I.A, and in the absence of any prior challenge to the validity of the Shed or the Tarp (which in 2009 had existed for fourteen years and 7-8 years, respectively), this court sees no reason why the Board could not have permitted business storage use in either case.
[Note 155] The full text of the first paragraph of G.L. c. 40A, § 6 states:
Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by section five, but shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent, except where alteration, reconstruction, extension, or structural change to a single or two-family residential structures does not increase the nonconforming nature of said structure. Pre-existing nonconforming structures or uses may be extended or altered, provided that no such extension or alteration shall be permitted unless there is a finding by the permit-granting authority that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use [or structure] to the neighborhood. (emphasis added). See also Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 14 , 21 (1987) (substituting word structure into second sentence of first paragraph of G.L. c. 40A, § 6 render [the] statute intelligible and so effectuate its obvious intent.)
[Note 156] The Weston By-law does not contain the second except clause of the first sentence of Section 6, though otherwise mirrors much of its language. See Section III.A.
[Note 157] Section II, Definitions.
[Note 158] Additionally, nothing in Section V.B.5 requires a minimum lot size to maintain a business storage use on a residential lot in Weston.
[Note 159] The plaintiff also relies heavily on Powers v. Bldg Inspector of Barnstable, 363 Mass. 648 (1973) in arguing the expansion of business use was impermissible as part of the 2009 Business Storage Permit decision. Powers set forth the three tests used to determine whether a change in a lawful nonconforming use is still protected under G.L. c. 40A, § 6. See Powers, 363 Mass. at 653. Having determined that business storage is a conforming use in a Single Family Residential District A, Powers and the cases cited therein are inapposite in the instant action, as the 2009 Business Storage Permit allows the expansion of a conforming use.