Lester and James Epstein, father and son, own two parcels of land on opposite sides of Maple Street in a residential zone in Mansfield. For some years, they have stored and sold firewood on one of the parcels. Only a small fraction of the firewood they store and sell is grown and cut on either of their parcels; the vast majority of the wood is brought to the property from offsite. The Mansfield Building Inspector determined that the Epsteins storage and sale of firewood was not forestry, a permitted use, but was rather bulk material storage and sales, a use allowed only in certain business and industrial districts. They appealed to the Mansfield Zoning Board of Appeals, which upheld the Building Inspectors determination, and have now appealed to this court. The Building Inspector was correct that the Epsteins storage and sale of firewood from offsite is not forestry as defined in the Mansfield zoning bylaw. The Plaintiffs Motion for Summary Judgment is denied, and pursuant to Mass. R. Civ. P. 56(c), summary judgment is rendered against them and in favor of the defendant ZBA.
Procedural History
The plaintiffs James Epstein and Lester S. Epstein filed their Appeal of Mansfield Zoning Board of Appeals Decision per M.G.L., c. 40A, § 17 (complaint) on May 18, 2012, naming as defendants the Mansfield Zoning Board of Appeals and its members, Jack Vultaggio, Kevin Mackie, James Rathbun, Elisabeth Garber-Miller, and Philip Shannon (ZBA). The complaint is an appeal from the ZBAs May 1, 2012, decision, which denied the Epsteins appeal of a determination of the Town of Mansfield Building Inspector that the Epsteins property at 900 Maple Street, Mansfield was being used as a bulk material storage/sales yard in violation of the Mansfield Zoning By-Law. The complaint has two counts. Count I is for Error of Decision and Violation of Due Process, and is an appeal under G.L. c. 40A, § 17. Count II is for Declaratory Relief c. 240, § 14A.
The ZBA filed its answer on June 8, 2012. The case management conference was held on June 14, 2012. The parties filed the Stipulation of Dismissal Without Prejudice on July 17, 2012, dismissing count II of the complaint without prejudice.
The Epsteins filed the Plaintiffs Motion for Summary Judgment, along with the Plaintiffs Memorandum of Law in Support of Motion for Summary Judgment, the Plaintiffs Statement of Undisputed Material Facts in Support of Their Motion for Summary Judgment, the Affidavit of James Epstein in Support of Plaintiffs Motion for Summary Judgment (Epstein Affidavit), and Appendix, on July 8, 2013. On July 30, 2013, the ZBA filed the Board of Appeals Opposition to Epsteins Motion for Summary Judgment, the Board of Appeals Request for Disposition, and its Request for Oral Argument, Pursuant to Massachusetts Rules of Civil Procedure 56 and 56(c), along with its Memorandum of Law in Support of the Board of Appeals Opposition to Epsteins Motion for Summary Judgment, the Board of Appeals Request for Disposition, and its Request for Oral Argument, Pursuant to Massachusetts Rules of Civil Procedure 56 and 56(c), the Board of Appeals Response to the Statement of Undisputed Facts and the Boards Statement of Additional Undisputed Facts, the Affidavit of Nicholas J. Riccio (Riccio Affidavit), and the Appendix of Items Submitted by the Board of Appeals in Connection with Its Opposition to Epsteins Motion for Summary Judgment, the Board of Appeals Request for Disposition, and its Request for Oral Argument, Pursuant to Massachusetts Rules of Civil Procedure 56 and 56(c). The same day, the ZBA also filed the Mansfield Zoning Board of Appeals Motion to Strike Incompetent Portions of the Affidavit of James Epstein and Its Request for Oral Argument (Motion to Strike). On August 12, 2013, the Epsteins filed Plaintiffs Reply to Mansfield Zoning Board of Appeals Cross Motion for Summary Judgment, Plaintiffs Response to the Board of Appeals Response to Plaintiffs Statement of Undisputed Facts and the Boards Statement of Additional Undisputed Facts, and Plaintiffs Opposition to Defendants Motion to Strike.
The court heard the Plaintiffs Motion for Summary Judgment and the Motion to Strike on August 23, 2013. The Motion to Strike was allowed, and paragraphs 17 and 18 of the Epstein Affidavit were stricken. The Plaintiffs Motion for Summary Judgment was taken under advisement. This decision follows.
Summary Judgment Standard
Summary judgment may be entered if the pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits . . . show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a
matter of law. Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, I am to draw all logically permissible inferences from the facts in favor of the non- moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law. Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Where the non-moving party bears the burden of proof, the burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving partys case. Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991); see Regis Coll., 462 Mass. at 291-292. Summary judgment, when appropriate, may be rendered against the moving party. Mass. R. Civ. P. 56(c).
Undisputed Facts
The following facts are undisputed.
1. Since 1996, Lester and James Epstein have owned the 2.7 acre parcel at 900 Maple Street, Mansfield, Massachusetts (Parcel 1). Maple Street is a public way. Parcel 1 is shown as lot 39-11 on the Mansfield Assessors Map. Parcel 1 has a single-family home in which James Epstein and his family reside. Plaintiffs Statement of Undisputed Facts (Pl. Facts) ¶ 1; Defendants Statement of Undisputed Facts (Def. Facts) ¶ 26; Appendix Exhibit 7 (App. Exh.); Epstein Aff. ¶¶ 1, 2, 4.
2. By a deed dated and recorded in the Bristol County Northern District Registry of Deeds (registry) at Book 20570, Page 92 on October 30, 2012, Lester Epstein conveyed to himself and James Epstein as joint tenants a 2.7 acre parcel in Mansfield (Parcel 2). Parcel 2 is unnumbered, but is shown as lot 40-92 on the Mansfield Assessors Map. Parcel 2 lies directly across Maple Street from Parcel 1. It has two sheds on it, but no other structures. Pl. Facts ¶ 3; App. Exhs. 5, 9, 10, 24; 26, Lester Epstein Dep. At 15; Epstein Aff. ¶¶ 2, 5.
3. Parcels 1 and 2 are located within the R-1 or Natural Resource and Scenic Residential zoning district under the Towns Zoning Bylaw (bylaw). Any use not expressly permitted in a district is prohibited. Forestry is a permitted use in the R-1 district, as it is in all districts. Forestry is defined as [c]ultivating and harvesting of forest products including, if upon more than five acres, the sale of firewood. Bulk Material Storage and Sales is a use prohibited in the R-1 zone. Pl. Facts ¶ 6; Affidavit of Nicholas J. Riccio (Riccio Aff.) ¶ 14 & Exh. E, bylaw at §§ 3.1, 3.2.6, 3.6.2, Schedule of Principal Use Regulations.
4. James Epstein sells firewood from Parcel 1. From 2007 to the present, between 75% and 90% of the wood he sold came from off-site locations, mostly from tree work Mr. Epstein did on other properties. He also brought wood onto Parcel 2 from off-site, processed it there, and then sold it. Pl. Facts ¶12; Def. Facts ¶ 10; James Epstein Dep. 16, 24-25, 53-54, 71- 72.
5. Beginning in 2007, Nicholas J. Riccio, the Towns Inspector of Buildings and Zoning Enforcement Officer (Building Inspector), made a series of zoning investigations of the Epsteins use of Parcels 1 and 2 for the sale of firewood. He visited the parcels, took photographs, and spoke to the Epsteins. He issued a series of zoning enforcement letters, on November 6, 2007, March 17, 2008, May 4, 2009, and November 19, 2010. Riccio Aff. ¶¶ 3, 19- 22, 24-25, 27-29, 31-32 & Exhs. F, G, H, I, J, L.
6. On January 6, 2012, William R. Ross, Town Manager of the Town, sent James Epstein a letter alleging that Mr. Epstein had expanded [his] operation on Parcel 1, including a sign advertising his business. The letter was copied to the Building Inspector. Def. Facts ¶ 52; Riccio Aff. ¶ 34 & Exh. M.
7. On January 11, 2012, the Building Inspector sent Lester and James Epstein a letter ordering them to cease and desist from using their property for bulk material storage and sales in violation of the bylaw, specifically, from selling firewood from their property (the Enforcement Order). Riccio Aff. ¶ 35 & Exh. N.
8. The Epsteins filed an appeal of the Enforcement Order with the ZBA on January 27, 2012. The Building Inspector provided the ZBA with the investigatory file of information he had gathered during various investigations of Parcels 1 and 2, including the materials discussed above, and the ZBA made those materials part of the record. After public hearings on March 20 and April 10, 2012, the ZBA voted three to two to overturn the Enforcement Order. Because a concurring vote of four members of a board consisting of five members . . . shall be necessary to reverse any order or decision of any administration official enforcing zoning, G.L. c. 40A, § 15, the effect of the vote was to affirm the Enforcement Order. Pl. Facts ¶¶ 14-15; Riccio Aff. ¶ 38 & Exh. P.
9. The ZBAs decision (Decision) was filed with the Town Clerk on May 1, 2012. This action followed. Pl. Facts ¶ 18; Riccio Aff. Exh. P.
Discussion
Under G.L. c. 40A, § 17, review of a local boards decision involves a "'peculiar' combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009). The court is obliged to find facts de novo and may not give any weight to those facts found by the local board. G.L. c. 40A, § 17; Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) (noting "[i]n exercising its power of review, the court must find the facts de novo and give no weight to those the board has found"); Kitras v. Eccher, 21 LCR 565 , 570 (2013) (noting the court must review the factual record without deference to the board's findings.). The court, however, must give deference to the local boards decision and may only overturn a decision if "based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); Britton, 59 Mass. App. Ct. at 72; Kitras, 21 LCR at 570. When a reviewing court's findings of fact provides any rational basis supported in the record for the local board's decision, even if the board itself cited no particularized reasons or specific evidence, that decision must stand. Wendy's Old Fashioned Hamburgers, 454 Mass. at 380; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001).
In their appeal to the ZBA, the Epsteins presented two grounds on which, they argued, their use of Parcel 1 to store and sell firewood was permitted under the bylaw. First, they argued that this was an agricultural use permitted in all zones under G.L. c. 40A, § 3. Second, they argued that they were in engaging in forestry, a permitted use in all zones, as defined by § 3.2.6 of the bylaw. Hearing both arguments, the ZBA upheld the Building Inspectors Enforcement Order in the Decision. The Epsteins raised both grounds again in this action and in their summary judgment motion. At oral argument, however, counsel for the Epsteins informed the court that the Epsteins abandoned their claims based on G.L. c. 40A, § 3. I therefore address only the Epsteins claim that the Decision and the Enforcement Order must be reversed because their use of Parcel 1 and Parcel 2 meets the definition of the permitted use of forestry under the bylaw.
Zoning bylaws are interpreted according to ordinary principles of statutory construction, with some deference given to the local boards interpretation. Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App. Ct. 539 , 545 (2014); Eastern Point, LLC v. Zoning Bd. of Appeals of Gloucester, 74 Mass. App. Ct. 481 , 486 (2009). When the language of a statute or bylaw is clear and unambiguous and leads to a workable result the court will look no further than the plain language. Local 589, Amalgamated Transit Union v. Massachusetts Bay Transp. Auth., 392 Mass. 407 , 415 (1984); see Commonwealth v. Kennedy, 435 Mass. 527 , 530 (2001); Boston Neighborhood Taxi Ass'n v. Department of Pub. Utils., 410 Mass. 686 , 690 (1991) (noting a court should not consider the legislative history or agency interpretations of a statute when the language that is plain). A court has the duty to give a zoning bylaw a reasonable construction and to give every word full force and effect. Massachusetts Turnpike Auth. v. Commonwealth, 347 Mass. 524 , 528 (1964). Accordingly, a court should follow the plain language, unless it would lead to an absurd result. Commonwealth v. Rahim, 441 Mass. 273 , 278 (2004). In other words, when the language of a bylaw can be given a reasonable meaning the by-law should not be interpreted as to cause absurd or unreasonable results. North Shore Realty Trust v. Commonwealth, 434 Mass. 109 , 112-113 (2001); Bell v. Treasurer of Cambridge, 310 Mass. 484 , 489 (1941).
The bylaw provides that its intent is to prohibit in any district any use which is not specifically permitted herein and that in each district no land shall be used except for the purposes permitted in the district as set forth in Section 3 and the Schedule of Principle Use Regulations. Bylaw § 3.1. Under the bylaw, forestry is a use permitted in all zoning districts. Bylaw, Schedule of Principal Use Regulations. Bulk material storage and sales, the use that the Building Inspector found that the Epsteins were engaged in, is not a permitted use in the R-1 district in which Parcels 1 and 2 lie. Id. The issue in this action is whether the Epsteins are engaged in bulk material storage and sales or in forestry on Parcels 1 and 2. That issue turns on whether their activities on the parcels fall within the definition of forestry in the bylaw.
The bylaw defines forestry as [c]ultivating and harvesting of forest products including, if upon more than 5 acres, the sale of firewood. Bylaw § 3.2.6. Cultivating and harvesting means growing and harvesting forest products. Because the bylaw regulates uses of particular properties, the permitted growing and harvesting of forest products must be done on the property. In other words, to engage in forestry as defined in § 3.2.6, the Epsteins must grow and harvest trees from their property. In this way, § 3.2.6 is similar to the agricultural exemption of G.L. c. 40A, § 3, which requires that the agricultural products be grown on the property, not be brought on the property from elsewhere to be sold. See Building Inspector of Peabody v. Northeast Nursery, Inc., 418 Mass. 401 , 405 (1994). It is undisputed that most, if not almost all, of the firewood that the Epsteins store and sell on Parcel 1 is not cultivated or harvested from Parcel 1 or 2, but is brought to Parcel 1 from off-site. The Epsteins conduct their firewood business like the nursery in Northeast Nursery, Inc. They are not engaged in forestry as it is defined in § 3.2.6.
The Epsteins argue that §3.2.6s phrase including, if upon more than 5 acres, the sale of firewood expands the definition of forestry to allow the sale of firewood brought from off-site so long as the subject property is more than five acres. They go on to argue that Parcels 1 and 2 combined are more than five acres in size, and, since they are both owned by the Epsteins and are directly across from each other Maple Street, should be treated as one lot. Leaving aside whether Parcels 1 and 2 can really be treated as one lot under the bylaw, this interpretation of § 3.2.6 does not withstand scrutiny. It is correct, as the Epsteins argue, that the word including is a word of expansion. See Town of Bedford v. Raytheon Co., 755 F. Supp. 469, 471 n.4 (D. Mass. 1991). Giving the phrase including, if upon more than 5 acres, the sale of firewood a reasonable construction and giving every word of § 3.2.6 full force and effect, Massachusetts
Turnpike Auth., 347 Mass. at 528, what this phrase is expanding is not § 3.2.6s limitation of cultivating and harvesting wood on the property, but what can be done on the property with the wood after it is cultivated and harvested. The definition of forestry provides that on smaller properties, a landowner may use the property to cultivate and harvest wood. If the property is large enough (i.e., more than five acres), the landowner may also then sell that wood for firewood onsite. Any other use of the wood onsite is subject to the other use restrictions of the bylaw.
The Epsteins interpretation of § 3.2.6 would cause absurd or unreasonable results. North Shore Realty Trust, 434 Mass. at 112, quoting Green v. Board of Appeal of Norwood, 358 Mass. 253 , 258 (1970). Under their interpretation, any person in a residential zone who owns five or more acres could harvest and cultivate only a few trees on their property and sell firewood from off-site trees or sell firewood solely from trees harvested off-site. Towns adopt bylaws that exclude commercial uses in residential districts to prevent deleterious effects of commercial operations. It would be inconsistent with the intent of the bylaw to allow land owners to import, store, and sell firewood from their property in a residential zone when the bylaw specifically prohibits almost all other commercial or business operations in that zone.
The deleterious effects of the Epsteins firewood sales led neighbors to lodge complaints with the Building Inspector about the Epsteins commercial use of the property in 2007, 2008, 2009, and 2010, resulting in notices of zoning violation to the Epsteins. Riccio Aff. ¶¶ 19-22, 24- 25, 27-29, 31-32 & Exhs. F, G, H, I, J, L. The Building Inspector sent his final Enforcement Order in January 2012. Riccio Aff. Exh. N. In that Order, he applied the bylaw to the use the Epsteins were making of Parcel 1 and found that they were engaged not in forestry, but were using the property as a bulk material storage/sales yard. Id. This was a reasonable interpretation of what the Epsteins were then doing on Parcel 1 and what they are now doing on Parcels 1 and 2. It was supported by the Building Inspectors investigation, including the photographs he took, and the Epsteins own admission that the bulk of the wood they sell is not cultivated and harvested on site. That record was before the ZBA when it issued its Decision. Their Decision upholding the Building Inspectors determination in the Enforcement Order is supported by the record.
Summary judgment, when appropriate, may be rendered against the moving party. Mass. R. Civ. P. 56(c). This is such a case. The Epsteins actions on Parcels 1 and 2 are not forestry as defined in § 3.2.6 of the bylaw. Rather, they constitute bulk material storage/sales, a use not permitted in the R-1 zone in which the property lies. The ZBAs Decision upholding the Building Inspectors determination in the Enforcement Order is affirmed, the Epsteins summary judgment motion is denied, and this appeal shall be dismissed.
Conclusion
For the foregoing reasons, the Plaintiffs Motion for Summary Judgment is DENIED. Pursuant to Mass. R. Civ. P. 56(c), summary judgment is RENDERED against the Epsteins and in favor of the ZBA. Judgment shall enter dismissing this action with prejudice.
Judgment accordingly.
JAMES EPSTEIN and LESTER S. EPSTEIN v. MANSFIELD ZONING BOARD OF APPEALS and its members, JACK VULTAGGIO, CHAIRMAN, KEVIN MACKIE, JAMES RATHBUN, ELISABETH GARBER-MILLER, CLERK and PHILIP SHANNON.