FOSTER, J.
Sean Youmell owns two vacant parcels of land in Southampton that were conveyed to him by his father, John J. Youmell, Jr., one at 57 Fomer Road and the other at 67 Fomer Road. The Youmells openly store a variety of trucks, vehicles, trailers, and construction and other equipment on the 57 Fomer Road property; nothing is stored on the 67 Fomer Road property. The Town of Southampton, by and through its Zoning Enforcement Officer, brought this action for a judgment ordering the Youmells to clear the two parcels, on the grounds that open storage of such trucks, vehicles, trailers, and equipment is not permitted in the Rural-Residential Zoning District in which the parcels lie. After a view and a trial, I find that Sean Youmell does engage in a use at the 57 Fomer Road property that is permitted in the Rural-Residential District, namely, noncommercial forestry, and may store the vehicles and equipment associated with that use on the parcel, so long as they are not stored outdoors (except for one unregistered vehicle which, under the terms of the Zoning By-laws, may be stored outside). The other trucks, vehicles, trailers, and equipment may not be stored on the 57 Fomer Road property, and must be removed within 120 days of the date of judgment.
Procedural History
The Town of Southampton, by and through its Zoning Enforcement Officer, filed its Verified Complaint on December 2, 2013, naming as defendants Sean Youmell and John J. Youmell, Jr. The Plaintiffs Motion for Preliminary Injunction was heard on December 9, 2013 and was advanced and consolidated with trial on the merits, pursuant to Mass. R. Civ. P. 65(b)(2). The Town of Southampton filed its First Amended Verified Complaint on December 16, 2013. The Defendants Answer and Affirmative Defenses were filed on January 8, 2014.
A pre-trial conference was held on January 29, 2014. Defendant John J. Youmell, Jr.s Motion for Involuntary Dismissal was filed on February 7, 2014; Defendants Motion for Involuntary Dismissal of Plaintiffs Claims as to 67 Fomer Road, Southampton, MA was filed on February 10, 2014. A view was taken on February 10, 2014. The trial was held on February 10, 2014. The court heard testimony from Richard Oleksak, Edward Cauley, Tracy Gagne, and Sean Youmell. Exhibits 1-19 were marked. Defendants Motion for Involuntary Dismissal of Plaintiffs Claims as to 67 Fomer Road, Southampton, MA was heard and allowed. Defendant John J. Youmell Jr.s Motion for Involuntary Dismissal was heard and denied.
The Plaintiff Town of Southamptons Post-Trial Brief was filed on March 27, 2014. The Defendants Post-Trial Argument was filed on March 28, 2014. The court heard closing arguments on April 3, 2014 and took the matter under advisement. This decision follows.
Findings of Fact
Based on the view, the undisputed facts, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.
1. Sean Youmell is the record owner of 57 Fomer Road, Southampton, Massachusetts (the 57 Fomer Property) and 67 Fomer Road, Southampton, Massachusetts (the 67 Fomer Property). He took title to both the 57 Fomer Property and the 67 Fomer Property by a deed from John J. Youmell, Jr., dated April 1, 2002 and recorded in the Hampshire County Registry of Deeds (registry) at Book 6598, Page 304, on April 3, 2002. The 57 Fomer Property is shown on Southampton Town Assessors Tax Map 28 as Block 52. The 67 Fomer Property is shown on Assessors Map 28 as Block 51. Exhs. 1, 7, 8; Tr. I-122.
2. John J. Youmell, Jr., is Sean Youmells father. He took title to the 57 Fomer Property by a deed dated November 28, 1986 and recorded in the registry at Book 2885, Page 262, on December 31, 1986. He took title to the 67 Fomer Property by a deed dated December 9, 1991 and recorded in the registry at Book 3840, Page 181. Exhs. 1, 5, 6; Tr. I-140.
3. The 57 Fomer Property and the 67 Fomer Property do not abut. They are separated at their frontage on Fomer Road by an Ancient Town Way and by 51 feet of an unrelated parcel. Exh. 8; Tr. I-18-19; View.
4. Both Properties are located in the Residential-Rural (R-R) Zoning District under the Zoning By-Laws of the Town of Southampton (Zoning By-Laws). There are no buildings with any assessed value located on either Property. Exhs. 1, 2, 9.
5. There was a sawmill (depicted in Exh. 4S) located on the 57 Fomer Property. At this time, the sawmill building is in dilapidated condition, with a sagging roof, and is nonfunctional and unusable. Exh. 4; Tr. I-54, 107, 163-164; View.
6. John J. Youmell, Jr. has stored materials on the 57 Fomer Property since 1986. Since 2005, John J. Youmell, Jr. has annually been assessed taxes by the Town of Southampton Assessor on personal property located at the 57 Fomer Property. He was observed on the 57 Fomer Property within the last year. Sean Youmell has also stored multiple vehicles, trailers, and construction equipment on the 57 Fomer Property. At some time in the previous four years, at least one neighbor has complained to the Town about the objects being stored on the 57 Fomer Property. Exhs. 4, 12, 19; Tr. I-49, 104-106, 109-110, 122-126, 137, 140-141; View.
7. Richard Oleksak, the Building Commissioner and Zoning Enforcement Officer for the Town of Southampton (Town), testified. Mr. Oleksak has held his position for nine years. His duties include issuing building permits, conducting inspections, and enforcing the Zoning By-Laws. Tr. I-15-16, 55-56.
8. On October 25, 2009, Mr. Oleksak observed multiple vehicles or equipment at one or both of the 57 and 67 Fomer Properties. He could not distinguish from his vantage point on Fomer Road the boundaries between the 57 Fomer Property, the 67 Fomer Property, and the property between the two. He considered the 57 Fomer Property and the 67 Fomer Property to be one lot. Tr. I-19, 34-35.
9. On October 27, 2009, after viewing the Property, Mr. Oleksak wrote a letter to John J. Youmell, Jr., informing him that he was in violation of the Zoning By-Laws of the Town of Southampton. The letter referred only to the 67 Fomer Property. It ordered John J. Youmell, Jr. to remove all construction equipment and unregistered vehicles from the 67 Fomer Property immediately. Exh. 11; Tr.1-19-22.
10. Mr. Oleksak sent the letter to John J. Youmell, Jr., even though at that time Sean Youmell was the record holder of the Property, because the Southampton street listings listed John J. Youmell, Jr. in connection with the two Properties. Mr. Oleksak was not aware at that time if John J. Youmell, Jr. owned any of the equipment and materials he observed. Tr. I-22.
11. Approximately three days after the letter was sent, John J. Youmell, Jr. met with Mr. Oleksak in his office. After this meeting, Mr. Oleksak understood that John J. Youmell, Jr. was going to clean either Property. Tr. I-27-28.
12. On or around October 20, 2010, Mr. Oleksak drove by the 57 Fomer Property and the 67 Fomer Property to see if they were being cleaned up. It appeared to him that nothing was being done. Tr. I-28.
13. On October 21, 2010, after having viewed the two Properties, Mr. Oleksak sent another letter to John J. Youmell, Jr. This letter also referred only to the 67 Fomer Property, ordering him to have that Property in compliance with the Zoning By-Laws by November 30, 2010. The letter stated that if the order was not complied with, a court order would be filed against John J. Youmell, Jr. Exh. 13; Tr. I-28-31.
14. Subsequent to the October 21, 2010 letter, John J. Youmell, Jr. visited Mr. Oleksaks office on multiple occasions. These visits occurred monthly, and as a result of the visits, Mr. Oleksak understood that John J. Youmell, Jr. was working on bringing the two Properties into compliance with the Zoning By-Laws. Tr. I-31-32.
15. No written enforcement orders were issued in relation to the Property between October 21, 2010 and March of 2013. During that time period, Mr. Oleksak observed that a couple of vehicles had been removed from the 57 Fomer Property. Tr. I-32-33.
16. On March 5, 2013, Mr. Oleksak met with the Select Board of the Town of Southampton (Select Board) to discuss the two Properties. The Select Board directed him to have a letter sent from the Towns legal department to John J. Youmell, Jr. Tr. I-33, 36.
17. On March 15, 2013, Patricia A. Cantor, the Town of Southamptons legal counsel, sent a letter to John J. Youmell, Jr. The March 15 letter referred only to the 67 Fomer Property, gave further notice of the alleged zoning violations, and stated that John J. Youmell, Jr. must comply with the Building Inspectors (Mr. Oleksak) orders by 5:00 p.m. on April 5, 2013. If the 67 Fomer Property was not in compliance by that time, Ms. Cantor was authorized by the Town to seek all available legal remedies against John J. Youmell, Jr. in order to obtain compliance with the Zoning By-Laws. Exh. 14; Tr. I-36-37.
18. In April of 2013, John J. Youmell, Jr. met with the Select Board, the Town Administrator, and Mr. Oleksak. This meeting resulted in the understanding on the part of the Town that John J. Youmell, Jr. would have the 57 Fomer Property brought into compliance with the Zoning By-Laws by August 31, 2013. Tr. I-38-40.
19. On September 3, 2013, Mr. Oleksak met with John J. Youmell, Jr. on the 57 Fomer Property. John J. Youmell, Jr. told Mr. Oleksak that he had removed everything he could before the winter came, and that the rest would be removed in the spring of 2014. Following this meeting, Mr. Oleksak sent a letter to the Select Board, in which he noted that some of the vehicles had been removed from the 57 Fomer Property. Tr. I-44.
20. On September 26, 2013, Sean Youmell, John J. Youmell, Jr., the Town Administrator, Mr. Oleksak, and the public attended a public meeting of the Select Board. Sean Youmell showed the Select Board photographs of the ten vehicles that had been removed from the 57 Fomer Property. He told the Select Board that the rest of the vehicles were needed for the sawmill located on the 57 Fomer Property. Tr. I- 40-41.
21. On November 19, 2013, Mr. Oleksak observed various trucks, tractors, and storage trailers on the 57 Fomer Property from Fomer Road. Exh. 3; Tr. I-45.
22. The Town of Southampton filed the complaint in this action on December 2, 2013. At no time prior to the filing of the complaint did either John J. Youmell, Jr. or Sean Youmell inform the Town of Southampton that its efforts to obtain zoning enforcement were directed at the wrong properties or the wrong individuals. Neither John J. Youmell, Jr. nor Sean Youmell ever appealed the October 27, 2009, October 20, 2010, or the March 15, 2013 zoning enforcement letters to the Towns Zoning Board of Appeals. None of these zoning enforcement letters were directed to the 57 Fomer Property; all were directed to the 67 Fomer Property. Exhs. 11, 13, 14; Tr. I- 42, 44, 82.
23. On December 13, 2013, and through the time of trial, the following items were located on 57 Fomer Road:
a. Cord wood saw, homemade
b. Log splitter, homemade
c. Ariens 27-ton log splitter
d. Case forklift 584c
e. Case dozer 450c
f. Swenson sander for Ford F-350
g. 1988 Dodge 150 Pickup truck
h. Prentice log boom
i. International 6 wheel dump truck
j. Ford 6 wheel dump truck
k. 1970 Ford 6 wheel box truck
l. 1979 Gradall G-660
m. Gradall G-1000
n. 1970 International log picker o. 1951 Ford F-350
p. Log picker flatbed body
q. Storage trailer
r. Storage box 20x 8 (3)
s. Misc. steel aluminum
t. Picnic tables (6-8)
u. 1939 Chrysler
v. Motors (3) in their crates for the Army truck
w. 500 gallon fuel tank, empty
x. 1 ton dump body
y. Planer/Edger in Planing Shed
z. Saw and milling equipment in Mill Building
aa. Misc. materials stored inside trailers and trucks
bb. Misc. materials stored inside storage boxes
cc. Stainless steel sander for 6 wheel dump truck
dd. Stone box
ee. 1968 Ford F-600 dump truck
ff. Flatbed for 1968 Ford F-600
gg. Mack MB 400
hh. Army truck 10 wheel
ii. 1980 Gradall G-660 jj. Gradall G-660
kk. 1995 Mack tractor
ll. 1984 Talbert low-bed
mm. 1971 Hill dump trailer
nn. 1978 Grove crane RT65S
oo. Semi trailers (7)
Exhs. 4, 19; Tr. I-49, 137-141, 157; View.
24. John J. Youmell, Jr. is the owner of items identified as CC through JJ in Exhibit 19 and above; Sean Youmell is the owner of all other items listed in Exhibit 19 and above. Exh. 19; Tr. I-158.
25. All of these items are scattered around the 57 Fomer Property. The vehicles, graders, cranes, and trailers are in the open. There are no vehicles or equipment whatsoever on the 67 Fomer Property. Exh. 4; Tr. I-68; View.
26. There are ten registered vehicles on the 57 Fomer Property: the 1995 Mack tractor, the 1984 Talbert low-bed trailer, the 1978 Grove crane, and the seven semi trailers. These vehicles and trailers are registered in Maine and Vermont to Parsons Enterprises. The remaining vehicles are unregistered. Exh. 15, 16, 17, 18; Tr. I-122-123, 127-133, 160.
27. Sean Youmell testified that he cuts and processes cord wood on the 57 Fomer Property that he uses for his home. He takes about eight cords of wood from the 57 Fomer Property each year. He testified that he last cut up a tree on the 57 Fomer Property in September of 2013 and that he last cut down a tree on the 57 Fomer Property in August of 2013. At the time of trial, there were piles of cut wood on the 57 Fomer Property. Exh. 4; Tr. I-50-51, 110, 133-135, 150; View. I credit Sean Youmells testimony.
28. Sean Youmell testified that in order to cut and process wood on the 57 Fomer Property, he uses the Case bulldozer, the Case forklift, the cord wood saw, and the log splitter. The Case bulldozer is used to pull trees out of the wooded areas of the 57 Fomer Property; the Case forklift is used to move around logs and to move the log splitter; the cord wood saw is used to cut wood that is too small for a chainsaw; the log splitter is used to split larger logs into smaller pieces. Tr. I-135-136. I credit Sean Youmells testimony.
29. Sean Youmell also testified that he uses the 1988 Dodge pick-up truck, the International dump truck, and the U-Haul truck to support his wood cutting activity. The 1988 Dodge pick-up truck, which has a plow, is used to plow a path to the wood pile in case of snow; the log splitter is stored in the International dump truck to prevent it from being stolen; the U-Haul truck is used to store smaller tools and supplies. Tr. I-138-140. I credit Sean Youmells testimony.
30. Mr. Oleksak, the Building Inspector, considers the foregoing to be accessory to a noncommercial forestry use. Tr. I-76-81.
31. None of the material, equipment or vehicles stored on the 57 Fomer Property is currently used for construction or commercial purposes on- or off-site. Tr. I-133-134.
32. Sean Youmell formerly owned a commercial trucking business, which ended in December of 2005. Tr. I-134.
33. Sean Youmell testified that it would take him three years to relocate to another suitable site all materials currently on the 57 Fomer Property that are not related to his wood cutting activities, and a year and a half to simply remove and junk all that material. Tr. I-143.
34. Section V.A of the Zoning By-Laws states as follows: Except as provided by the Zoning Act or in this By-Law, in each district, no building, structure, water body, or lot shall be used or occupied except for the purposes permitted in the district as described in this section. Any use not listed shall be construed to be prohibited.
Exh. 2, p. 5-1.
31. Zoning By-Laws Section V, Table 1, Subheading Agricultural permits Noncommercial forestry in the R-R Zoning District as of right. Noncommercial forestry is not defined in the Zoning By-Laws. Commercial forestry is defined as the cutting of more than 1,500 cubic feet, or 11.7 cords, of timber in a calendar year. Mr. Oleksak interprets this definition to mean that the cutting of less than 11.7 cords of timber in one year constitutes noncommercial forestry. This interpretation is reasonable. Exh. 2, pp. 2-2, 5-3; Tr. I-59-60, 69, 84.
32. Zoning By-Laws Section V, Table 1, Subheading Wholesale, Transportation and Industrial Uses prohibits construction industry and supplies as well as open storage of materials and equipment in the R-R Zoning District. Exh. 2, p. 5-4.
33. Zoning By-Laws Section V, Table 1, Subheading Accessory Uses, Industrial prohibits Accessory outside storage necessary to operation of principal use in the R-R Zoning District. Exh. 2, p. 5-5.
34. Accessory use is defined in the Definitions section (Section II) as A use incidental and subordinate to the principal use of a structure or lot, or a use not the principal use which is located on the same lot as the principal structure. Exh. 2, p. 2-7.
35. Zoning By-Laws Section V, Table 1, Subheading Accessory Uses, Industrial allows for Storage of one unregistered motor vehicle not less than 25 feet from any front lot line and Storage of one unoccupied mobile home or trailer...not less than 25 feet from any front lot line in the R-R Zoning District. No provision of the Zoning By-Laws directly addresses the storage of registered vehicles. As a matter of practice, the Town allows registered vehicles to be stored on a property used as a principal residence. Mr. Oleksak testified that he would consider it reasonable to use a registered vehicle for storage on a property with a principal use of noncommercial forestry. Exh. 2, p. 5-5; Tr. I-82, 86-87.
Discussion
In its First Amended Complaint, the Town seeks enforcement against both John J. Youmell, Jr. and Sean Youmell for violations of the Zoning By-Laws at both the 57 Fomer Property and the 67 Fomer Property. The First Amended Complaint states as counts three alleged zoning violations. Count One is for unlawful construction industry and supplies; count two is for unlawful open storage of materials and equipment; and count three is for unpermitted storage of unregistered vehicles and trailers. The Town seeks a judgment (a) ordering the defendants to immediately cease using both Properties for construction industry purposes, (b) ordering the defendants to remove all openly-stored materials and equipment, construction- related or otherwise, from both Properties within five business days, (c) ordering the defendants to remove all trailers and unregistered motor vehicles from the both Properties within five business days, and (d) allowing the Zoning Enforcement Officer and his authorized agents to enter both Properties at reasonable times and with reasonable notice to inspect the Properties for compliance with the judgment.
The 67 Fomer Property. At trial, I allowed the defendants motion for involuntary dismissal of all claims regarding the 67 Fomer Property. I now affirm that dismissal.
Notwithstanding the testimony of Mr. Oleksak and Mr. Cauley, it is not difficult to locate, at least generally, the boundary between the 67 Fomer Property and the 57 Fomer Property, especially given that lying between the two parcels along their frontage on Fomer Road are the Ancient Town Way and 51 feet of frontage of an unrelated property. There is no evidence that any of the equipment, materials, or vehicles that the Town complains of is located on the 67 Fomer Property, and the view disclosed that all of the objects at issue are located on the 57 Fomer Property. The Towns claims regarding the 67 Fomer Property are dismissed without prejudice.
Exhaustion of Remedies. The Town argues that the defendants cannot object to this action because they failed to appeal the October 27, 2009, October 20, 2010, or the March 15, 2013 zoning enforcement letters to the Zoning Board of Appeals pursuant to G.L. c. 40A, §8. In zoning cases principles of exhaustion require that a person aggrieved by the action of a local zoning administrator (the building inspector in most municipalities) must first attempt to redress the grievance through the local board of appeals before seeking judicial review. Quincy v. Planning Bd. of Tewksbury, 39 Mass. App. Ct. 17 , 20 (1995). Generally, in cases where a person aggrieved has had their complaint dismissed due to a failure to exhaust administrative remedies, that person had initiated the judicial proceeding in question. See Clark & Clark Hotel Corp. v. Building Inspector of Falmouth, 20 Mass. App. Ct. 206 , 213-214 (1985) (where plaintiff challenged the order of a building inspector in the Superior Court, case dismissed for plaintiffs failure to exhaust administrative remedies); Neuhaus v. Building Inspector of Marlborough, 11 Mass. App. Ct. 230 , 234-235 (1981) (plaintiffs mandamus action dismissed for failure to pursue administrative remedies under G.L. c. 40A, §§ 7, 8, and 15); see also Board of Selectman of Tewksbury v. Granfield, 17 Mass. App. Ct. 1101 (1984) (unpublished decision) (plaintiff board of selectmen required to pursue administrative remedies under G.L. c. 40A, §§ 7, 8 and 15 before seeking relief in court). Here, the Town initiated the litigation. Moreover, the zoning enforcement letters all concerned the 67 Fomer Property, which is no longer at issue in this case, rather than the 57 Fomer Property on which the disputed vehicles and equipment lie. It is correct, as the Town argues, that in discussions between the Town and the Youmells, the Youmells were aware that it was the 57 Fomer Property that was at issue. Nevertheless, given that the enforcement letters did not concern the 57 Fomer Property and it is the Town that brought this action, not the Youmells, fairness requires that the Youmells not be held to have failed to exhaust administrative remedies but rather be permitted to defend this action.
The 57 Fomer Property. The Town seeks a judgment ordering the removal of all the vehicles, equipment, and other materials stored on the 57 Fomer Property, on the grounds that their storage there constitutes either the use of the Property for construction industry and supplies or open storage of materials and equipment, both of which uses are not permitted in the R-R Zoning District in which the 57 Fomer Property lies. The Youmells counter that Sean Youmells principal use of the 57 Fomer Property is for noncommercial forestry, which is permitted in the R-R Zoning District.
The question, then, is the principal use of the 57 Fomer Property. Terms used in a zoning by-law should be interpreted in the context of the by-law as a whole and, to the extent consistent with common sense and practicality, they should be given their ordinary meaning. Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass. App. Ct. 249 , 254 (1990). Where there is no express definition, the meaning of a word or phrase used in a local zoning enactment is a question of law, . . . and is 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), citing Kurz v. Board of Appeals of N. Reading, 341 Mass. 110 (1960). A principal use is defined in the Zoning By-Laws as the main or primary purpose for which a structure or lot is designed, arranged, or intended, or for which it may be used, occupied, or maintained under this by-law. Exh. 2, Definitions, p. 2-7. This definition in the Zoning By-Laws reflects the singular nature of principal use. Brandon v. Zylinski, 15 LCR 524 , 529 (2007). An owner of property in the Town of Southampton is allowed to engage in only one principal use.
There is no definition for noncommercial forestry in the Zoning By-Laws. Commercial forestry is defined as the cutting of timber where the quantity exceeds 5,000 board-feet and/or cordwood where the quantity exceeds 1, 500 cubic feet in any one calendar year. Exh. 2, Definitions, p. 2-2. These measurements convert to 11.7 cords of wood. Mr. Oleksak defines noncommercial forestry as the cutting of timber where the quantity is less than 11.7 cords per year. Mr. Oleksaks interpretation of the Zoning By-Laws is reasonable, and I defer to it. See Pelullo v. Croft, 86 Mass. App. Ct. 908 , 909 (2014). Sean Youmell uses the 57 Fomer Property to cut trees into cord wood for his home. He testified that he last cut down a tree on the 57 Fomer Property in August of 2013, and that he last cut up a tree for cord wood on the 57 Fomer Property in September of 2013. He testified that he generally cuts eight cords of wood on the Property per year. In addition, the view, the photographs and Mr. Oleksaks testimony show cut wood on the 57 Fomer Property. I find that Sean Youmells principal use of the Property is for noncommercial forestry.
Sean Youmell testified that he uses the following equipment for the felling of trees and cording of wood: the Case bulldozer, the Case forklift, a cord wood saw, a chainsaw, and a log splitter. In addition to those items, Sean Youmell testified that the following vehicles and equipment are a constituent part of the noncommercial forestry use: the 1988 Dodge pick-up truck, the International dump truck, and a U-Haul truck used to store smaller tools and supplies. The Defendants argue that the use of these enumerated items is not an accessory use but a constituent use. Their use, however, is not at issue; the question is whether the storage of any of these vehicles and equipment on the 57 Fomer Property is a permitted accessory use to the principal noncommercial forestry use. Accessory use is defined as a use incidental and subordinate to the principal use of a structure or lot, or a use not the principal use which is located on the same lot as the principal structure. Exh. 2, Definitions, p. 2-7. Whether a use is incidental involves a determination as to: (1) whether the use is subordinate and minor in significance to the primary use and (2) whether there is a reasonable relationship between the use in question and the primary use. Harvard v. Maxant, 360 Mass. 432 , 438 (1971). In this case, the primary use of these items is for the cutting of trees and the cording of wood on the 57 Fomer Property. The storage of those items on the 57 Fomer Property is both subordinate and reasonably related to that primary use. Each of these items is used in connection with the permitted noncommercial forestry, and the storage of them on the Property constitutes an accessory use.
This does not end the inquiry. The Zoning By-Laws define which accessory uses are permissible and which are not. In particular, the By-Laws provide that [a]ccessory outside storage necessary to operation of principal use is not permitted in the R-R zone, and that [s]torage of one unregistered motor vehicle not less than 25 feet from any front line is permitted. Exh. 2, Use Regulations, p. 5-5. As the Zoning By-Laws provide that [a]ny use not listed shall be construed to be prohibited, accessory outside storage of more than one unregistered motor vehicle is not permitted in the R-R zone. Exh. 2, Use Regulations, p. 5-1. Applying these provisions to the accessory uses at the 57 Fomer Property, the Case bulldozer, Case forklift, cord wood saw, chainsaw, and log splitter cannot be stored outside; they must be stored inside and out of view. The 1988 Dodge pick-up truck, the International dump truck, and the U-Haul truck are each unregistered vehicles. Only one of them may be stored outside on the 57 Fomer Property; the others must be stored inside. Sean Youmell testified that the International dump truck is used to store the log splitter to prevent it from being stolen. If the dump truck is the one unregistered vehicle stored outside on the 57 Fomer Property, there is no reason that it cannot be used to store other equipment. If, instead, the 1998 Dodge pick-up truck or U-Haul truck is stored on the 57 Fomer Property, either of them may be used for storage.
Apart from the items for the noncommercial forestry use discussed above, there are stored on the 57 Fomer Property many other materials, equipment and vehicles which are listed on Exhibit 19. The view and the photographs included in Exhibits 3 and 4 showed that these materials, equipment, and vehicles are openly stored on the Property; many of the vehicles and equipment appear to be broken-down and covered in vegetation. Many of these vehicles and equipment were used by Sean Youmell in a trucking business. Their storage on the 57 Fomer Property is not accessory to the permitted noncommercial forestry use. Rather, their storage constitutes the [o]pen storage of materials and equipment or construction industry and supplies, neither of which is a permitted use in the R-R district. The finding that the principal use of the 57 Fomer Property is noncommercial forestry does not entitle the Defendants to store materials, equipment, or vehicles on the Property in a way that violates the Zoning By-Laws. Sean Youmell enumerated the items he uses for the principal noncommercial forestry use; the storage of any other materials, pieces of equipment or vehicles on the 57 Fomer Property is prohibited by the Zoning By-Laws.
Ten of the vehicles on the 57 Fomer Property are registered, including the 1995 Mack tractor, the 1984 Talbert low-bed trailer, the 1978 Grove crane, and the seven semi-trailers. The defendants argue that they should be allowed to store any number of registered vehicles on the Property. They argue that because the Zoning By-Laws specifically limit the storage of unregistered vehicles but say nothing about registered vehicles, this means that either there is no limit to the storage of registered vehicles on any property, or that one registered vehicle may be stored. This argument fails. Section V.A of the Zoning By-Laws provides that [a]ny use not listed shall be construed to be prohibited. Exh. 2, Use Regulations, p. 5-1. The Zoning By-Laws do not permit the storage of registered vehicles on properties as an enumerated principal use in the R-R District. Storage of registered vehicles may be considered an accessory use, and, as a matter of practice, the Town allows registered vehicles to be stored on a property used as a principal residence. The 57 Fomer Property, however, is not used as a principal residence, but rather for noncommercial forestry, and none of the registered vehicles are used in connection with that use. Therefore, the storage of the registered vehicles is not accessory to the 57 Fomer Propertys principal use, but is part of the non-permitted open storage of materials and equipment discussed above. That the motor vehicles are registered does not render their storage permitted under the Zoning By-Laws.
Based on the foregoing, a declaration shall enter that (a) the 57 Fomer Property has a principal use of noncommercial forestry, a permitted use in the R-R district, (b) the storage of the equipment and vehicles used in connection with the noncommercial forestry use is an accessory use, and (c) none of this equipment or vehicles may be stored outside except for one unregistered vehicle. A further declaration shall enter that the storage of the remaining items, equipment and vehicles that are on the 57 Fomer Property is not permitted under the Zoning By- Laws.
John J. Youmell, Jr. I find that both defendants are jointly liable for the zoning violations on the 57 Fomer Property. Defendant John J. Youmell, Jr. is not the record holder of the Property, and it is argued that since he does not have the legal authority to cure any zoning violations, he should not be subject to zoning enforcement on the 57 Fomer Property. Zoning enforcement under G.L. c. 40A, § 7 is not limited to the owners of a property. The statute provides that any person allegedly in violation can be subject to zoning enforcement. G.L. c. 40A § 7. Individuals who have an interest in a property, including a tenancy, have been subject to zoning enforcement. See Ragonese v. Manzi, 15 LCR 566 , 567, 570 (2007) (zoning enforcement ordered against owner of the property in question and tenant responsible for the zoning violation).
John J. Youmell, Jr. has a sufficient interest in the 57 Fomer Property to justify his being subject to zoning enforcement. John J. Youmell, Jr. owned the 57 Fomer Property from 1986 to 2002, when he deeded it to his son, Sean Youmell, for the nominal consideration of one dollar. He has stored items on the 57 Fomer Property since 1986; since 2005 he has been assessed annual taxes on personal property located on the Property. Most importantly, John J. Youmell, Jr. held himself out to Mr. Oleksak and the Town of Southampton as the owner of the 57 Fomer Property throughout the enforcement process initiated by the Town. These facts indicate that John J. Youmell has a significant interest in the 57 Fomer Property, and therefore is subject to zoning enforcement.
Remedy. As discussed, Sean Youmell and John J. Youmell, Jr. are entitled to store the materials, vehicle and equipment associated with their noncommercial forestry on the 57 Fomer Property, so long as it is not stored outdoors, except that they may store one of the unregistered vehicles outside. The Town seeks a judgment ordering the removal of the remaining materials, equipment, and vehicles that are stored on the 57 Fomer Property in violation of the Zoning By- Laws. The Town is entitled to such an order. The question is how long the Youmells should be given to remove these materials, equipment, and vehicles. Sean Youmell testified that he would need three years to sell or relocate his vehicles and equipment, or a year and a half to remove and junk them. A year and a half is far too long to permit a zoning violation to continue, let alone three years. That said, I find that it is not fair to expect the Youmells to remove everything immediately, and that equity requires that the Youmells be given a reasonable time to remove the materials, equipment and vehicles. Sean Youmell and John J. Youmell are ordered to provide for indoor storage of the materials, equipment and vehicles accessory to their noncommercial forestry use, except for one unregistered vehicle, within 120 days of the date of judgment, and are further ordered to remove all other materials, equipment and vehicles currently stored on the 57 Fomer Property within 120 days of the date of the judgment.
Judgment accordingly.