Home GSTVS, LLC v. FALMOUTH PLANNING BOARD, PATRICIA H. KERFOOT, JIM FOX, PAUL DREYER, ROBERT LEARY, KENNETH MEDEIROS, RALPH E. HERBST, and DOUGLAS C. BROWN in their official capacities as members of the Town of Falmouth Planning Board.

MISC 14-486885

March 21, 2016

Barnstable, ss.



GSTVS, LLC (GSTVS), filed its complaint pursuant to G.L. c. 40A, §17 on October 3, 2014, naming as defendants the members of the Falmouth Planning Board (the Board). The complaint appealed the Board’s September 17, 2014, decision, which denied GSTVS’s application for a special permit. The Board filed its Answer on October 27, 2014. The case management conference was held on November 6, 2014.

On December 1, 2015, a view of the subject property was taken. A trial was held on December 3 and 4, 2015. The court heard testimony from Joseph D. Borowski, Gary S. Tavares, Jennifer Conley, Laura M. Moynihan, James P. Holmes, Arnold O. Johnson, Patrick J. Dale, Douglas C. Brown, Joseph Bucchanio, Danielle Whalen, Paul C. Dreyer, Randolph J. Rapoza, Brian A. Currie, Olive Fitzpatrick, Elatio R. Gore, and George A. Chapman. Exhibits 1-29 were marked. On December 11, 2015, GSTVS filed its Post-Trial Requests for Findings of Fact, and Post-Trial Memorandum of Law and Requests for Rulings of Law and the Board filed its Trial Memorandum. Closing arguments were heard on March 11, 2016. This matter was taken under advisement. This Decision follows.

As set forth more fully below, I find that the Board’s decision to deny the special permit did not have substantial basis in fact and was, thus, arbitrary and capricious.


Based on the view, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact:

1. GSTVS is the owner of record of a parcel of land known as 25 Crocker Road, East Falmouth, MA (Locus), recorded in the Barnstable County Registry of Deeds (registry) on June 17, 2011 in Book 25513, Page 184. See Trial Exhibits (Exhs.) 4, 26 ¶ ¶1, 4.

2. The Locus is comprised of 6.65 acres and is located in an “Agricultural A” zoning district. A nursery is a permitted principal use in an Agricultural district. Exhs. 1 at § 240-13, 26 ¶¶ 5-6.

3. Francisco Tavares, Inc. (FTI), a landscaping company, was GSTVS’s predecessor-in-interest. FTI held record title to the Locus from 1996 until it was conveyed to GSTVS in 2011. Gary Tavares (Tavares) is the CEO of FTI and the manager of GSTVS. Tr. 1:40; Exhs. 4, 26 ¶ 7.

4. The Locus has been in the Tavares family since the 1920s and has always been put to agricultural use. During the 1930s, vegetables and fruit were grown on the Locus. Glass greenhouses were erected in the 1940s. Beginning in the 1950s, Tavares’ father began using the Locus as a small nursery for his landscaping business. From the 1960s until the 1990s, a retail nursery and floral shop existed at the site. During the 1990s, use of the Locus changed from a retail nursery to a commercial nursery where FTI grew annuals and perennials primarily to be sold for landscaping projects. Tr. 1:44-48.

5. From the late 1990s through 2004, FTI cleared land at the Locus to expand its nursery operations. FTI planted a tree farm, constructed plastic greenhouses, built a small garage for a generator for the greenhouses during the winter, and moved a house onto the site for offices and an apartment, as well as other changes. As of 2004, FTI was the main occupant at the Locus. Tr. 1:48-52; Exh. 15.

6. In 2000, Section 240-38.M of the Falmouth Zoning Code (the Bylaw) was proposed by FTI and specifically enacted with the Locus parcel in mind. Section 240-38.M states in part:

The Planning Board may grant a special permit to the owner of any lot(s) not located in a Water Resource Protection District, any portion of which is currently in agricultural use for commercial nursery operations, to devote all or a portion of the lot(s) for the storage of equipment and supplies, and the fabrication of subassemblies, and parking of wheeled equipment for nonagricultural uses . . .

(emphasis added). The Locus is not located in a Water Resource Protection District. Tr. 1:56-60, 156-159; 2:86-87; Exhs. 1, 2, 26 ¶¶ 10, 11.

7. Nursery is defined in Section 240-13 of the Bylaw as:

A “[p]lace where tree, shrubs, and plants are grown, whether from seed or otherwise, including plants maintained for sale on or off the premises, and, in conjunction with the sale of such plants, only such quantities of peat moss, humus, mulches, fungicides, insecticides, chemicals and fertilizers as intended to nourish and/or preserve such plants.”

Exh. 1.

8. In 2004, FTI applied for a special permit under Section 240-28.M of the Bylaw to store non-agricultural materials and equipment at the Locus. Tr. 1:60-62; Exhs. 1, 26 ¶ 9.

9. By a decision dated September 8, 2004 (2004 Decision), the Board voted to grant FTI’s special permit application (2004 Special Permit). The Board found there was an existing 7.41 acre commercial nursery at the Locus, the materials that Tavares sought to store were previously accessory to the commercial nursery operation, and the Locus was suitable for the storage of such materials. Tr. 1:61-62; Exhs. 2, 3, 26 ¶ 8.

10. Since at least 2005, nursery areas on the Locus have been used to grow large holly trees, cedar trees, cypress, dogwoods, maple, red, green maples, azaleas, boxwood, bayberry, and blueberries. FTI also sells lesser-quality trees (known as B, C, and D grade) for conservation-repair projects. FTI obtains these lower-quality trees at no cost from work sites it clears. About 40% of the trees sold in recent years have been of this lower quality range, with approximately 55% of the current stock in this quality range. FTI sometimes keeps individual trees at the Locus for up to a couple of years. Tr. 1:76-77, 80-85; Exh. 28; View.

11. FTI’s work substantially decreased when residential construction in Falmouth severely declined as a result of the 2008 financial crisis (which Tavares not unreasonably characterized as “the depression”). As a result, the quantity of nursery products coming in and being sold declined, and use of the greenhouses ceased. FTI had as many as 140 employees prior to the depression, and now only employs about 40. Tr. 1:33-38, 57-58, 62-63; 121-122; Exhs. 10, 11, 14.

12. Since 2009, less trees have been added to the nursery areas because FTI has had fewer jobs in which it was clearing sites. However, FTI continues to maintain numerous trees at the Locus and operate as a nursery agent. A 2012 Certificate of Agricultural Composting Registration and a 2015 Nursery Agent License were issued to FTI. Invoices indicate that FTI purchased and nursed various plants at the site for between 65 and 105 days, and later sold some of these plants to another landscaping company. Tr. 1:82-85, 89-99; 109- 114; Exhs. 5, 10, 11, 14, 17, 22-24; View.

13. GSTVS took title to the Locus from FTI in June 2011 as part of the financial restructuring of FTI. FTI continues to rent land from GSTVS and operate its business at the Locus. Tr. 1:62-63, 141-142; Exh. 4.

14. As of May 2014, four independently owned companies operated at the Locus with each company using a different area as depicted in a 2014 survey completed by BSS Design:

Area A: JB Tree and Landscape

Area B: Cape Cod Tree Experts

Area C: Clipper Landscaping and FTI Tr. 1:63-64, 70, 126-133; Exh. 8; View.

15. JB Tree and Landscape, Inc. is a landscape design, construction and maintenance, and woodcutting business. JB Tree brings in trees from other locations and processes the trees into cordwood. Woodcutting takes place at Area A on the Locus 10-20 days per year, one day of which took place during the Court’s site visit. Plants are also kept in an irrigated section at the Locus for one to three months. Tr. 1:64, 128, 230-234; Exhs. 12- 13; View.

16. Cape Cod Tree Experts, LLC is a tree-maintenance business. The work is primarily done offsite, but they sometimes work from Area B, using a chainsaw and a wood splitter to cut and split the wood. Company vehicles are also stored on Area B. Tr. 1:177-182; Exhs. 12-13; View.

17. Clipper Landscaping is a landscape construction and maintenance business. Although much work is done offsite, Clipper receives growing plants and grows nursery stock at the Locus for periods of time. Invoices from 2013 and 2014 show nursery stock, some of which is growing, that was delivered to Clipper at the Locus. Tr. 1:64; 2:7-12; Exhs. 12, 27; View.

18. There are currently two tree farm areas on the Locus used to grow nursery stock. The first, smaller area is along the driveway, just past the greenhouses, close to Crocker Road. The second, larger tree farm area is located towards the rear of the parcel. Aerial photographs show that the larger tree farm area was used as a nursery in 2005, and at all times since, with vegetation in the area changing over time as plants were brought in and taken out. Tr. 1:32-135; Exhs. 10, 11; View.

19. Multiple invoices from 2015 show the sale of trees, which were part of the nursery on the Locus, to individuals and other landscaping companies. Tr. 1:99-107; Exhs. 18-21.

20. Dale Tree Movers and Tree Farm, LLC, a Falmouth business that transplants and installs mature trees for landscaping companies, architects, and homeowners, has purchased 30 to 35 trees from Tavares over the past six or seven years, with the most recent purchase in the month prior to the trial. Tr. 1:195-199, 234-235; Exhs. 5, 20.

21. By an application dated May 27, 2014 (2014 Application), GSTVS sought a special permit pursuant to Section 240-38.M of the Bylaw for storage at Locus of non- agricultural equipment and materials and the parking of wheeled equipment for nonagricultural uses. The 2014 Application also sought to modify the 2004 Special Permit, if deemed necessary by the Board, as to the 1.2 acres subject to the 2004 Special Permit and allow for three new storage areas for non-agricultural materials, vehicles, and equipment outside the 1.2 acres. The equipment described to be stored is used for moving plants, trees, and wood and except one (a bucket truck), all equipment listed in the application had been in use at the Locus prior to 2014. Tr. 1:65-74, 170; Exhs. 6, 16, 26 ¶ 9.

22. A public hearing was held on July 8, 2014. Counsel for GSTVS and Town planner Brian Currie visited the Locus on July 23, 2014. The Board visited the Locus on July 31, 2014. At trial, Douglas C. Brown, a Board member, testified that at the view he expected to see a nursery that that included “plants for sale and a large supply of trees that looked ready to be sold.” Paul C. Dreyer, another Board member, also testified that although he saw trees and plants at the view, they “were not in an organized manner . . . did not appear to be in rows” and expected “it to be organized if it was a commercial nursery.” Both Brown and Dreyer did, however, testify that they saw a nursery area where trees, shrubs and plants were growing, though not in the organized fashion they were expecting. Tr. 1:171, 173-175, 204, 220-226; 2:37-39.

23. Based on testimony at the hearing and the site visit, the Board denied GSTVS’s 2014 Application on September 17, 2014 (Decision). Exh. 9.

24. The Board stated three grounds for its denial. The Board found that “currently no portion of the lot(s) are in agriculture use for commercial nursery operations,” and that “none of the requested vehicles, equipment or materials to be stored . . . were previously accessory to the supposed existing commercial nursery operations.” In addition, the Board determined that a Special Permit under Section 240-28M could only be issued to an owner of the parcel and “[i]t is not intended for tenants that have no previous relationship to the owner’s commercial nursery operations.” Exh. 9.

25. On October 3, 2014, GSTVS appealed the Board’s denial of the special permit, pursuant to G.L. c. 40A, § 17.


An appeal of a zoning board of appeals decision is de novo; that is, in an action under § 17 the “court shall hear all the evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board . . . or make such other decree as justice and equity may require.” G.L. c. 40A, § 17. Section 17 review of a local board’s 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 that "[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. Aquinnah Plan Review Committee, 21 LCR 565 , 570 (2013) (noting the court must “review the factual record without deference to the board's findings”). After finding the facts de novo, the court’s “function on appeal” is “to ascertain whether the reasons given by the [board] had a substantial basis in fact, or were on the contrary, mere pretext for arbitrary action.” Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). The court, however, must give deference to the local board’s decision and may only overturn a decision if it is "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) citing Gulf Oil Corp. v. Bd. of Appeals of Framingham, 355 Mass. 275 , 277 (1969); Britton, 59 Mass. App. Ct. at 72; Kitras, 21 LCR at 570.

In determining whether a decision is “based on legally untenable ground,” the court first looks at whether it was decided on a standard, criterion or consideration not permitted by the applicable statutes or by-laws. Here, the approach is deferential only to the extent that the court gives “some measure of deference” to the local board’s interpretation of its own zoning by-laws. Once the court determines the content and meaning of statutes and by-laws it looks at whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application. Britton, 59 Mass. App. Ct. at 73. Finally, the court finds the facts and determines whether “any rational board could” come to the same conclusion. Id. at 74. This step is “highly deferential,” but deference is not abdication. Id. “As a consequence, the board’s discretionary power of denial extends up to those rarely encountered points where no rational view of the facts the court has found supports the board’s conclusion that the applicant failed to meet one or more of the relevant criteria in the governing statute or by-law.” Id. at 74-75. If the board’s decision is found to be arbitrary and capricious, the court should annul the decision. See Mahoney v. Bd. of Appeals of Winchester, 344 Mass. 598 , 601-602 (1962).

Based on the view and the evidence presented at trial, the Board erred in making a factual finding in its Decision that there was no commercial nursery located at the Locus as of 2014. While business may have diminished as a result of the recession beginning in 2008, the evidence is overwhelming that a commercial nursery, which complies with the Bylaw definition of “nursery,” does in fact operate at the Locus. A “nursery” is defined as a “[p]lace where trees, shrubs and plants are grown, whether from seed or otherwise, including plants maintained for sale on or off the premises.” Exh. 1 at § 240-13. Numerous photographs showed growing plants and trees at the Locus from 2005 to 2015. Exhs. 10-14. Testimony from Tavares, the tenants of the Locus, and other landscaping business owners demonstrated that portions of Locus have been, and are currently in agricultural use for commercial nursery operations. Although the greenhouses are currently vacant, there are two tree farm areas on the Locus used to grow nursery stock. All this was confirmed by my view on December 1, 2015. Numerous invoices from 2015, showing the sale of trees from the Locus, establish that despite the business’s decline in landscaping work after the recession, it continued to be an active commercial nursery. Moreover, Board members Brown and Dreyer, who visited the Locus in 2014, testified to seeing growing trees, shrubs, and other plants that satisfy the Bylaw’s definition of a “nursery.” Based on the ample evidence, any rational planning board would have and should have concluded that a commercial nursery operates on the Locus. In fact, it is not clear whether the Board actually debates the existence of a nursery on the Locus, so much as the existence of a commercial nursery.

Much of the Board’s argument in its post-trial submission focuses on the term “commercial,” and whether the activity of the nursery was sufficient to support the existence of a commercial operation. The Board points to a lack of evidence of new nursery stock being purchased and added to the inventory, and an assortment of random trees being sold off to occasional customers. Because the term “commercial” is not defined in the Bylaw, the ordinary meaning of the word must be ascertained. Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass. App. Ct. 249 , 254 (1990) ("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"). Ballentine’s Law Dictionary defines “commercial” as “pertaining to the purchase and sale or exchange of goods and commodities.” Ballentine’s Law Dictionary (3rd ed. 2010); see also Jordan v. Tashiro, 278 U.S. 123, 128 (1928) (stating that the terms “commerce” or “commercial” generally connote the purchase and sale or exchange of goods and commodities). Based on the ordinary meaning of “commercial” and its application to this case, there is no requirement that the activity of the nursery be substantial to be considered “commercial.” The Bylaw has no minimum requirement for on-site retail purchases and sales of nursery products, and no minimum area requirement for nursery use. Exh. 1 at § 240-38.M. The Bylaw requires only a “portion” of the lot be devoted to nursery use. Id. So long as there is some exchange of nursery products, as GSTVS has shown through various invoices and the testimony at trial, the Locus satisfies the definition of a commercial nursery under the Bylaw.

The Board’s other rationales for denying the special permit also have no basis. The Board found that none of the requested vehicles, equipment, or materials to be stored were previously accessory to the commercial nursery operation. Section 240-48M of the Bylaw, however, does not contain any requirement that the particular vehicles, equipment, or materials listed in the application must have been previously used at the site in nursery operations. The Bylaw merely requires that the site must have previously been used for the storage of equipment, vehicles, and supplies which were accessory to nursery operations. It is the storage use which is relevant, not the specific items that were stored there. Given that most equipment has a finite lifespan and is replaced over time during the normal course of operation, this is a rational interpretation of the Bylaw. The evidence at trial established that all of the items to be stored that were listed on the 2014 Permit Application, with the exception of one, were previously accessory to the commercial nursery operations at the Locus.

Finally, the Board incorrectly concluded that because a special permit issues only to the owner of a parcel, tenants may not operate under a special permit issued to a lot owner pursuant to Section 240-38M. This interpretation is without support. There is nothing in the Bylaw barring a tenant of a commercial nursery from operating under a special permit issued to the owner. Id. The Bylaw does not contain such a restriction for tenants and the Board was wrong to read one into the language without a basis in law or fact.

I find that the Board erred in its determination that the Locus was not being used as a commercial nursery and had no support for the other rationales it used to deny the special permit. The Decision was an abuse of the Board’s discretion, arbitrary, capricious, and contrary to the zoning bylaws and G.L. c. 40A. Accordingly, the Board’s Decision is annulled.

GSTVS seeks a judgment ordering the granting of the special permit. I decline to do so because there are still a number of inquiries in the special permitting process that the Board must make before a decision can be issued, such as whether the proposed use will have no adverse impacts on the neighborhood, what hours of operation should be specified, and what types and number of vehicles should be permitted. Exh. 1 at §§ 240-38.M, 240-216. There is not enough evidence in the record for me to answer these questions and make a decision on the issuance of the special permit at this time. Rather, it is appropriate for the Board to make these inquiries in the first instance. This case is remanded to the Board, with the direction to conduct public hearings on GSTVS’s special permit application consistent with this decision.


For the foregoing reasons, I find that the Board’s 2014 Decision denying GSTVS’s special permit application was arbitrary and capricious and in excess of the Board’s authority. Judgment shall enter annulling the 2014 Decision of the Board and remanding this matter to the Board with instructions to conduct further public hearings on the special permit application and render a new decision on the merits consistent with this decision.

Judgment accordingly.