11 GOULD STREET, LLC, v. ROBERT SALTZMAN, WILLIAM SULLIVAN, R. MICHAEL DUFOUR, TOBIN SHULMAN, AND NATHANIEL CRAMER, as they are MEMBERS of the TOWN OF STONEHAM BOARD OF APPEALS.

Plaintiff 11 Gould Street, LLC (Plaintiff) initiated this action on May 14, 2015, pursuant to G. L. c. 40A, § 17, challenging the decision (Decision) of the Town of Stoneham Board of Appeals (Board) upholding a cease and desist order issued by the Town’s Building Inspector. The Building Inspector determined Plaintiff was conducting a towing operation at 11 Gould Street in Stoneham (Property), and that such use is not permitted as-of-right in a Commercial I Zoning District, nor is it permitted under either site plan approvals or a special permit previously granted. Plaintiff contends the current use of the Property is within the scope of the Town of Stoneham’s Zoning Bylaws (Bylaws), and argues that no towing currently takes place at the Property.

The Board members moved for summary judgment on February 17, 2016. Following briefing, a hearing was held on April 7, 2016, at which all parties were heard. Upon review of the record and consideration of counsel’s presentations at the hearing, the court determines that the Board’s Decision must be affirmed, as it was within its authority.

Summary Judgment Standard

“Rule 56(c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (citations omitted). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles it to judgment as a matter of law. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 711 (1991). Evidence submitted is viewed in the light most favorable to the non-moving party. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

The summary judgment record includes the parties’ briefs and submissions, together with sixteen exhibits labeled A through P. Exhibits A– M, and P are affidavits, to which exhibits are also attached. [Note 1] For purposes of summary judgment, the following material facts are undisputed:

Facts

1. Plaintiff 11 Gould Street, LLC is the owner of the Property, having acquired title to it pursuant to a foreclosure deed, dated October 22, 2009, recorded with the Southern Middlesex Registry of Deeds in Book 53712, at Page 223.

2. The Property consists of approximately 21,780 square feet of land, and is improved by a structure consisting of approximately 6,900 square feet. It is located in a “Commercial I” zoning district under the Bylaws.

1999 Site Plan Approval, 2004 and 2010 Amendments, and Special Permit

3. On July 27, 1999, the Board of Selectmen (Selectmen) granted Site Plan approval to Stoneham Motor Company, Inc., the then-owner of the Property, to “remove the existing building and garage and construct a one-story commercial building with mixed office use and industrial park use.” A number of stipulations were incorporated into the site plan decision, including a stipulation that “[n]o automobile repair or auto body repair of any type shall take place at the [Property]” (1999 Site Plan Approval). [Note 2]

4. On July 27, 2004, the Selectmen approved an application [Note 3] to amend the 1999 Site Plan Approval by “removing the existing building and garage and constructing a partial two-story commercial building with mixed office use and industrial park use on [the Property].” (Despite the 1999 Site Plan Approval, the original building and garage had not been removed.) The amendment to the Site Plan was made subject to all departmental approvals and stipulations contained within the 1999 Site Plan Approval, with the exception of the building height limitation (2004 Amended Site Plan Approval) (italics added).

5. On April 20, 2010, the Selectmen voted to approve Plaintiff’s application to amend the 2004 Amended Site Plan Approval, “by adding contractor’s storage to the allowed uses” on the Property (2010 Amended Site Plan Approval).

6. On June 10, 2010, the Stoneham Planning Board (Planning Board) granted Plaintiff’s application for a special permit, pursuant to Bylaws § 4.8.3.1, allowing “a contractor’s storage use in the existing building and yard area at 9-11-13 Gould Street (n/k/a/ 11 Gould Street), Stoneham, Massachusetts” (2010 Special Permit). The 2010 Special Permit was granted subject to six conditions, one of which prescribed: “hours of non-emergency operation [are] to be between 7:00 A.M. and 5:30 P.M., Monday through Saturday. No salvage or recycling activities are allowed.”

Enforcement Order

7. Paula DiBartolomeo, Paul DiBartolomeo, Amy O’Brien and Kate Arria, residents in the area of the Property, forwarded written complaints to the Building Department regarding a business operating on the Property, D & C Towing & Recovery, Inc. (D & C Towing), alleging that towing to and from the Property was having a detrimental effect on their lives. [Note 4]

8. In response, on November 12, 2014, Cheryl Noble, the Inspector of Buildings (Building Inspector) sent a cease and desist enforcement letter to Plaintiff (Enforcement Order), stating, among other things, that Plaintiff was “in violation of the Special Permit and Site Plan Approvals” by running a towing company on the Property. She further stated that the towing company constituted “[a]utomotive repair services, which in accordance with the [Bylaws] must be a minimum of 300 feet from any residential district. This location does not meet this requirement, therefore a Special Permit and Site Plan Approval could not be granted.”

9. Plaintiff’s counsel responded to the Enforcement Order from the Building Inspector in writing on November 19, 2014, stating, in part:

“[f]irst, you aver that my client is running a towing company. You obviously came to this unjustified conclusion without any form of investigation or confirmation of the type and style of business being operated from the subject premises. The truth is that there is a vehicle transport business, in the process of which from time to time a damaged vehicle may be brought to the premises and kept inside a fully enclosed garage for a period of one to two days during which time no repair work is performed. For you to attempt to characterize this as a ‘towing company’ within the common meaning of the terms is ludicrous, which fact you could have determined with about ten minutes of investigation” (italics added).

10. On December 23, 2014, the Building Inspector responded in writing:

“[a]s you may be aware, the [Bylaws provide], as most zoning bylaws and ordinances provide in some manner, that ‘[a]ny use not specifically listed or otherwise permitted in a district herein established shall be prohibited.’ (Section 4.1.2) The [Property] has zoning approval by means of a special permit and site plan for office, industrial and construction yard uses. In my opinion as building inspector, none of these uses allow for towing as a use, or for that matter a ‘vehicle transport business’ which you alleged to be a different use than towing. As such, if as you contend, this new use of the [Property] is not ‘automobile repair,’ such use, regardless of what [it is] called, is prohibited since such use is not specifically or otherwise provided for in Commercial I District. My determination that the use fell into the category of ‘automobile repair services’ as set out in Section 4.8.3.4 was (and is) a good faith interpretation of the Zoning Bylaws. (See Section 2.1.5 of the Zoning Bylaws – ‘automobile repair’ and Section 2.1.31 – ‘garage, public’).”

11. On January 22, 2015, Kevin Coucelos of D & C Towing contacted Mary Zatta, the office manager of the Stoneham Police Department, by means of a contact form on the Town of Stoneham website, writing:

“This is Kevin Coucelos from D & C Towing and Recovery out of Stoneham, MA. I know every city is always looking out for a reliable tow company . . . . We are located at 11 Gould Street in Stoneham . . . . We are open 24 hours, 365 days, as well.”

12. On February 26, 2015, and March 26, 2015, the Board held a hearing on Plaintiff’s appeal of the Building Inspector’s Enforcement Order.

13. On March 26, 2015, the second day of the hearing, Kevin Coucelos (Coucelos), a co-owner of D & C Towing and its primary operator, appeared and explained to the Board that D & C Towing trucks and supporting vehicles make “numerous trips” to and from the Property.

a. When asked how many cars he towed to the Property, Coucelos stated that, from January 2015, to the date of the hearing, he had towed “zero cars” to the Property, but also stated it would be his “intention” to bring cars there in the future.

14. In a decision issued April 29, 2015, the Board upheld the Enforcement Order because Plaintiff’s “‘use is not specifically or otherwise provided for in a Commercial I District’ and that [Plaintiff’s] request for relief must be denied” (Decision).

15. Plaintiff appealed the Decision on May 19, 2015.

Use of the Property

16. In a letter dated December 21, 2015, to Police Chief James T. McIntyre of the Stoneham Police Department, Coucelos and Stephen DeFraitas, co-owners of D & C Towing, wrote, in relevant part: “[p]lease accept this letter as formal notice that D & C Towing of Stoneham, MA wishes to be considered for acceptance as a Towing Contractor for the Town of Stoneham.”

17. D & C Towing is a twenty-four hour, seven days-a-week towing operation, with locations in Stoneham and Woburn. [Note 5]

18. A sign attached to a utility pole at a housing development located at Spring Court Extension in Woburn states: “TOW AWAY ZONE ILLEGALLY PARKED AND UNAUTHORIZED VEHICLES WILL BE TOWED AT VEHICLE OWNERS[’] EXPENSE 24 HRS. A DAY 7 DAYS A WK. G. L. CHAPTER 25, SECTION 10 D & C TOWING AND RECOVERY 11 GOULD STREET STONEHAM, MA 02180.”

Relevant Bylaw Provisions

19. Bylaws Section 2.0 (Definitions) defines several terms and words for purposes of the Bylaws. Section 2.1.5 defines “Automobile repair, sales, filing station, storage” as “[s]ee Filling Station, Garage, Private, Garage[,] Public and Gasoline Station.”

20. Bylaws Section 2.1.30 defines “Garage, Private” as “[c]overed space for the housing of motor vehicles, but not for the rental of more than two (2) stalls or for commercial repair or commercial storage.”

21. Bylaws Section 2.1.31 defines “Garage, Public” as “[a]ny garage other than a private garage, available to the public, operated for gain, and which is used for storage, repair, rental, greasing, washing, servicing, adjusting or equipping of automobiles or other motor vehicles, or supplying of gasoline or oil to motor vehicles.”

22. Bylaws Section 2.1.75 defines “Storage” as “[t]he deposit and/or care of materials in a warehouse or otherwise for safekeeping and/or ultimate distribution.” “Contractor’s storage” is not specifically defined in the Bylaws.

23. Bylaws Section 4.1.2 (Use Regulations) states “[a]ny use not specifically listed or otherwise permitted in a district herein established shall be deemed prohibited.”

24. Under Bylaws Section 4.8.3, the following uses, among others, are permitted in a Commercial I zoning district by “Special Permit Granted by the Planning Board and Site Plan Approval by the Board of Selectmen.”

a. “Utility buildings, contractor’s storage warehouses and buildings, and wholesale distribution plants.” (Bylaws Section 4.8.3.1)

b. “Automobile repair services” in a Commercial I zoning district, provided that:

(a) All service is performed within an enclosed structure.

(b) Such building shall be located no less than three hundred (300) feet from properties used or zoned for residential purposes, and not less than six hundred (600) feet from a school.

(c) Such building shall be set back at least fifty (50) feet from the street right-of- way.

(d) No motor vehicles in an inoperative condition are to remain on such site for more than a two (2) week period unless enclosed in a building or fenced or screened from abutting properties and streets.

(e) Screening in accord with Section 6.5 shall be provided and maintained along all adjacent property boundaries.

(Bylaws Section 4.8.3.4)

I. Discussion

In an action brought pursuant to G. L. c. 40A, § 17, challenging the decision of a zoning board of appeals, the “court shall hear all 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 the board . . . or make such other decree as justice and equity may require.” This review is described as “a ‘peculiar’ combination of de novo and deferential analyses.” Wendy's Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381 (2009), quoting Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 558 (1954). The court is obligated to review the action de novo; that is, without giving weight to the facts found by the board but rather assessing evidence presented by the parties. Shirley Wayside Ltd. P’ship v. Bd. of Appeals of Shirley, 461 Mass. 469 , 474 (2012); see Wendy's, 454 Mass. at 381 (no evidentiary weight given to board's actual findings). The court may overturn the board's decision only if the decision is “based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); Shirley Wayside Ltd. P’ship, 461 Mass. at 474–475; Wendy's, 454 Mass. at 381–382; Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999). If the court determines the facts support any rational basis to affirm the municipal decision, the decision must stand. Gulf Oil Corp. v. Bd. of Appeals of Framingham, 355 Mass. 275 (1969); Britton, 59 Mass. App. Ct. at 75.

In the context of this (and other) summary judgment proceedings, the material facts are established by the record and the court has not engaged in any fact-finding of its own. As an initial matter, this court finds that the record contains the material facts needed to rule on this motion. While there are facts disputed between the parties, those facts are not material to the court’s analysis which is essentially an interpretation of the Bylaws.

II. Prior Zoning Relief

This appeal requires a review of the site plan approval granted to Plaintiff’s predecessor in 1999 and the site plan’s two amendments in 2004 and 2010, as well as a 2010 special permit approved by the Planning Board. Collectively, this prior zoning relief formed the basis for the Building Inspector’s Enforcement Order affirmed by the Board, which found that the towing use at the Property was not allowed either as of-right in a Commercial I zoning district, nor was it allowed under the special permit or site plan approvals.

The 1999 Site Plan Approval allowed a “one-story commercial building with mixed office use and industrial park use,” provided “[n]o automobile repair or auto body repair of any type shall take place at the above referenced site.” The 2010 Site Plan Amendment allowed for “contractor’s storage” at the Property and further ordered that hours of “non-emergency operation” extended from 7:00 AM to 5:30 AM Monday through Saturday. A little less than two months after the 2010 Site Plan Amendment issued, the 2010 Special Permit was granted also allowing “contractor’s storage use,” subject to six conditions, one of which incorporated the Site Plan Approval hours of operation. It also provided: “No salvage or recycling activities are allowed.”

III. Building Inspector and Board Decisions

The Property is located in a Commercial I zoning district. A number of uses are allowed in the district only with site plan approval from the Board of Selectmen. Other uses are allowed only with a special permit issued by the Planning Board as well as site plan approval. “Contractor’s storage” and “automotive repair services” are two permitted uses requiring both special permit and site plan approvals (and automotive repair services have additional conditions imposed under Bylaws Section 4.8.3.4). Finally, all uses not specifically listed or otherwise permitted in a specific district are deemed prohibited.

The Building Inspector determined that Plaintiff’s use constituted ‘towing,’ which is not defined or mentioned in the Bylaws, and that such use fell under “automobile repair services” as defined in Bylaws Section 2.1.5 and allowed in a Commercial I zoning district pursuant to Bylaws Section 4.8.3.4, if both site plan approval and a special permit are in place. The definition of “automobile repair services” set out in Bylaws Section 2.1.5 references, among other uses, a public garage. Because the definition of a public garage includes the “storage” of “automobiles or other motor vehicles,” the Building Inspector determined that this category applied to Plaintiff’s use of the Property. No special permit or site plan approval has been issued allowing such use on the Property. The original 1999 Site Plan Approval prohibited “automobile repair or auto body repair of any type shall take place at the [Property]” Accordingly, the Building Inspector issued the Enforcement Order. The Board agreed with the Building Inspector’s determination that Plaintiff’s use came within the definition of “automotive repair services” and was not a permitted use.

Plaintiff disagrees towing is taking place at the Property, and instead argues this is an unresolved issue of material fact rendering summary judgment inappropriate at this stage. Plaintiff claims its use constitutes a “vehicle transport business” as opposed to towing or automobile repair services, that there is no tow yard onsite, and that vehicles are only towed or transported to the Property in rare, emergency situations (if, for example, Plaintiff was unable to bring a vehicle to its other locations or if a disabled vehicle was an expensive car it felt uncomfortable leaving on the street off-site). Plaintiff also appears to assert in the alternative that its use falls under “contractor’s storage,” as provided by Section 4.8.3.1, and is therefore allowed under the 2010 Special Permit and 2010 Site Plan Amendment.

Plaintiff does not dispute that tow trucks, both standard and flatbed, drive to and from the Property at various times. However, Plaintiff argues almost all of its business is conducted “off- site,” and that the tenant, although named “D & C Towing,” uses the Property predominantly as an office headquarters. While tow trucks may park and come and go from the Property, Plaintiff contends there is no “tow yard” on the Property and that disabled vehicles are only towed back to the Property in “emergency” situations. Plaintiff maintains the trucks themselves only remain at the Property for one to two hours, at most.

IV. Plaintiff’s Use of the Property is Not Specifically Permitted in a Commercial I Zoning District

Plaintiff’s challenge to the Board’s determination stems from its arguments that its use of the Property does not constitute “automobile repair services” or towing, per se, but rather contractor’s storage, and that an explicit categorization of its current use of the Property remains, at least for purposes of summary judgment, factually in dispute. It is not necessary, however, for this court to determine whether the Board erred in upholding the Building Inspector’s categorization of Plaintiff’s use as “automobile repair.” Even when a zoning board cites no particularized reasons or any specific evidence for its denial, its action will be upheld, under an appeal pursuant to G.L. c. 40A, § 17, if a rational basis for the denial exists which is supported by the record. Davis v. Zoning Bd. of Canton, 52 Mass. App. Ct. 349 , 356 (2001). So long as “any reason on which the board can fairly be said to have relied has a basis in the [facts] and is within the standards of the zoning by-law and the G. L. c. 40A, the board's action must be sustained regardless of other reasons which the board may have advanced.” Davis, 52 Mass. App. Ct. at 356. S. Volpe & Co. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). Such reasons are present here.

The Board determined that Plaintiff used the Property for “towing purposes,” and that such use was not “an otherwise permitted use at the premises.” The Board further found that “towing has occurred [at the Property] and will occur going forward, including bringing towed vehicles back to the [Property].” The Board reviewed the Property’s special permit and site plan approvals and concluded “there is no special permit or site plan currently in effect which permits [this use].” Because towing is not specifically listed as an allowed use in the Commercial I zoning district, nor is it permitted under any extant zoning approvals, it is not a permitted use at the Property.

Based on the record now before this court, the Board’s determination cannot be described as legally untenable, or unreasonable, whimsical, capricious or arbitrary. Plaintiff does not dispute that an operator of D & C Towing admitted that tow trucks, both flatbed and standard trucks, come and go from the Property, the trucks make numerous trips, and tow disabled vehicles to the Property on occasion.

The court further finds that it is not legally untenable or unreasonable, whimsical, capricious or arbitrary for the Board to determine that Plaintiff’s use does not fall under “contractor’s storage,” although not specifically addressed in its Decision. A reasonable distinction can be drawn between towing uses and storage uses, such as contractor’s storage. The Board notes that nothing in its Decision addresses “the issue of the storage of a tow truck or other such vehicles at the [Property]. Nothing herein shall be deemed to prevent a tow truck(s) from entering for overnight storage (parking) at, for instance 5:30 p.m., and going out in the morning at, for instance, 7:00 a.m. Such issues and matters are, of course, within the jurisdiction of the Building Inspector.” Plaintiff therefore is free to continue some type of storage of its vehicles in conjunction with the “contractor’s storage warehouse and buildings” use allowed under the special permit and site plan approvals. If towing is Plaintiff’s desired use of the Property, it may apply for appropriate relief under the Bylaws.

For the reasons discussed above, Defendants’ motion for summary judgment is ALLOWED.

Judgment to issue accordingly.