MARC LIEBMAN v. WILLIAM MORIARTY, WILLIAM BARLOW, ALAN LIPKIND, and DAVID TUBRIDY as members of the Marblehead Zoning Board of Appeals, and MICHAEL PIVACEK.

Introduction

The plaintiff in this G.L. c. 40A, § 17 appeal, Marc Liebman, operates a contracting business out of his home at 7 Orchard Circle in Marblehead's Single Residence (S-R) zoning district, in which the zoning bylaw (the "Bylaw") prohibits most conmercial activities. Mr. Liebman and his crew nonetheless regularly park numerous conunercial vehicles at his property, gather for meetings outside, and effectively use his yard as a contractors' storage yard. These activities are disruptive to the entire neighborhood and particularly disruptive to Mr. Liebman's next door neighbor, defendant Michael Pivacek.

Mr. Pivacek requested the town's building commissioner to take zoning enforcement action. When the building commissioner denied that request, Mr. Pivacek appealed to the Marblehead Zoning Board of Appeals ("the Board"), which found that these activities violated the Bylaw's use regulations and directed Mr. Liebman to cease and desist.

Mr. Liebman has appealed the Board's decision to this court, contending that this use of his property is lawful and that Mr. Pivacek lacked standing to appeal the building commissioner's denial of enforcement action to the Board. The Board disagrees. [Note 1]

The case was tried before me, jury-waived. Based on the testimony and exhibits admitted at trial, and my assessment of the credibility, weight, and appropriate inferences to be drawn from that evidence, I find and rule as follows.

Facts

These are the facts as I find them after trial.

The Relevant Provisions of Marblehead's Zoning Bylaw

The Liebmans' property is located in Marblehead's Single Residence (S-R) zoning district.

The principal uses [Note 2] allowed as a matter of right in the district are: one-family dwellings, [Note 3] places of worship, public schools, private schools, open spaces, government buildings, public utilities, and hospitals. See Bylaw, Art. IV § 200-10; Bylaw, Table 1 ("Land Use Regulations"); Bylaw, Art. IV§ 200-ll(A). Converted dwellings, lodges or clubs, private nursing homes/assisted living, philanthropic institutions, and wireless communication facilities may be allowed by special permit, and semi-detached dwellings and two-family dwellings may be allowed by incentive zoning permit. See Bylaw, Art. IV § 200-10; Bylaw, Table 1 ("Land Use Regulations"); Bylaw, Art. IV § 200-11(A). No other principal uses are allowed. See Bylaw, Art. IV § 200-10 ("In each zoning district, land and buildings may be used as a principal use only as set forth in Table 1, Land Use Regulations."); Bylaw, Art. IV§ 200-1 l(B)(l) ("No land or building shall be used, in whole or in part, for any use not described in [Bylaw, Art. IV§ 200-1 l(A)], Explanation of allowed uses."). Moreover, the Bylaw expressly prohibits many retail, conunercial, and industrial-type uses including, of particular relevance to this case, parking facilities [Note 4] and storage yards. [Note 5] See Bylaw, Art. IV§ 200-10; Bylaw, Table 1 ("Land Use Regulations"); Bylaw, Art. IV§ 200-1 l(A).

"Accessory uses or buildings are allowed as a matter of right provided they are located either on the same lot as the principal use or on an adjacent lot under the same ownership as the lot where the principal use is located." Bylaw, Art. IV§ 200-13(A). An accessory use is defined as a "use which is clearly subordinate and incidental to the principal building or use," Bylaw, Art. II § 200-7, and, importantly, "shall not alter the character of the premises where the principal and accessory uses are located." Bylaw, Art. IV § 200-13 (emphasis added). One such accessory use identified in the Bylaw is "home occupation," defined as follows:

The use of a room or rooms in a dwelling or accessory building for a resident on the premises as an office, studio, or by the conduct of a service trade or an agency, or any other customary home occupation, shall be a permissible accessory use, provided:

(a) Not more than two persons other than residents of the premises are regularly employed in such use.

(b) The residential appearance and character of the premises are preserved.

(c) There is no display of goods or advertising visible from the outside except for an unlighted sign not over three square feet in area, and the top of which is not over six feet high.

(d) No trading or sale of merchandise is regularly conducted except for products made on the premises or of parts of other items customarily maintained in connection with and incidental to the accessory use.

Bylaw, Art. IV§ 200-13(B)(l). The other accessory uses set forth in the bylaw, none of which are applicable here, are those "necessary in connection with scientific research or scientific development or related production" (which may be allowed by special permit) and the taking of boarders or the leasing ofrooms in a dwelling unit by a resident owner. See Bylaw, Art. IV§ 200-13(B)(2) & § 200-13 (C).

In all zoning districts, there must be "adequate off-street parking and loading facilities." Bylaw, Art. VI§ 200-17. For residential uses, each dwelling unit must have two automobile parking spaces. See Bylaw, Art. VI § 200-1?(A). "The garage or parking area shall be located on the same lot as the building (whether for residential or nonresidential use) or on an adjoining lot under the same ownership." Bylaw, Art. IV§ 200-20.

The Orchard Orcle Neighborhood

Orchard Circle is a U-shaped private way in the S-R zoning district with ten residential lots along the outer perimeter, two residential lots in the center, and a vacant lot (the "Open Space Parcel") in the center along the inner arc. See Exhibit 1, attached. [Note 6] Most of those properties - including Mr. Pivacek's and Ms. Covelluzzi's home at 5 Orchard Circle, the Liebmans' home at 7 Orchard Circle, and the Open Space Parcel - are part of the Orchard Circle subdivision, which the town's planning board approved in 1989 and for which the Board allowed special permits in 1990.

In the past, Orchard Circle was a quiet, peaceful, residential neighborhood with little vehicular traffic. Many families with young children reside in the area. People run, walk their dogs, and bike on the street, and children often play there. As discussed more fully below, the character of the neighborhood changed materially when the Liebmans moved to Orchard Circle and began using their residence for Mr. Liebman's contracting business' activities.

The Liebman Property

Plaintiff Marc Liebman and his wife Ashlee live in the single-family home located at 7 Orchard Circle, which they purchased in May 2013. They purchased the Open Space Parcel across the street from their house in September 2013.

Mr. Liebman is a self-employed licensed contractor and runs his contracting business, Crown Property Management & Construction LLC, out of his home. He also has a facility elsewhere. [Note 7] His business' office is in his house and his bookkeeper works there for a half-day each week. Mr. Liebman also has two full-time employees and works with various subcontractors and independent contractors. He and his crew (his employees and others working with them) regularly work on and travel to and from his house lot throughout each work day. [Note 8]

Mr. Liebman claims that his business' activities on his property are minimal. I find otherwise. I credit his neighbors' testimony and find that the commercial activities on Mr. Liebman's property- particularly the number of employee cars and commercial vehicles traveling back and forth each day, and the construction materials stored in his yard - have been extensive, disruptive, and materially changed the formerly residential appearance and character of the Liebmans' property.

Mr. Liebman regularly parks and stores commercial vehicles associated with his business, many of which are labeled with his company's logo, at his house lot and across the street on the Open Space Parcel. The Liebmans have a one-car garage attached to their house and three driveways - two by their house that can accommodate six vehicles, and the other across the street on the Open Space Parcel. Mr. Liebman parks his business' Ford box truck, Ford F-350, and enclosed trailer on one of his driveways. He and his wife park their personal vehicles, a pickup truck and SUV, there as well. For half of the year, he stores a classic pickup truck labeled with his company logo in his garage. He uses the driveway on the Open Space Parcel to park various passenger and commercial vehicles (sometimes as many as six), many of which are marked with his company logo. On occasion, he has parked commercial vehicles on his yard.

Many others associated with Mr. Liebmans' business also regularly drive to and from the Liebmans' property. Every work day, an employee drives to the Liebman house in the morning, parks his van on the Open Space Parcel driveway, drives away in one of Mr. Liebman's commercial vehicles with another employee who meets him there, and then returns at the end of the day. Other contractors working with Mr. Liebman park their commercial vehicles on the Liebmans' property when they meet him there. In addition, Mr. Liebman's bookkeeper parks on one of the Liebmans' driveways, in front of their house, or on the street.

Mr. Liebman, his crew, and others associated with his business regularly drive to and from his property sometimes multiple times a day, usually in commercial vehicles and often in vehicles with his company logo. [Note 9] On many days, various materials - lumber, ladders, staging, planking, walkways, and other building materials and equipment - are delivered to or hauled away from the property. [Note 10] Every workday at 8:00 a.m., his crew congregates in the street by his house, often loudly. [Note 11] They often leave their vehicles running as they converse about the work day ahead and transfer materials between their vehicles before they drive off together. [Note 12] They stop by the property between jobs, and often for breaks. They return around 4:00 p.m., empty the materials and tools from their vehicles, and either park them on the Liebmans' property or drive them away. [Note 13]

In between projects when he has downtime, Mr. Liebman, often with assistance from his crew, works on his Orchard Circle house - a construction project that has been ongoing since he and wife bought the house in 2013, and is seemingly without end. He occasionally has other local contractors work there with him as well. Much of this work is to the building exterior. Because he typically works on his house only when he has the money and free time from his other jobs, his progress has been sporadic and slow.

The Liebmans' work on their house has included extensive landscaping alterations to both their yard and the Open Space Parcel. In October 2013, they paved a driveway over the 20'-wide utility easement area on the westerly side of the Open Space Parcel, planted a new lawn and three apples trees on its easterly side, had an arborist remove most of the other trees and shrubs, and removed trash, an abandoned boat and trailer, and other debris from the area. From July 2013 to July 2014, they had an extensive landscaping project completed in the yard around their house that involved leveling the property, constructing a retaining wall, and replacing drain lines. Their contractors used large heavy-duty dump trucks, excavators, Bobcats, and trailers throughout that year-long landscaping project.

Mr. Liebman is currently in the process of re-siding his house and replacing the window trim. According to Mr. Liebman, in the ordinary course, such a project should take only three months to complete. However, the work has been ongoing for over one­and-one-half years and has no anticipated end date. Like his many other projects at his house, he works on this one intermittently and only when he has the time and money.

Mr. Liebman has consistently used his yard to store various construction materials and debris since he and his wife purchased the home. [Note 14] On a regular basis, different materials are delivered to and picked up from their property. Some are piled in his yard and remain there for extended periods of time, sometimes for so long that weeds and tall grass grow through the piles. For a lengthy period of time, there were multiple trash barrels in his yard that were used to hold construction debris. The debris piled up until the barrels were full and dump trucks hauled them away.

Some of the materials stored in the yard are from Mr. Liebman's construction activities at his own house. He has been storing piles of railings from an old demolished porch in his yard for years. For a long time, he stored piles of old concrete drain pipes removed during his landscaping project in the yard. At the time of the trial, he was storing piles of window trim, siding, corner boards, and fascia boards for his ongoing re­siding project that had been in his yard since that project began. He regularly stores various other construction-related items - ladders, old doors, windows, tarps, signs, gutters, old appliances, and other materials - in the yard as well. No arms-length customers having work done on their houses, particularly when they are living there while the work is ongoing, would tolerate such long-term storage. Nor, for that matter, would their neighbors.

Because of the abundance of construction materials, debris, and commercial vehicles at the Liebmans', their property looks like contractor's yard and parking lot and effectively is used as such. The constant activity and noise from their property is disruptive and annoying to the neighbors. Some neighbors no longer allow their children to play in the area because the traffic is so heavy. The diesel fumes from the vehicles are sometimes so strong that some neighbors, including Mr. Pivacek, do not open their windows. Simply put, the Liebmans' property no longer looks like a residence and is out of character with the neighborhood.

The Pivacek/Covelluzzi Property

The commercial activities on the Liebmans' property have been particularly disruptive to their next door neighbors, Mr. Pivacek and Gail Covelluzzi, who have resided in the single-family home at 5 Orchard Circle since 2008. Mr. Pivacek and Ms. Covelluzzi are unmarried, but have been in a relationship together for over twelve years. Ms. Covelluzzi is the owner-of-record of their home, which she acquired from a bank in March 2008. At that time, time was of the essence to purchase the bank-owned property, Mr. Pivacek owned another house, and Ms. Covelluzzi qualified for a mortgage on her own. To help expedite the sale, only Ms. Covelluzzi took title to the property. Mr. Pivacek is not on the deed and is not a signatory to the mortgage or the associated promissory note.

Mr. Pivacek and Ms. Covelluzzi do not have a written agreement regarding Mr. Pivacek's interest in or occupancy of the property. They have an understanding, however, that they are equal co-owners of their home and that they share responsibility for its expenses. They make decisions regarding their home together. Its electrical service is in both of their names. They each contributed half of the down payment towards its purchase price. They also split the mortgage payments, property taxes, utilities, repairs, maintenance and improvement costs, food, and other property expenses. Mr. Pivacek typically pays his share of those expenses in cash, making deposits into Ms. Covelluzzi's bank account for his half of the mortgage payments and paying the utility bills in person at the utility companies' offices. Neither he nor Ms. Covelluzzi keeps track of his financial contributions.

The Request for Zoning Enforcement and the Appeal to the Board

With the commercial activities at the Liebmans' property increasing, Mr. Pivacek and Ms. Covelluzzi decided to seek the town's intervention. Mr. Pivacek had multiple conversations with the town's building commissioner's office about the Liebmans' property and what could be done to address the situation. [Note 15] Mr. Pivacek kept Ms. Covelluzzi informed of what he discussed with the building commissioner's office, and they decided to request zoning enforcement action.

On January 15, 2014, Mr. Pivacek filed a request for zoning enforcement with the building commissioner's office, contending that "the number of commercial vehicles parked or stored at the residential zoned address above [7 Orchard Circle, Map 26 Parcel 3D [Note 16] ] is greater than allowed." Mr. Pivacek signed the request, and listed himself as the complainant and 5 Orchard Circle as his address. Ms. Covelluzzi is not listed as a complainant on the request and she did not sign it. However, she considered Mr. Pivacek to be acting for the two of them when he made the request.

In response to Mr. Pivacek's complaints, Dan Williams, a building inspector from the town's building commissioner's office, visited the Liebmans' property and observed multiple commercial vehicles there. Mr. Williams thereafter sent Mr. Liebman a letter dated January 22, 2014 giving notice of Mr. Pivacek's complaint and stating that, "it is reasonable to have one lettered pickup [i.e., with the business logo on it] at the residence. Any more indicates more than two employees, and also affects the residential appearance of the single residence district the house is in."

The building commissioner's office subsequently received a letter from Mr. Liebman's attorney challenging Mr. Williams' January 22 letter. Mr. Williams then withdrew his January 22 letter and, by letter dated February 19, 2014, informed Mr. Pivacek that the building commissioner's office would not be taking enforcement action. Mr. Pivacek and Ms. Covelluzzi then appealed that refusal to the Board. The appeal form is dated March 21, 2014, and identifies Mr. Pivacek as the sole applicant, listing his address as 5 Orchard Circle. [Note 17] Ms. Covelluzzi did not sign the appeal form. Mr. Pivacek and Ms. Covelluzzi then retained an attorney who represented them both at the appeal proceedings.

By decision filed with the town clerk on June 12, 2014, the Board overturned and vacated the building commissioner's decision, finding, inter alia, that the use of the property "to store materials and park multiple trucks and equipment exceeds the use allowed in a single family district" and that "[t]he alterations, changes, and de facto use of the 3852 square foot horseshoe-shaped locus constitute a violation of the provisions of the 1989 Planning Board Site Plan Site Plan [sic] decision and the 1990 Zoning Board of Appeals decision, which the Commissioner is obliged to uphold." [Note 18] The Board then directed the building commissioner:

[t]o issue a Notice of Violation to the land owners that they have violated the provisions contained in the 1989 and 1990 Planning Board and Zoning Board of Appeals Special Permits and the use restrictions in a Single Family District; to forthwith restore the horseshoe shaped parcel by removing all paving, to cease parking and to maintain the area as an "undisturbed area"; and to cease and desist from further violation of the use restrictions in a Single Family District.

This case is Mr. Liebman's G.L. c. 40A, § 17 appeal of the Board's decision. He contends that the Board's decision should be vacated because, in his view, (1) Mr. Pivacek lacked standing to appeal the building commissioner's decision to the Board, and, again in his view, (2) his property is being used consistently with the Bylaw's use regulations. The Board ruled otherwise. Based on the facts set forth above and the reasons below, I find and rule otherwise as well.

Further relevant facts are set forth the Discussion section below.

Discussion

Standing

The Zoning Act, G.L. c. 40A, grants "a right to request the officer charged with enforcing local zoning to enforce the by-law under G.L. c. 40A, § 7, [Note 19] and, if the requesting party is aggrieved by the inspector's decision, a right to seek administrative relief from the board under G.L. c. 40A, §§ 8 [Note 20] and 15, and, after exhausting administrative remedies, a right to obtain judicial review pursuant to G.L. c. 40A, § 17." Vokes v. Avery W. Lovell, Inc., 18 Mass. App. Ct. 471 , 482-483 (1984). One who requests zoning enforcement under G.L. c. 40A, § 7 "need not be aggrieved." Green v. Bd. of Appeals of Provincetown, 404 Mass. 571 , 573 (1989). However, "[t]o go beyond that stage, if the request for enforcement is rejected, a party must be aggrieved." Id. "Status as an 'aggrieved' person is a jurisdictional prerequisite both to seeking relief from a zoning board of appeals under G.L. c. 40A, § 8, and to maintaining an action for judicial review pursuant to G.L. c. 40A, § 17." [Note 21] 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 n.12 (2012).

A "person aggrieved" within meaning of the Zoning Act "is one who 'suffers some infringement of his legal rights.'" [Note 22] Id. at 700 (quoting Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996)). To qualify as a person aggrieved, one "must assert 'a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest."' Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 120 (2011) (quoting Harvard Sq. Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989)). More particularly, one must suffer an infringement of a "specific interest that the applicable zoning statute, ordinance, or bylaw at issue is intended to protect." Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 30 (2006). "[T]he term 'person aggrieved' should not be read narrowly." Marashlian, 421 Mass. at 721. However, "[a]ggrievement requires a showing of more than minimal or slightly appreciable harm." Kenner, 459 Mass. at 121. "The injury must be more than speculative," Marashlian, 421 Mass. at 721, and must be "special and different from the injury the action will cause the community at large." Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005).

Those who qualify as "parties in interest" under G.L. c. 40A, § 11 [Note 23] - including abutters, landowners directly across the street, and certain abutters to abutters - enjoy a rebuttable presumption that they are persons aggrieved. See Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 257-258 (2003); G.L. c. 40A, § 11. To rebut that presumption, one must offer "evidence 'warranting a finding contrary to the presumed fact."' 81 Spooner Rd, LLC, 461 Mass. at 700 (quoting Marinelli, 440 Mass. at 258). If the presumption is rebutted, the court must decide the issue of standing "on the basis of all the evidence." 81 Spooner Rd., LLC, 461 Mass. at 701. Standing must then be proved "by putting forth credible evidence to substantiate the allegations," [Note 24] Id.

Mr. Liebman contends that Mr. Pivacek, his next door neighbor, lacks a sufficient interest in his home at 5 Circle Avenue to qualify as a person aggrieved by the building commissioner's denial of enforcement action. I disagree, and find that Mr. Pivacek is aggrieved by the denial of his request for zoning enforcement and thus had standing to appeal that decision to the Board. [Note 25]

It is not necessary to have a record ownership interest in a property in order to qualify as a person aggrieved. See Quimby v. Zoning Bd. of Appeals of Arlington, 19 Mass. App. Ct. 1005 , 1006 (1985) ("There is no per se rule that a tenant or long-time resident can never have standing."). See also Carey v. Planning Bd. of Revere, 335 Mass. 740 , 743-744 (1957) (mortgagee of adjacent property with pecuniary interest potentially affected by determination was person aggrieved in subdivision control context). In Quimby, the Appeals Court determined that the trial court improperly allowed a motion to dismiss a G.L. c. 40A, § 17 appeal from the grant of a variance for the defendant's property on grounds that the plaintiff, who resided at but did not own a neighboring property, was not a person aggrieved. See id. at 1005-1006. Quoting the Connecticut Supreme Court, the Appeals Court reasoned:

"[I]t is not possible to extract a precise comprehensive principle which adequately defines the necessary interest which a nonowner must possess in order to have standing to [challenge a variance]. The decisions have not been based primarily on whether a particular applicant could properly be characterized as an optionee or a lessee, but, rather, on whether the applicant was in fact a real party in interest with respect to the subject property. Whether the applicant is in control of the property, whether [she] is in possession or has a present or future right to possession, whether the use applied for is consistent with the applicant's interest in the property, and the extent of the interest of other persons in the same property, are all relevant considerations in making that determination." Id. at 1006 (quoting Richards v. Planning & Zoning Comm'n of Wilton, 170 Conn. 318, 323 (1976)).

Mr. Pivacek is a long-time resident of 5 Orchard Circle with a significant equitable and pecuniary interest in his home. He has resided there with his partner, Ms. Covelluzzi, since 2008. Although only Ms. Covelluzzi is on the property's deed and mortgage, they have a shared understanding that they are equal co-owners of their home. They make decisions about their home together. Mr. Pivacek paid for half of the down payment towards the property's purchase price. Since purchasing the property, he and Ms. Covelluzzi have contributed equally to the household expenses, including the mortgage and utility payments, property taxes, maintenance and improvement costs, and their food. They have not reduced to writing Mr. Pivacek's rights in their home, however, he clearly has a significant interest in the property.

I thus find that Mr. Pivacek, as an abutting neighbor of the Liebmans, is entitled to a presumption of aggrievement. Mr. Liebman has not rebutted that presumption and, thus, Mr. Pivacek is a person aggrieved.

Moreover, in addition to his presumed aggrievement, Mr. Pivacek has affirmatively established that he is a person aggrieved by Mr. Liebman's contracting business' activities. Because those activities occur directly next door and across the street from Mr. Pivacek's home - right outside his windows - their effects on him are particularly pronounced. Mr. Liebmans' commercial activities are loud, disruptive, and unsightly (not to mention, as further described below, unlawful). In the early morning and again at the end of the work day, there is a nearly constant flow of vehicles traveling to and from the Liebmans' house. Put simply, the conunercial activities on the Liebmans' property are a nuisance, especially to Mr. Pivacek next door to them.

The Merits

In this G. L. c. 40A, § 17 appeal, as in all such proceedings, the reviewing court makes de novo factual findings based solely on the evidence admitted in court, and then, based on those facts, determines the legal validity of the municipal body's decision, with no evidentiary weight given to any findings by the Board. See Shirley Wayside Ltd. Partnership v. Bd. of Appeals of Shirley, 461 Mass. 469 , 474-475 (2012); Wendy's Old Fashioned Hamburgers of NY, Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381-382 (2009); Roberts v. Sw. Bell Mobile Sys., Inc., 429 Mass. 478 , 485-486 (1999).

The Board's decision '"cannot be disturbed unless it is based on a legally untenable ground' or is based on an 'unreasonable, whimsical, capricious or arbitrary' exercise of its judgment in applying land use regulation to the facts as found by the judge." Wendy's Old Fashioned Hamburgers of NY, Inc., 454 Mass. at 381-382 (quoting Roberts, 429 Mass. at 487). In determining whether the Board's decision was "based on a legally untenable ground," the court must determine whether it was decided "on a standard, criterion, or consideration not permitted by the applicable statutes or by­laws." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003) (internal quotations omitted). In determining whether the decision was "unreasonable, whimsical, capricious, or arbitrary," "the question for the court is whether, on the facts the judge has found, any rational board" could come to the same conclusion. See id. at 74.

Mr. Liebman contends that the Board's decision is legally untenable and unreasonable because, he claims, his property is being used consistently with the Bylaw's use regulations. [Note 26] I disagree. There is no question that many of the activities on the Liebmans' property are commercial in nature and thus, under the Bylaw, are prohibited as a principal use in the S-R district in which the Liebmans' property is located. The Liebmans' property may, however, have as an accessory use a "home occupation." Contrary to Mr. Liebmans' claims, however, the commercial activities on his property do not constitute a home occupation within the meaning of the Bylaw, are not allowed under any other use category, and are thus unlawful.

The Bylaw defines an accessory use as a "use which is clearly subordinate and incidental to the principal building or use." Bylaw, Art. II § 200-7. An accessory use "shall not alter the character of the premises where the principal and accessory uses are located." Bylaw, Art. IV§ 200-13(A). A home occupation- "[t]he use of a room or rooms in a dwelling or accessory building for a resident on the premises as an office, studio, or by the conduct of a service trade or an agency, or any other customary home occupation" - is a permissible accessory use, provided:

(a) Not more than two persons other than residents of the premises are regularly employed in such use.

(b) The residential appearance and character of the premises are preserved.

(c) There is no display of goods or advertising visible from the outside except for an unlighted sign not over three square feet in area, and the top of which is not over six feet high.

(d) No trading or sale of merchandise is regularly conducted except for products made on the premises or of parts of other items customarily maintained in connection with and incidental to the accessory use.

Bylaw, Art. IV § 200-13(B)(l). Mr. Liebmans' commercial activities at his home far surpass that which the Bylaw allows as a home occupation, and as an accessory use generally.

Most of Mr. Liebmans' business' activities at his residence occur outside, in the open, for the entire neighborhood to see, hear, and smell, and they continue for a significant part of the day, every work day. There are regularly numerous commercial vehicles, many of which display Mr. Liebmans' business logo, parked in his garage and three driveways. [Note 27] Sometimes such vehicles are also parked in his yard and on the street.

Early each work morning, Mr. Liebmans' crew meets outside his home and transfers materials and equipment between commercial vehicles, often noisily. [Note 28] They travel back and forth in their trucks and trailers at various times of the day, loading and unloading materials, equipment, and debris, leaving some in piles in the Liebmans' yard. Materials are often delivered to and picked up from the property, and piles of materials and debris have remained in the yard for years.

These activities have completely altered the residential appearance and character of the Liebmans' property and thus do not constitute a home occupation under the Bylaw. In addition, the activities are so extensive and so frequent that they are not incidental to another principal use and, therefore, are not an accessory use. In effect, the property is now used as a contractor's storage yard and parking lot - uses expressly prohibited in the S-R district. See Bylaw, Art. IV§ 200-10; Bylaw, Table 1 ("Land Use Regulations"); Bylaw, Art. IV § 200-1 l(A). Mr. Liebmans' commercial activities do not constitute any other use, principal or accessory, allowed in the S-R district and, therefore, are unlawful.

Mr. Liebman contends that all of the construction materials on his property are for his work on his house. The evidence is otherwise, but even if true, his storage of these materials in his yard for these extended periods of time are still unlawful. He and his crew have been working on his house in between projects for years. Their work on the property is, effectively, part of Mr. Liebman's contracting business. He has kept large piles of materials in his yard for so long that, regardless of where they will ultimately be used, he is in effect using his property as a contractor's yard. Furthermore, regardless of whether the materials are part of his business or the equivalent of a contractor's yard, the Bylaw prohibits the storage of nearly everything Mr. Liebman has been keeping in his yard - "salvage materials, waste products or other open-air storage of junk." Bylaw, Art. IV § 200-1 1(A)(6)(e).

Mr. Liebman's argument that the Bylaw does not restrict the parking of conunercial vehicles on residential property also lacks merit. The regular parking of multiple commercial vehicles on his property is part of his commercial activities there, which, as discussed, are not allowed.

Conclusion

For the foregoing reasons, the Board's decision is AFFIRMED, except as follows. The portion of the Board's decision directing the building commissioner to issue a notice of violation for violations of the 1989 and 1990 Planning Board and Board decisions and require the Liebmans to "restore the [Open Space Parcel] by removing all paving . . . and to maintain the area as an 'undisturbed area'" is VACATED and REVERSED. Mr. Liebmans' claims are DISMISSED, with prejudice. Judgment shall enter accordingly.

SO ORDERED.

exhibit 1