EDMUND CHAPUT and PEGGY CHAPUT v. CORNELIUS KANE, PATRICK FINN, and ANDREW CORSON as members of the Zoning Board of Appeals of the Town of Hull, and RAYMOND SARNO.

Introduction

The plaintiffs in this G.L. c. 40A, § 17 appeal, Edmund and Peggy Chaput, live next door to defendant Raymond Sarno, who operates two contracting businesses and a rental property acquisition and maintenance operation out of his home at 296 Newport Road in Hull's Single Family Residential District B. In this district, Hull's zoning bylaw specifically allows contractors to operate their businesses out of their homes as an accessory use, but limits this use to activities that do not alter the exterior appearance of the residence or give "other visible evidence of the conduct of such home occupation other than one announcement sign…" Zoning Bylaw, Art. III, §31-1(d). The bylaw further provides that no "material, equipment, or products" associated with the home occupation "be visible from the street." Id.

Mr. Sarno currently has two commercial vehicles with the names of his businesses on them, as well as a trailer on which he transports landscaping supplies and equipment, which he regularly parks in his driveway, his yard, or on the street. The Chaputs assert that this parking, Mr. Sarno's transfer of equipment and materials back and forth across his yard between the vehicles, the trailer, and/or his garage, and certain other exterior business-related activities that have occurred at his home [Note 1] are in violation of the zoning bylaw and thus should cease. They have no quarrel with his business activities inside the house.

The Chaputs requested zoning enforcement from the town's building commissioner, which he denied. They then filed a timely appeal to the Hull Zoning Board of Appeals which, after hearing, upheld the building commissioner's ruling. In the Board's view, Mr. Sarno's use of his property was not a violation under the Bylaw, as "Hull is unique by permitting contractor as an allowed home occupation." See Zoning Board of Appeals Decision at 5.

The Chaputs appealed the Board's decision to this Court pursuant to G. L. c. 40A, §17, and 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 Bylaw Provisions

Both the Chaputs' and Mr. Sarno's properties are in Hull's Single Family Residential District B. The Zoning Bylaw allows for accessory uses within that District that are:

. . . [C]ustomarily incidental to a permitted main use [Note 2] on the same premises, including the use of a room or rooms for customary home occupations conducted by resident occupants, and involv[e] no change in the customary external appearance of the premises or other visible evidence of the conduct of such home occupation other than one announcement sign as provided in Paragraph 70-2.a, and provided that

(a) such office or studio is open to clients by appointment only,

(b) no more than two (2) other persons are regularly employed on the premises in connection with such use

(c) material, equipment, or products shall not be visible from the street, and

(d) the sale of any articles is limited to those produced on the premises and related to the permitted home occupation. [Note 3] Said customary home occupations include, but are not limited to the following: Professional office or studio of a resident physician, dentist, attorney, architect, contractor, accountant, artist, engineer, real-estate or insurance broker, art dealer, interior decorator, appraiser, or member of another recognized profession.

Zoning Bylaw, Art. III, § 31-1 (d) (emphasis added).

On-street and off-street parking that is "located in accordance with other provisions [of the] zoning bylaw" is also an allowable accessory use. See Zoning Bylaw, Art. II, § 22-1. There are two such parking-related zoning provisions applicable in this residential district. The first is the prohibition on parking construction equipment and trucks over 10,000 lbs. gross vehicle weight ("GVW") unless a special permit to do so is granted by the town's Board of Selectmen. See Zoning Bylaw, § 52-6. [Note 4] The second is the zoning bylaw just noted (Zoning Bylaw, Art. III, § 31-1(d)) which, for on-street and off-street parking to be "in accordance with", requires that (1) the location of parking associated with the accessory use (here, Mr. Sarno's businesses) does not change "the customary external appearance of the premises or [give] other visible evidence of the conduct of such home occupation", and (2) "material, equipment, or products [associated with the business] shall not be visible from the street." Zoning Bylaw, Art. III, § 31-1(d). See also Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 477 (2012) (bylaw provisions to be read together as a contextual whole); Sullivan v. Chief Justice for Administration and Management of the Trial Court, 448 Mass. 15 , 27 (2006) (preference given to harmonious reading of statutes).

The town has one other regulation governing parking in residential districts which, because it addresses parking on public roads, is contained in its general bylaws, not the ones concerning zoning. This is because, as discussed more fully below, parking on public streets, while within the municipal power to regulate, is outside the scope of the zoning power. This general bylaw ("Town Bylaw") allows homeowners in residentially zoned areas to restrict on-street parking in front of their homes to just that homeowner and his or her guests. Town Bylaw, Ch. 155, § 155-20(A). [Note 5]

The Chaputs' Property and Mr. Sarno's Property

The Chaputs live in the single-family home at 12 Lynn Avenue, which they first occupied as tenants starting in 1996 and then purchased in 1998. Mr. Sarno purchased the property next door to the Chaputs, the single-family home at 296 Newport Road, in 2006 and has lived there ever since.

Mr. Sarno is a self-employed businessman and conducts his businesses from his Newport Road home. There are three such operations: (1) Ray Sarno Electrician, (2) Muzzi Drain Cleaning, and (3) a rental property acquisition and maintenance business which he co-owns with his girlfriend, Diane Ledwell. He has a home office inside his house where calls are taken, bills are sent out, payments are received, and supplies are ordered. [Note 6] Customers seldom, if ever, come to the house. Instead, they call-in their requests, and the electrical services and drain cleaning he provides then take place at their sites. When Mr. Chaput needs assistance with these activities he has a part-time employee whom he picks up at the beach (not, except rarely, at his house) and then drops off at the beach at the end of the day. The Chaputs have no objection to these inside activities. What they object to are the outdoor ones. These are the following.

Mr. Chaput parks his commercial vans, all of which have his business names on them, on the public street in front of his house and in his driveway. He parks the trailer which he uses to transport his lawn mowers to and from his rental properties in his driveway or on his front lawn. He keeps business-related equipment and supplies in his garage and in the vans themselves, and then transfers that equipment and supplies back and forth between the garage and the vans and between the vans themselves. From time to time he washes his vans either on the street or in his driveway and then hangs the wet rags to dry on the fence between his house and the Chaputs. On at least one occasion he has had supplies for his rental properties delivered to his driveway (a set of windows for one of his rental properties). On one occasion his employee broke apart a toilet from one of his rental properties on his front lawn so that it could be taken away. And, for a time, he stored a tire on the lawn as well.

The impacts on the neighborhood, and particularly the Chaputs next door, that are caused by these outdoor activities are two.

First, the regular presence of the commercial vehicles on the street and in the driveway, and the transfer of business-related materials between those vehicles and to and from the garage, cause Mr. Sarno's property to look more like a business operation than a home.

Second, one of Mr. Sarno's commercial vehicles has a back-up beeper that goes off and continues to sound whenever the vehicle is in reverse gear. This is not an "only once in a while" occurrence. In just the four months immediately prior to trial, Ms. Chaput heard the beeper go off over 85 times. Moreover, because Mr. Sarno often leaves for that day's jobs in the early morning hours and returns late, the shrill noise from the back-up beeper, piercing what are otherwise quiet times of day, is particularly disruptive.

The Request for Zoning Enforcement and the Appeal to the Board

The Chaputs first raised concerns regarding Mr. Sarno's activities in 2014 when he parked a box truck he then-owned (which he had registered with the Registry of Motor Vehicles as having a GVW of 9,000 lbs.) in the street during a snow storm, and Mrs. Chaput called the Hull Police Department to have him move it. Mr. Sarno did so, but subsequently brought it back. The Chaputs then complained again when they learned that, in fact, the truck was over the 10,000 lb. GVW weigh limit for commercial vehicles in residential districts (see Town Bylaw, Art V, § 52-6) and in July 2015, in response to this complaint, the building commissioner issued a cease and desist order pursuant to G.L. c. 40, § 21D. In compliance with that order, Mr. Sarno got rid of the truck.

In 2016, the Chaputs again complained to the town because Mr. Sarno was washing his vehicles in the road, resulting in soapy run off coming onto the Chaputs' property. In response to this complaint, the town installed a berm to re-direct the water away from the Chaputs' driveway.

On November 3, 2016 the Chaputs sent an email to the Chairman of the Board of Selectmen asking for zoning enforcement regarding Mr. Sarno's business activities at his home. In that email, the Chaputs alleged that Mr. Sarno was "running Sarno Electric, Muzzi Drain Cleaning, and his rental property business, out of his garage. The access to his garage is on Lynn Avenue." The Selectmen referred the request to the building commissioner, Peter Lombardo, who responded with a letter to the Chaputs. In that letter (his written response to the request for enforcement, see G. L. c. 40A, § 13), he stated that he had "visited the site, read the referenced material, and also referred to pertinent sections of Town regulations regarding this situation" and, in his opinion, "your neighbor's home base enterprise, as presently set up and observed, is allowed and complies with present regulations." He further stated that the Chaputs' "references to illegal parking on the public way – Lynn Ave – in a Residential Zone, is not a function of the Zoning bylaws of the Town of Hull."

The Chaputs appealed the building commissioner's decision to the Zoning Board of Appeals, which denied their appeal and affirmed the building commissioner's decision. The Board agreed with the building commissioner that Mr. Sarno's "home-based enterprise, as presently set up and observed, is allowed and complies with present regulations." See Zoning Board of Appeals Decision at 2. The Chaputs then appealed the Board's decision to this Court pursuant to G.L. c. 40A, § 17.

Further facts are set forth in the Discussion section below.

Discussion

The Standard of Review

In this G. L. c. 40A, § 17 appeal, the court finds the facts de novo and then, based on those facts, reviews the correctness of the Board's decision. See Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009). Here, that decision turned on the Board's interpretation of the Zoning Bylaw and, in particular, its focus on the bylaw's identification of "contractor" as an allowed accessory use in single family residence districts. The interpretation of a bylaw is a matter of law for the court, and no deference is given to an incorrect interpretation by the Board. See Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 474-475 (2012).

Interpretation of bylaws follows the familiar rules of statutory construction. See Plainville Asphalt Corp. v. Plainville, 83 Mass. App. Ct. 710 , 712 (2013) (internal citation omitted). Bylaws are to be construed according to the legislature's intent "ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725 , 729 (2013) (internal citations and quotations omitted). This task begins by looking at "the language of the bylaw and, where the language is plain and unambiguous," the bylaw is to be enforced "according to its plain wording," Plainville Asphalt Corp., 83 Mass. App. Ct. at 712 (internal citation omitted), unless doing so would "yield an absurd or unworkable result." Shirley Wayside Ltd. Partnership, 461 Mass. at 477 (internal citations and quotations omitted). Importantly, the court is "to give effect to all [of the bylaw's] provisions, so that no part will be inoperative or superfluous." Id. (emphasis added; internal citations and quotations omitted). "We do not construe a statute's words in isolation or apart from the legal context within which they appear. The meaning of language is inherently contextual." W.A. Wilde Co., Inc. v. Board of Assessors of Holliston, 84 Mass. App. Ct. 102 , 104 (2013) (internal citations and quotations omitted).

As discussed more fully below, in upholding the building inspector's ruling that all aspects of Mr. Sarno's business use of his residential property were allowable, the Board failed to give effect to all of the bylaw's provisions and thus erred. Only some of Mr. Sarno's business-related activities at his house are permissible. Others are not.

Mr. Sarno May Continue Parking His Commercial Vehicles on the Public Street Directly in Front of His House Because Public Ways are Not Subject to Zoning Regulation and the Town Has No General Bylaws That Prohibit Such Parking

I begin with Mr. Sarno's parking of his commercial vehicles on the public street directly in front of his house. With respect to this, the Board's ruling was correct and that aspect of its Decision must be upheld.

This is because zoning bylaws do not and, as a matter of zoning law, cannot regulate public ways. The use of public ways can only be regulated by a town's general bylaws, which are outside the zoning board's jurisdiction. As the Supreme Judicial Court has held "[a]lthough a municipality is subject to its own zoning regulations, we know of no authority for the proposition that a public way, laid out by municipal action, pursuant to statute, may be used only for purposes which are permitted in the zoning district in which the public way lies. The adoption of such a rule at this time would be both surprising and disruptive throughout the Commonwealth." Harrison v. Textron, Inc., 367 Mass. 540 , 549 (1975) (internal citations omitted). The court in Textron went so far as to say that even "[i]f the issue were before us squarely, we would rule that the use of a public way is not restricted by local zoning provisions." Id.

Accordingly, so long as they are parked on the street directly in front of his house, Mr. Sarno may continue parking his commercial vehicles there. However, for the reasons discussed below, he may not transfer business equipment or materials back and forth across his property between those vehicles and or between those vehicles and his house or garage.

Mr. Sarno's Other "Outdoor" Business Activities, Including (1) Any On-Site Parking of His Commercial Vehicles or Trailer, and (2) the Transfer of Business Equipment and Materials Between His Vehicles, Trailer and His House/Garage or Between the Vehicles and Trailer Wherever They Are Parked if the Transfer Goes Across His Property, Violate the Zoning Bylaw Because They Are Visible From the Street, Change the Customary External Appearance of the Premises, and Are Visible Evidence of the Conduct of His Business

Running a contracting business from a residential home is permitted in Hull. See Zoning Bylaw, Art. III, § 31-1(d). The activities associated with that use, however, are subject to the requirement that they cannot be visible from the street, change the customary external appearance of the house, or be visible evidence of the conduct of the business. See id. See also Shirley Wayside Ltd. Partnership, 461 Mass. at 477 (bylaws to be read "to give effect to all its provisions, so that no part will be inoperative or superfluous"); Grady, 465 Mass. at 729 (bylaw language to be construed in accordance with "the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated").

Mr. Sarno's commercial trucks and vans have the names of his businesses on them. They are large enough, and specialized enough, that there is no mistaking they are commercial. One has a back-up beeper. Sometimes they are parked in his driveway. Other times they are parked in the street. Mr. Sarno regularly transfers business equipment and materials to and from his vehicles and his garage, and between the vehicles themselves. He also has a small trailer which he parks in his driveway or on his front lawn and uses to transport lawn mowers to his rental properties. At other times, the trailer will bring mulch for use at this house. On at least one occasion he has stored a tire on the lawn (albeit for less than a week); had windows for use at one of his rental properties delivered to this house and then taken to the rental property for installation; and had his employee break apart a toilet in his yard so that it could be disposed of.

As discussed above, zoning cannot restrict parking on a public street. Mr. Sarno's trucks and vans may thus be parked there until such time, if ever, that the town chooses to prohibit it through a general town bylaw. At the moment, the only restriction in the town bylaw is that the trucks must be parked directly in front of Mr. Sarno's home.

On-site business activities, however, are subject to zoning and, as noted above, the town's zoning bylaw prohibits them in residential zones to the extent they are visible from the street, change the customary external appearance of the house, or are visible evidence of the conduct of the business from the house. These activities are visible from the street, do change the "customary external appearance" of the house, and are visible evidence of the conduct of the business from the house, and I so find.

Prohibiting them on-site makes perfect sense. It is a residential neighborhood, zoned residential. These zoning provisions are aimed at maintaining a uniform residential appearance throughout the neighborhood to preserve property values and to eliminate noise and disruption from commercial operations except when they are confined to the street. The line drawn between on-site activities (prohibited) and on-street ones (allowed) may at first seem ephemeral in a close-packed neighborhood such as this with houses near the road. But it is not. It has a logic. It is easily enforced. And, as a practical matter, it eliminates most business-generated noise and disruption. This is because there will be no noise from the moving of objects to and from the house or across the house property, and noise from back-up beepers will be minimized because trucks will not be backing out of the driveway. The vehicles that have such beepers will be parked on the street where they may not need to back up at all (simply pulling into and away from the curb) and, if they do back up, it will be for shorter distances and further away from the neighboring houses.

While these may simply be matters of degree, "the great body of law consists in drawing such lines" and where, as here, the line drawn is rational, it is appropriate to defer to "the body whose business it is in the first place" to make that judgment. See Schlesinger v. State of Wisconsin, 270 U.S. 230, 241 (1926) (Holmes, J., dissenting). Here, that body was Hull's Town Meeting which debated, considered, and then adopted the bylaw provisions at issue. The Board erred when it failed to give Town Meeting's judgment the proper deference and, instead, focused solely on "contractor" as an allowable home occupation without recognizing the bylaw's limitations on the external activities associated with such use.

Conclusion

For the foregoing reasons, the Board's decision is AFFIRMED in part and VACATED in part. It is AFFIRMED insofar as it rules that the interior activities associated with Mr. Sarno's businesses do not violate zoning. It is AFFIRMED insofar as it recognizes the validity of Mr. Sarno's parking of his commercial vehicles on the public street. It is REVERSED and VACATED insofar as it purports to allow Mr. Sarno to park any of his commercial vehicles or trailers on his property, to transfer equipment or materials across his property to and from those vehicles or to or from those vehicles and his house or garage (transfer between vehicles parked on the street is allowed), or to store any commercial equipment or materials on the exterior of his property unless they are in an area not visible from the street. It is further REVERSED and VACATED insofar as it purports to allow Mr. Sarno to conduct any commercial activities on the exterior of his property (unless in an area not visible from the street), including, but not limited to, washing his vehicles or breaking up toilets or other plumbing appliances.

Judgment shall enter accordingly.

SO ORDERED.