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

Final Judgment entered in this case on October 30, 2018, with orders regarding defendant Raymond Sarno's "home occupation" activities at his residence at 296 Newport Road in Hull. As directed in that Judgment, for the reasons explained in the accompanying Decision, some of those activities were permissible, but others were not and thus prohibited.

There were no prohibitions on activities that occurred entirely within the house or inside the garage after the garage door was closed and thus were not visible from the street. These the bylaw permitted. Also, there were no prohibitions on parking commercial vehicles on the public street so long as they were parked entirely on the street. The use of a public way is not restricted by local zoning provisions. See Harrison v. Textron, Inc., 367 Mass. 540 , 549 (1975).

By the terms of the Judgment, however, Mr. Sarno was prohibited:

1. from parking any of his commercial vehicles or trailers on the 296 Newport Road property,

2. from transferring business-related equipment or materials across the 296 Newport Road property to and from those vehicles, or to or from those vehicles and his house or garage (transfer between vehicles parked on the street was allowed),

3. from storing any commercial equipment or materials on the exterior of the 296 Newport Road property unless they were in an area not visible from the street, and

4. from conducting any commercial activities on the exterior of the 296 Newport Road 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.

In their contempt complaint, plaintiffs Edmund and Peggy Chaput alleged that Mr. Sarno repeatedly violated these orders. An evidentiary hearing was held on those contentions. Based on my assessment of that evidence, including the credibility of the witnesses who testified, I find and rule and follows.

The Contempt Standard

"To constitute civil contempt there must be a clear and undoubted disobedience of a clear and unequivocal command." United Factory Outlet, Inc., v. Jay's Stores, Inc., 361 Mass. 35 , 36 (1972). Proof of undoubted disobedience must be "by clear and convincing evidence." In re Birchall, 454 Mass. 837 , 838-839 (2009). The "absence of willful disobedience", although it does not relieve a party from being adjudged in civil contempt, may be a mitigating factor in the assessment of an appropriate sanction. See United Factory Outlet, Inc., 361 Mass at 37-38.

Where I find contempt below, I find that this standard has been met.

The fact that the Judgment has been appealed does not affect the validity or enforcement of its commands, nor does the pendency of a potential change in the bylaw. "Even if erroneous, a court order must be obeyed, and until it is reversed by orderly review, it is to be respected. Only where the court lacks jurisdiction to make an order or where an order is transparently invalid on its face may a party ignore a court order and attempt to evade sanctions by litigating the validity of the underlying order." Mohamad v. Kavlakian, 69 Mass. App. Ct. 261 , 264 (2007) (internal citations and quotations omitted). This court had jurisdiction to enter the Judgment and its orders, they are not "transparently invalid" on their face, and, to his credit, despite his disagreement with them, Mr. Sarno does not contend otherwise.

Parking Violations

The plaintiffs proved numerous instances where Mr. Sarno pulled his commercial vehicles into his driveway and left them there, motor running, for various lengths of time. This was primarily the van he uses in his drain cleaning business, which he parks inside his garage during the winter. Some of these instances where the vehicle was left in the driveway were only momentary — just enough to get out of the van, open the garage door, drive into the garage, and then close the garage door — and thus did not violate the Judgment. This is because they were a "temporary and reasonable stop … incident to travel" (here, the minimum time necessary to travel into and out of the garage — a permitted activity), which the case law distinguishes from parking. See Opinion of the Justices, 297 Mass. 559 , 563-564 (1937). Anything more than such a momentary stop, for the sole, immediate purpose of opening or closing the garage door, falls squarely within "parking" ("bring[ing] a vehicle to a halt and leav[ing] it temporarily," see Oxford Concise English Dictionary at 1037 (10th Ed., 1999)) and violates the clear, undoubted commands of the Judgment. Mr. Sarno has no credible excuse for misunderstanding this, since the bylaw forbids "visible evidence of the conduct of [the] home occupation other than one announcement sign", and further provides that "material, equipment, or products shall not be visible from the street." Zoning Bylaw, Art. III, § 31-1 (d) (cited in the court's Decision at 3) and any exceptions are necessarily the narrowest possible ones.

These clear violations include the numerous times Mr. Sarno got out of his vehicle and walked away from it for one task or another (getting the mail, taking packages from the van into his house and then coming back out, walking to the street to go back and forth to his other vehicles, or walking to the street to take pictures of the Chaputs' cars), and are not excused by the fact that he left the motor running. Indeed, leaving the motor running is a clear indication that Mr. Sarno knew he was in violation and was seeking to disguise it, and his "slow walking" on these occasions [Note 1] is clear evidence of an intent to annoy the Chaputs, who he knew were observing him. No one walks away leaving a vehicle idling for that length of time for any other reason.

Mr. Sarno's contention that the Judgment is not violated when he parks his commercial vehicles part way in the driveway and part way in the driveway curb-cut to the street is also incorrect, as is his contention that he can pull his commercial vehicles into the driveway to turn them around. Parking in the curb cut is parking in the driveway, not the street, and the reasons he gave for using the driveway as a turn-around (a provocative act, given that the box truck has a back-up beeper) are not credible. Regardless of where the Chaputs parked, he could pull straight back and drive around them. There is no reason why he could not simply have gone around the block to reverse direction.

Storing The Garbage Cans for His Rental Properties at His Residence In a Place Where They Are Clearly Visible From the Street, and Transporting Them To and From That Place to the Rental Properties

The evidence showed that Mr. Sarno keeps the garbage cans for his rental properties at 450 and 565 Nantasket Avenue at his 296 Newport Avenue home (they are labelled "450"), storing them under the deck in a place clearly visible from the street, and then taking them back and forth to the rental properties on trash days, crossing the 296 Newport Avenue property each time he does so. This is a clear violation of the Judgment. His excuse is that he also uses them for the trash from his residence, and that this "joint" use makes storing them at 296 Newport Avenue permissible. Not so. As he readily admitted, he is a single man and generates almost no trash himself. Pictures showed that even a week's worth of trash from 296 Newport Avenue easily fits into a grocery store plastic bag, knotted at the top. All other trash in the barrels comes from his rental properties. Indeed, that is why he has the trash picked up at 450 Nantasket Avenue. There is no persuasive reason, and there was certainly none given, why the garbage cans cannot be kept at the rental properties and, for health reasons, alarming that they aren't. [Note 2] In every fair sense, these garbage cans are "material, equipment, or products" for his rental properties, and thus within the Judgment's prohibitions.

Transporting the Tire and the Wire Cable Across the 296 Newport Road Property

On a single occasion, Mr. Sarno's employee transported one of his commercial truck's tires across the 296 Newport Road property, and on another single occasion Mr. Sarno himself took a spool of cable from inside his house, across the property, to his van which was parked on the street. He admits these were violations.

The Other Allegations

The Chaputs alleged that the other materials stored under the deck at 296 Newport Road next to the "450" garbage barrels and visible from the street were also materials used in Mr. Sarno's businesses. The evidence was otherwise. The ladder is used at the house. So is the fencing (intended to shield the hot tub). So is the hot tub. So are the shovels and the hose. And so is the lawn mower. The "jack" taken from the garage and used to change the flat tire on the commercial van is certainly larger than the norm — in appearance, it looks like those often seen at car repair shops — but I am persuaded that its actual use by Mr. Sarno is on the classic Corvette he stores in his garage, and this is a personal use.

Thus, none of these were violations of the Judgment.

Remedy

Civil contempt sanctions are remedial. They "look to the future and are designed to aid the plaintiff by bringing a defiant party into compliance with the court order … by setting forth in advance the penalties the court will impose if the party deviates from the path of obedience." Labor Relations Comm'n v. Fall River Educators' Ass'n, 382 Mass. 465 , 476 (1981) (internal citation omitted). I thus impose a fine of $250 for each individual future violation, which is well within Mr. Sarno's financial resources provided he focuses on compliance. None of the orders is difficult. All are easy to obey if the will and focus are there. [Note 3]

I decline to award any retrospective compensatory fine because I have no foundation upon which to assess the actual harm caused by the violations. I will, however, assess the plaintiff's "reasonable expenses in enforcing his rights." See Manchester v. Department of Environmental Quality Engineering, 381 Mass. 208 , 215 (1980). The Chaputs are to file an appropriate motion for those expenses, to which Mr. Sarno will have seven calendar days thereafter to file a written response. Thereafter the motion will be decided on the papers unless the court, in its discretion, schedules oral argument.

SO ORDERED.