TIMOTHY RAESLY and BRITTANY DUPONT-RAESLY v. JOHN BOUGHNER, ROBERT CIGNETTI, REBECCA KILBORN, JEFFREY SAUER, KENNETH SCHOLES, KENNETH JARVINEN and CORRINE DOHERTY as they are the Members of the DANVERS ZONING BOARD OF APPEALS and the TOWN OF DANVERS

Trial courts hearing appeals of local zoning board decisions under G.L. c. 40A, §17, have consistently been instructed to defer to the board's reasonable interpretation of its own zoning bylaw. See, e.g., Tanner v. Board of Appeals of Boxford, 61 Mass. App. Ct. 647 , 649 (2004); Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73-74 (2003); Livoli v. Zoning Bd. of Appeals of Southborough, 42 Mass. App. Ct. 921 , 923 (1997). In this case, Richard Maloney, the Building Inspector and zoning enforcement officer for the Town of Danvers (Building Inspector), determined that the two goats that Timothy Raesly and Brittany Dupont-Raesly (the Raeslys) keep as pets on their property violated the Town of Danvers Zoning Bylaw's (bylaw) ban on animal husbandry in residential districts. The Raeslys appealed to the Danvers Zoning Board of Appeals (ZBA), which affirmed the Building Inspector's determination, and have now appealed to this court. On the parties' cross-motions for summary judgment, the court finds that, while it may not have made the same decision as the Building Inspector and the ZBA, their interpretation of the bylaw is not unreasonable and requires the court's deference. Judgment shall enter affirming the decision of the ZBA and declaring that the application of the bylaw provisions on animal husbandry to the Raeslys' goats was not unreasonable.

Procedural History

The Raeslys filed their complaint on October 12, 2018. The Raeslys' complaint is an appeal, pursuant to G.L. c. 40A, §17, of a decision by the ZBA affirming the Building Inspector's determination that the Raeslys are using the property known as 109 Hobart Street, Danvers, Massachusetts (the property) for animal husbandry.

The case management conference was held on December 10, 2018. On May 6, 2019, the Raeslys filed their Motion for Summary Judgment along with their Memorandum of Law in Support of Motion for Summary Judgment, Statement of Undisputed Material Facts in Support of Plaintiffs' Motion for Summary Judgment (Pl. St.), Affidavit of Brittany Dupont-Raesly, and Appendix (App.). The ZBA filed Defendants' Opposition and Cross Motion for Summary Judgment, Defendants' Response to Plaintiffs' Statement of Material Facts (Def. Resp.), Defendants' Memorandum of Law in Support of Opposition and Cross Motion for Summary Judgment, and Appendix on May 28, 2019. The ZBA also filed the Affidavit of Richard Maloney, Town of Danvers Building Commissioner on June 19, 2019 (Maloney Aff.).

The court heard argument on the Motion for Summary Judgment and the Cross-Motion for Summary Judgment on June 19, 2019, and took the motion under advisement. This Memorandum and Order follows.

Summary Judgment Standard

Summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits . . . show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). Where the non-moving party bears the burden of proof, the "burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991); see Regis Coll., 462 Mass. at 291-292.

Undisputed Facts

The court finds that the following facts are undisputed.

1. The Raeslys own the property by a deed from Kate Fallon f/k/a Kevin J. Fallon and Paula Hammond dated August 20, 2001, and recorded in the Essex South Registry of Deeds (registry) at Book 27554, Page 240. (App. Ex. 1).

2. Defendants John Boughner, Robert Cignetti, Rebecca Kilborn, Jeffrey Sauer and Kenneth Scholes, Kenneth Jarvinen, and Corrine Doherty are members of the ZBA. (Pl. St. ¶ 2; Def. Resp. ¶ 2).

3. The property is located in the residential 1 zoning district under the bylaw. (App. Ex. 2).

4. The Raeslys have two pet goats, Dean and Deluca, whom they have owned for seven years. (App. Ex. 3, ¶¶ 3-5).

5. The goats live in a wooden house located within a fenced-in enclosure with their names carved into a small wooden plaque on the front of the house. (App. Ex. 3, ¶ 7).

6. Both of the goats are neutered. (App. Ex. 3, ¶ 9).

7. The goats are not used for any commercial purpose. (App. Ex. 3, ¶ 10).

8. The Raeslys have six other pets – two dogs, two cats, a parakeet and a turtle. (App. Ex. 3, ¶ 15).

9. By a letter dated May 14, 2018, the Building Inspector informed the Raeslys that they were in violation of the bylaw (enforcement order). (App. Ex. 4).

10. The enforcement order stated that there were "chickens/geese and other animals being raised at the above referenced address. This use is defined as Animal Husbandry in the Town of Danvers Zoning Bylaw." (App. Ex. 4).

11. On June 14, 2018, the Raeslys appealed to the ZBA from the Building Inspector's enforcement order. (App. Ex. 5).

12. "Animal Husbandry" is a specified use under the bylaw. Section 40 of the bylaw defines animal husbandry as [T] he raising and keeping of animals, as an accessory use to a single-family dwelling, where all necessary uses, such as barns, pens, cages, water/feeding stations, and waste storage/disposal areas shall be located at least fifteen (15) ft. from an abutting residential lot line.

By right: small animals (less than 15 pounds), including but not limited to duck, geese, pigeons, chickens and rabbits, provided that:

- The total number of animals does not exceed fifteen (15) on lots of 20,000 sq. ft. or smaller; on lots larger than 20,000; one additional animal is allowed for each 2,000 sq. ft. beyond the initial 20,000 sq. ft.

Special permit:

- The total number of animals exceeds fifteen (15) larger animals (more than fifteen (15) pounds), including but not limited to cows, pigs, sheep, turkeys and goats. (App. Ex. 6).

13. Animal husbandry is not an allowed use of property in the residential 1 zoning district (animal husbandry bylaw). The bylaw provides that any use not allowed in a district is prohibited. (App. Exs. 4, 6; Pl. St. ¶ 21; Def. Resp. ¶ 21).

14. The bylaw does not provide a definition for "pets" nor does it define the keeping of pets as an accessory use of a residential property. (App. Ex. 6).

15. Many residents of the Town of Danvers have pets. (App. Ex. 3, ¶ 18).

16. The ZBA unanimously voted to uphold the Building Inspector's enforcement order and issued its decision on September 10, 2018 (decision). The decision was filed with the Town Clerk on September 24, 2018. (App. Ex. 5).

17. The Raeslys filed a timely appeal of the ZBA's decision to this court.

18. The Town of Danvers has previously enforced the bylaw at issue against residents in the Town who had commercial and agricultural operations on their properties. (App. Exs. 7.a- c).

Discussion

An appeal of a zoning board of appeals decision is de novo; that is, in an action under G.L. c. 40A, §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." Id. In this action, the Raeslys have appealed from the ZBA's decision affirming the Building Inspector's enforcement order. In doing so, the ZBA necessarily interpreted and enforced the bylaw provisions relating to animal husbandry. Generally, a local board's reasonable interpretation of its own zoning bylaw is entitled to judicial deference. Livoli, 42 Mass. App. Ct. at 923; see Schertzer v. City of Somerville, 345 Mass. 747 , 751 (1963) (every presumption is to be afforded in favor of the validity of an ordinance). Specifically, the courts will defer to a town's interpretation so long as (1) the decision and interpretation were not made on legally untenable grounds, and (2) assuming the standard was proper, the application of the bylaw was not "unreasonable, whimsical, capricious or arbitrary." Britton, 59 Mass. App. Ct. at 73-74. Reasonableness is determined by reading the bylaw at issue "in complete context" and giving it "a sensible meaning within that context." Board of Selectmen of Hatfield v. Garvey, 362 Mass. 821 , 826 (1973).

The Raeslys argue that the bylaw is inapplicable to their goats because it only applies to animals kept for animal husbandry uses, and Dean and Deluca are kept as pets. The bylaw does not define "pet." When the plain language of a bylaw does not clearly communicate the meaning of the legislation, or it lacks an express definition for a material word or phrase, the court must rely on the "well-established principles of statutory construction [to] guide [its] interpretation." Commonwealth v. Escobar, 479 Mass. 225 , 228 (2018) (citation omitted); see Tanner, 61 Mass. App. Ct. at 649. For example, clear and unambiguous language is conclusive to legislative intent, and the court is to interpret and enforce the bylaw in "accord[ance] [with] its plain wording." Martha's Vineyard Lank Bank Comm'n v. Board of Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 27-28 (2004). Yet, when words in a bylaw are left undefined, they are to be given "their usual and accepted meanings," derived "from sources . . . . such as their use in other legal contexts and dictionary definitions." Federal Nat'l Mtge. Ass'n v. Rego, 474 Mass. 329 , 334 (2016), quoting Seidman v. City of Newtown, 452 Mass. 472 , 477 (2008) (citation omitted). While the court is generally required to follow the plain wording of a bylaw, it must also "'avoid any construction of statutory language which leads to an absurd result.'" Bellalta v. Zoning Bd. of Appeals of Brookline, 481 Mass. 372 , 378 (2019), quoting Singer, 3C Statutes and Statutory Construction, §77:7, at 689 (8th ed. 2018); see Martha's Vineyard Lank Bank Comm'n, 62 Mass. App. Ct. at 27-28. However, a bylaw's "'potential unfairness,'" or potential to result in an anomaly, does not negate the court's duty to defer to clear statutory language. Martha's Vineyard Lank Bank Comm'n, 62 Mass. App. Ct. at 28, quoting Commonwealth v. Mandell, 61 Mass. App. Ct. 526 , 528 (2004).

The Merriam-Webster Dictionary defines a "pet" as "a domesticated animal kept for pleasure rather than utility." Pet, Merriam-Webster Dictionary, https://www.merriam- webster.com/dictionary/pet (last visited, Oct. 17, 2019). The undisputed evidence is that the Raeslys' goats are treated as pets. They are domesticated and are used "for pleasure rather than utility." Id. The keeping of pets is a common allowed accessory use even if it is not listed as such in the bylaw. Contrary to the Raeslys' argument, however, that the goats' status as pets does not mean that the keeping of goats cannot also constitute "animal husbandry" under the bylaw. Depending on the definition and interpretation of the meaning of "animal husbandry" in the bylaw, the Raeslys' goats may or may not be considered animal husbandry, notwithstanding that they are also kept as pets.

The court thus turns to the interpretation of term "animal husbandry" as it used in the bylaw. The bylaw defines "animal husbandry" as "the raising and keeping of animals, as an accessory use to a single family dwelling, where all accessory uses, such as barns, pens, cages, water/feeding stations and waste storage/disposal areas shall be located at least fifteen (15) ft. from an abutting residential lot line." Bylaw §40.2, App. Ex. 6. The Raeslys argue that "the raising and keeping of animals," which is not further defined in the bylaw, means the breeding and raising of domestic animals for commercial use, such as meat, milk, or eggs. Accepting that definition, "animal husbandry" would exclude the goats, which are neutered and not used for any commercial purposes.

This argument has weight. It is tempered, however, by two considerations. First, dictionary definitions suggest that the goats fall under the scope of animal husbandry. "Animal husbandry" is defined as "a branch of agriculture concerned with the production and care of domestic animals." Animal husbandry, Merriam-Webster Dictionary, https://www.merriam- webster.com/dictionary/animal%20husbandry (last visited, Oct. 17, 2019). "Domestic animals" are defined as "any . . . . animals (such as the horse or sheep) domesticated so as to live and breed in a tame condition." Domestic animals, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/domestic%20animal (last visited, Oct. 17, 2019). Traditionally, goats are domesticated farm animals, and they are used for agricultural purposes.

Of more salience is that the bylaw's definition of "animal husbandry" does not stop with the reference to the "raising and keeping of animals." The definition goes on to further define animal husbandry allowed "By-right" and animal husbandry allowed by "Special permit." The by right definition refers to "small animals (less than 15 pounds)" and includes, but is not limited to, ducks, geese, pigeons, chickens and rabbits. Bylaw §40.2, App. Ex. 6. The special permit definition refers to "larger animals (more than fifteen (15) pounds), including but not limited to cows, pigs, sheep, turkeys and goats" (emphasis supplied). Id. It is this explicit inclusion of "goats" in the definition of animal husbandry that the Building Inspector relied on in issuing the enforcement order and the ZBA relied on in the decision. App. Exs. 4, 5; Maloney Aff. ¶¶ 4-5.

The phrase "included, but not limited to," when preceding a specified list, "[limits] the applicability of [the statutory language]" when determining whether "'particulars that were not mentioned are sufficiently like those that were.'" Mahoney v. Baldwin, 27 Mass. App. Ct. 778 , 780 (1989), quoting 2A C. Sands, Sutherland Statutory Construction §47.18, at 110 (4th ed. 1973). Here, the court has not been asked to determine the applicability of the bylaw to an unidentified species, but instead to determine its applicability to specified ones. The bylaw, in its complete context, can be reasonably read to apply to the aforementioned animals, specifically goats, but not to exclude or exempt any non-listed species so long as they "come within [the] spirit and intent" of the bylaw. Mahoney, 27 Mass App. Ct. at 780 (citation omitted); see Garvey, 362 Mass. at 826.

Both the Raeslys' and the ZBA's reading of the bylaw are reasonable. It can be reasonably inferred that the bylaw is intended to restrict the use of the equivalent of farm animals, not animals kept as pets. It can also be reasonably inferred that the bylaw is intended to specifically restrict the "raising and keeping" of "goats" in a residential 1 zoning district, regardless of the reason for their presence on a property. Given these two reasonable interpretations, the ZBA's interpretation of the bylaw is entitled to deference. Tanner, 61 Mass. App. Ct. at 649 ("Where the board's interpretation is reasonable, . . . the court should not substitute its own judgment."); Livoli, 42 Mass. App. Ct. at 923. The ZBA has, in effect, read the bylaw as addressing not how the animals are used, but instead as regulating the keeping of large or disruptive animals outdoors on residential property in order to prevent nuisances created by such animals. This reading, tied to the prevention of nuisance, is substantially related to the "public health, safety, convenience, morals or welfare" of the community and neighboring properties. Schertzer, 345 Mass. at 751.

The parties each point to a different case in support of their positions. The Raeslys rely on Simmons v. Zoning Bd. of Appeals of Newburyport 60 Mass. App. Ct. 5 (2003), in which the Appeals Court upheld the City of Newburyport's determination that three horses were pets and a permissible accessory use of a residential property under the bylaw in question. Id. at 12. The ZBA looks to Pratt v. Building Inspector of Gloucester, 330 Mass. 344 (1953), in which the Supreme Judicial Court held that, under the City of Gloucester's ordinances, the stabling of horses was an impermissible use of the property in question. Id. at 347. The Raeslys argue that since the Simmons court upheld the City of Newburyport's interpretation of its bylaw, and specifically because the horses were determined to be pets, the ZBA's interpretation of the animal husbandry bylaw is unreasonable. In Simmons, the Appeals Court upheld the determination of the building inspector and board, "with whom [it had] no basis for disagreement," Simmons, 60 Mass. App. Ct. at 9, in effect deferring to the board's interpretation. Moreover, the challenged zoning ordinance in Simmons allowed for accessory uses to residential property in general terms, and it did not specify what types of uses were permitted or prohibited. Id. at 12. In contrast, in Pratt, the Supreme Judicial Court relied on the plain language of the ordinance which not only identified "stables" as "more or less undesirable uses," but also the specific districts in which they were permitted. Pratt, 330 Mass. at 345. Here, similar to the ordinance in Pratt, the bylaw specifically outlines when and where "animal husbandry" is permitted and prohibited. Further, it unambiguously identifies "goats" as included in the category of animals not permitted in the residential-1 zoning district under the bylaw. In short, the ZBA's interpretation of the bylaw was reasonable and valid. It not only had a proper, legal foundation for its interpretation, but also did not apply the bylaw in an unreasonable, whimsical, arbitrary or capricious manner. Britton, 59 Mass. App. Ct. at 74.

The Raeslys have also brought a claim for a declaratory judgment and a claim under G.L. c. 240, §14A; the court treats these two claims as a claim for a declaration under §14A, which requires some further discussion. Section 14A allows property owners in possession, like the Raeslys, to bring an action in the Land Court for a determination of the validity of a zoning bylaw, either on its face or as it is applied to their property. Id.; see Amberwood Dev. Corp. v. Board of Appeals of Boxford, 65 Mass. App. Ct. 205 , 208 (2005). The burden is on the Raeslys, as the owners of the property, "to prove that the zoning regulation is unreasonable as applied to [their] property." Id. at 209. In this case, the question raised by the Raeslys' §14A claim is whether the animal husbandry bylaw is unreasonable as applied to the property and the Raeslys' keeping of their goats on their property. That is the precise question raised in their appeal of the decision under G.L. c. 40A, §17, which has been answered above. For the foregoing reasons, the court finds that the animal husbandry bylaw is not unreasonable as it has been applied by the Building Inspector to the property.

Conclusion

For the foregoing reasons, the Plaintiffs' Motion for Summary Judgment is DENIED and the Defendants' Cross-Motion for Summary Judgment is ALLOWED. Judgment shall enter affirming the decision and declaring that the animal husbandry bylaw is not unreasonable as it has been applied by the Building Inspector to the property.

SO ORDERED