TERRELL HALEWIJN, plaintiff v. TERRENCE J. HURRIE, KENNETH H. FOREMAN, EDWARD VAN KEUREN, PAUL MURPHY, GERALD POTAMIS and ROBERT DUGAN, in their capacities as Members of the TOWN OF FALMOUTH ZONING BOARD OF APPEALS, municipal defendants and LATITUDE 41 NORTH, LLC, private defendant

Introduction

Buying real estate online, sight unseen, is not without risk. In 2017, Terrell Halewijn (Halewijn) purchased the property at 34 Oakwood Avenue in Falmouth for $25,379. The sales price was probably an indication of some of the challenges with the lot: it is landlocked, with no frontage (access is by easement over a neighbor), is vacant, has no utilities, and is undersized for the residential zone in which it lies. Halewijn was attracted to the lot because it is a two-minute walk to a satellite parking lot for the Woods Hole ferry to Martha's Vineyard, where he owns another property. Halewijn began parking his RV and other vehicles at the property, and then walking to the satellite lot to take the free shuttle bus to the ferry. The owner of the abutting lot over which the easement runs, Latitude North 41, LLC, filed an enforcement request with the Falmouth Building Commissioner, and appealed the Building Commissioner's denial to the Falmouth Zoning Board of Appeals (Board). The Board reversed the Building Commissioner, finding that Halewijn's storage of vehicles was not permitted under the Falmouth Zoning By law, and Halewijn appealed to the Land Court.

After consideration of the evidence at trial, I agree with the Board. Halewijn is storing his RV and other vehicles at his property, a principal use not allowed under the Falmouth Zoning By-law. Because this is his principal use, he cannot claim that his vehicle storage is an accessory use, and, in any event, accessory storage of vehicles requires a special permit that Halewijn never sought. Halewijn's attempt at trial to show that he uses his property for agriculture, a permitted use, falls far short -- the plants on the property are sparse, and his alleged agricultural activities are woefully inadequate. The Board's decision will be affirmed.

Procedural History

The complaint was filed on December 28, 2018. A case management conference was held on February 11, 2019. The pre-trial conference was held on July 23, 2019. The Administrative Record was filed on August 26, 2019. On September 4, 2019, the Defendant's Motion in Limine Regarding View was heard and allowed. The trial and view were held on September 10, 2019. Exhibits 1-23 and Chalks A and B were marked. Testimony was heard from Terrell Halewijn and Anthony Persichilli. On November 12, 2019, Argument of your Plaintiff, Terrell Halewijn, was filed. The trial transcript was filed on November 19, 2019. The Private Defendants' Post-Trial Memorandum was filed on November 21, 2019. The Post-Trial Hearing and Closing Arguments were held on December 3, 2019. The case was then taken under advisement. This Decision follows.

Facts

Based on the view, [Note 1] the undisputed facts, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.

Parties and their Properties:

1. Plaintiff Halewijn purchased 34 Oakwood Avenue in Falmouth, Massachusetts 02540 (the Halewijn property) for $25,379.00 through an online auction on August 2, 2017. The deed was recorded in the Barnstable Country Registry of Deeds (registry) in Book 30671, Page 173. Halewijn also owns 14592 Royal Way in Truckee, California. In total, he owns 13 properties in five different states. Compl. ¶ 1; Joint Pre-Trial Memo Agreed Facts ¶¶¶ 2, 3, 19; Exh. 2.

2. Halewijn splits his time among his properties, but spends 3-6 months, predominantly in the summer, in Martha's Vineyard. He typically arrives in Massachusetts at the end of April and leaves at the end of September. Joint Pre-Trial Memo Agreed Facts ¶ 2; Tr. 19:4-12, 44:22-25, 45:1-2.

3. Latitude North 41, LLC (LLC), is a limited liability company organized in the State of Florida and registered with the Secretary of the Commonwealth as a foreign corporation. The LLC was executed in Florida on July 20, 2017 and registered in Massachusetts on April 23, 2019. Joint Pre-Trial Memo Agreed Facts ¶ 6; Tr. 121:3-7; Exh. 5; Exh. 7.

4. The members of the LLC are Anthony Persichilli (Persichilli) and Alicia M. Persichilli, as Trustees of the Alicia M. Persichilli Revocable Trust, dated November 9, 2005, with a principal office address of 5689 Shaddelee Lane West, Fort Meyers, Florida 33919. Joint Pre-Trial Memo Agreed Facts ¶ 7.

5. The LLC purchased the property at 29 Oakwood Avenue (LLC property) for $523,000, by a deed recorded in the registry on July 31, 2017 in Book 30663 page 52. Tr. 96:13- 17; Exh. 3.

6. Persichilli and his wife have a primary residence in Fort Myers, Florida. They use the LLC property as a second home and vacation property. Joint Pre-Trial Memo Agreed Facts ¶ 9; Tr. 96: 9-10, 96:18-19, 97:8.

7. They typically arrive at the LLC property at the beginning of June and leave towards the end of August. Sometimes, they fly back for weekends and weeks during the year. Tr. 135:21-25.

8. The LLC property is .17 acres in size (7,237 sq. ft.) and improved with a single family dwelling. Joint Pre-Trial Memo Agreed Facts ¶ 8; view.

9. Directly abutting the LLC property, to the rear, is the Halewijn property. View.

10. The Halewijn property is .22 acres (9,523 sq. ft.), is vacant, and has no street frontage. Joint Pre-Trial Memo Agreed Facts ¶ 11; view.

11. The Halewijn property is accessed by an access easement over the LLC property and is not serviced with any utilities (water, electric, sewer, etc.). Joint Pre-Trial Memo Agreed Facts ¶¶ 12, 13; view.

Zoning By-law:

12. Halewijn testified that he "didn't do any title search or that type of thing" when bidding online for the Halewijn property and that he took the property subject to zoning law requirements. Tr. 49:6-7, 50:2-5; Exh. 2.

13. The Falmouth Zoning By-law (Zoning By-law) prohibits all uses of property in Falmouth, unless expressly allowed by the use regulations in the Zoning By-law. It states, "No building or structure shall be erected, altered or extended and no premises shall be used, except as provided in Articles V through XIII, district use regulations." Exh. 19 § 240-17.

14. Both the LLC property and the Halewijn property are in a Residential C Zoning District (RC District). Joint Pre-Trial Memo Agreed Facts ¶ 14.

15. Article V of the Zoning By-law specifies the uses allowed in the RC District. In relevant part, Article V provides that the following uses are permitted as of right as principal uses:

a. One-family detached houses

b. Certain community service uses

c. Agriculture, horticulture, and floriculture.

Exh. 19 §§ 240-19, 240-20, 240-21.

16. The Zoning By-law defines agriculture as "[i]nclud[ing] farming in all its branches, generally the cultivation and tillage of the soil, dairying, the production cultivation, growing and harvesting of any agricultural, floricultural, viticultural or horticultural commodities, and shellfishing, including preparations and delivery to storage or to market or to carriers for transportation to market." Exh. 19 § 240-13.

17. The term "accessory use" is defined in the Zoning By-law as follows:

A use of land or building on the same lot with, and customarily incidental but secondary to, a permitted use except that if more than 30% of the floor area or 50% of the lot area is occupies by such use, it shall no longer be considered 'accessory.'

Exh. 19 § 240-13.

18. In relevant part, Article V provides that the following accessory uses are customarily incidental to the foregoing principal uses, and may be allowed as accessory uses by special permit:

a. Parking of any motor home, travel trailer, or fifth-wheel trailer not located within the minimum front, side (parking) or rear yard setback requirements

b. Parking any commercially registered vehicle with a gross vehicle weight of more than 13,000 pounds

Exh. 19 §§§ 240-22, 240-23(G)(4)(a), 240-23(G)(4)(b).

19. The term "motor home" is defined in the Zoning By-law as, "[a]n automotive vehicle built on a truck or bus chassis and equipped as a self-contained traveling home." Exh. 19 § 240-13.

Use of Property:

20. Since Halewijn purchased the property in 2017, he has used it to park and store motor vehicles. Joint Pre-Trial Memo Agreed Facts ¶ 20; Tr. 26:3-24.

21. Halewijn uses the property for personal purposes, including to conveniently get back and forth to his properties on Martha's Vineyard. He testified that during the peak of summer, it can be very difficult to get a vehicle on and off the island, and that the only way to travel to Martha's Vineyard is via air or water. Tr. 50:22-24,51:9-21.

22. Halewijn is able to park his RV at the Halewijn property, walk two minutes down Oakwood Street to the lot at Palmer Avenue, take a free bus down to the Woods Hole terminal, and take the ferry to the island. This saves him the $175 ferry fare for his RV. Tr. 37:4-8, 52:4-5, 52:22-25, 53:14-23; view.

23. Halewijn testified that storing vehicles on the property protects him from evacuation situations from the island and saves him a 25-mile round trip to the ferry. Tr. 36:23- 25, 37:2-3.

24. Persichilli testified that when he first met Halewijn, Halewijn told him that "he lives in Martha's Vineyard in the summer," and that he is "going to use [the Halewijn property] to park his vehicle while he's in Martha's Vineyard." Tr. 101:6-8. I credit this testimony.

25. Halewijn also testified that he probably had a conversation with Persichilli shortly after he purchased the Halewijn property about parking cars and vehicles on the property, and that it was consistent with his intentions for the property to do so. Tr. 54:24-25, 55:3-6, 55:9-10. I credit this testimony.

26. Halewijn owns around 15 vehicles, and testified that he envisions storing "maybe seven" vehicles on the property at any given time in the future, "including a boat and a trailer." Tr. 27:7-10. I credit this testimony.

27. The vehicles that have been stored on the subject property include a green van, a Subaru wagon, and an RV. Joint Pre-Trial Memo Agreed Facts ¶ 21; Tr. 26:3-24.

28. The green van was stored on the property for various periods of time ranging from a few days to a few weeks, and during the summer of 2017, the green van was used on and off for a few hours/days but was predominantly parked at 34 Oakwood until the fall of 2018. Joint Pre-Trial Memo Agreed Facts ¶ 22; Tr. 56:3-16, 102:3-25.

29. The RV was stored on the property beginning in May of 2018 and remained on the property until June of 2019 without being moved. After being briefly moved in June of 2019, the RV returned to the property for storage. Joint Pre-Trial Memo Agreed Facts ¶ 23; Tr. 58:3-6, 60:3-4, 60:12-16.

30. Halewijn does not have a special permit to park the RV. Tr. 67:19-22.

31. Photographs taken before the enforcement action commenced show Halewijn's vehicles parked on the property and overgrown vegetation. Exh. 8, 9, 10; Tr. 55:22-25, 57:24-25, 58:1-9.

32. On May 24, 2018, Halewijn emailed the Assistant Zoning Enforcement Officer of the Town of Falmouth that he uses the Halewijn property "as a place to relax and enjoy nature from time to time," and to "park a vehicle or few as needed from time to time." Exh. 13. Dispute:

33. On or about August 20, 2018, the LLC submitted a request for enforcement to the Building Commissioner asserting that the parking and storage of motor vehicles on the Halewijn property was not allowed by the Zoning By-law. Joint Pre-Trial Memo Agreed Facts ¶ 24; Tr. 65:17-25; Exh. 14.

34. On or about August 28, 2018, the Building Commissioner issued a written response stating that, in his opinion, there were no zoning violations at Halewijn property. He specifically determined that "the parking of the property owner's registered RV within the '. . . minimum front, side (parking) or rear yard setbacks . . .' (chapter 240-23 G(4)(a), in my opinion, does not constitute a violation of the zoning bylaws." Joint Pre-Trial Memo Agreed Facts ¶ 26; Exh. 15; Tr. 65:24-25, 66:1.

35. On September 25, 2018, the LLC appealed the Building Commissioner's ruling by filing a petition with the Board. Joint Pre-Trial Memo Agreed Facts ¶ 27; Exh. 16.

36. On November 22, 2018, Halewijn notified the Board that he spent "less than 20 or even 10 hours total occupying the property since ownership [in 2017]." Exh. 17, page 74.

37. The Board held a hearing on November 29, 2018. At the conclusion of the hearing, the Board voted 4-1 to grant the appeal and to overturn the Building Commissioner's decision. Joint Pre-Trial Memo Agreed Facts ¶ 28; Exh. 18; Tr. 66:10-12.

38. The Board issued a written decision, which was recorded in the Town Clerk's Office on December 10, 2018 (decision). Joint Pre-Trial Memo Agreed Facts ¶ 29; Exh. 18.

39. The Board made findings in the decision, including the following:

Section 240-23 (G) (4)(a) that the Building Commissioner cited in his letter of 'no violation' dated August 28, 2018 to Attorney Wall is for 'Special Permit Uses' – specifically sub-section G 'accessory uses.' There is no special permit for an accessory use to park an RV on subject property; and further, you cannot get to accessory use without establishing a principal use – therefore the Building Commissioner erred in his determination. In addition, the parking and storing of motor vehicles is not specified as an allowed principal use in the Residential C District and therefore the parking and storing of motor vehicles is not allowed as a stand-alone use and such use is prohibited on the subject property under Section 240-17 of the Code of Falmouth. Joint Pre-Trial Memo Agreed Facts ¶ 30; Exh. 18.

40. Further, the Board issued an order that "[t]he Building Commissioner shall have the recreational vehicle and other vehicles removed from said property." Joint Pre-Trial Memo Agreed Facts ¶ 31; Exh. 18.

41. Halewijn appealed the decision by filing this action, pursuant to M.G.L. c. 40A, § 17, on December 28, 2018. Joint Pre-Trial Memo Agreed Facts ¶ 32.

Agricultural Activities:

42. Halewijn testified that he has "enjoyed horticulture all [his] life," that he studied it in high school, and that his mother was very interested in gardening Tr. 28:5-8, 28:16-20.

43. Halewijn testified that he envisioned "a natural fence" of hedges around the Halewijn property, and that in the beginning when he bought it, he "let it grow to see what's there." He testified that he "wanted to see what's already growing there previous before [he] would make any alterations." Tr. 29:17-18, 30:19-20, 71:11-13.

44. Halewijn testified that he planted a lilac bush on the property when he purchased it in 2017. Tr. 71:1-21.

45. Persichilli testified that he did not see any agricultural activity or gardening on the lot during the summer of 2017. Tr. 103:12-14. I credit this testimony.

46. Persichilli testified that during the spring and summer of 2018, he did not observe any maintenance of any kind done on the lot, "nor did [he] see Mr. Halewijn staying on the lot other than to pick up a car and come here." Tr. 104:17-25. I credit this testimony.

47. Persichilli testified that during the summer of 2018, "[t]here was nothing done to the lot. There was no maintenance." Tr. 105:18-22. I credit this testimony.

48. Halewijn testified that he transplanted pine trees from Maine, that he has apple and pear trees in pots, and that he planted tiny lilacs, blueberries, and huckleberries and a smoke tree. Tr. 31:6-7, 31:14-15, 31:19-20; view. I credit this testimony.

49. Halewijn also testified that he "tried to put in a vegetable garden" but that he "didn't really put enough time into it" and that the plants "kind of never made it." Tr. 31:20-23; view. I credit this testimony.

50. Halewijn testified that he uses the RV for his plants to transport water from gas stations, to wash his hands after dealing with dirt, as protection from mosquitos, weather, and as "general protection," and that it would be convenient to preserve plantings. Tr. 33:1-20, 35:18- 19, 36:1-3, 41:7-9; view. I do not credit this testimony.

51. The property, as of spring 2019, contained many weeds. Exh. 20.1, 20.7, 20.8, 20.11, 20.12; view.

52. The parties were allowed to enter the property on June 25, 2019 to take pictures. Tr. 78:1-7.

53. Many of the plants on the property appear to be small and recently planted. Tr. 78:13-25, 79:1-25, 80:1-18; Exh. 20.9, 20.10, 20.11, 20.12, 20.13, 20.14, 20.15; view.

54. Halewijn exhibited difficulty in identifying the plants on his property. Tr. 78:18- 23, 79:20-25, 80:11-16.

55. On July 23, 2019 during a pretrial conference, the Land Court announced it would conduct a view of the Halewijn property as part of these proceedings. Tr. 81:15-25.

56. Persichilli testified that after the July 23, 2019 pretrial conference, Halewijn "[c]ame back that afternoon and spent three or four hours mowing the property." Tr. 82:1-8, 115:5-8. I credit this testimony.

57. Halewijn testified that he did not mow the lawn until July 2019 because he was waiting for a sale on a lawn mower. Tr. 82:8-13. I do not credit this testimony.

58. Since that date, Halewijn has slowly taken the initiative to make other improvements to the property. Tr. 82:14-18.

59. Persichilli testified that "through the summer in August [2019] there were a couple other times where [Halewijn] came for hours at a time and mowed and cleaned up the lot," and that "on August 25th . . . he brought the trailer onto the site with the bath tub and the lawn furniture and all those items." Tr. 115:9-14; view. I credit this testimony.

60. Halewijn testified that even if he was not on the property enjoying his plants, that the RV would need to be there for horticultural purposes "for water, for cleanliness. . . from protection from frost in the spring." Tr. 91:10-11. I do not credit this testimony.

Discussion

An appeal of a zoning board of appeals decision is de novo; that is, in an action under § 17, "[t]he 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 such board . . . or make such other decree as justice and equity may require." G.L. c. 40A, § 17. Section 17 review of a local board's decision "involves a 'peculiar' combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009), citing Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558 (1954). The court is obliged to find facts de novo and may not give any weight to those facts found by the local board. G.L. c. 40A, § 17; Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) ("In exercising its power of review, the court must find the facts de novo and give no weight to those the board has found."); Kitras v. Eccher, 21 LCR 565 , 570 (2013) (Piper, J.) (noting the court must "review the factual record without deference to the board's findings."). After finding the facts de novo, the court's "function on appeal [is] to ascertain whether the reasons given by the [board] had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law." Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). The court must give deference to the local board's decision and may only overturn a decision if it is "based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970), citing Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277 (1969); Britton, 59 Mass. App. Ct. at 72; Kitras, 21 LCR at 570.

In its decision, the Board determined that Halewijn did not demonstrate a permitted principal use on the Halewijn property, that without a principal use there cannot be an accessory use, and that even if the RV was accessory, it was still in violation of the Zoning By-law because Halewijn did not have the required special permit to park the RV on the property. Joint Pre-Trial Memo Agreed Facts ¶ 30; Exh. 18. Persichilli asserts that the decision of the Board should be affirmed because it is not based on a legally untenable ground and it is not unreasonable, whimsical, capricious, or arbitrary.

The Zoning By-law prohibits all uses of property in Falmouth that are not expressly allowed by the use regulations in the Zoning By-law. It states, "No building or structure shall be erected, altered or extended and no premises shall be used, except as provided in Articles V through XIII, district use regulations." Exh. 19 § 240-17. Both the LLC property and the Halewijn property are in the RC District. Joint Pre-Trial Memo Agreed Facts ¶ 14. Article V of the Zoning By-law specifies the uses allowed in the RC District. In relevant part, Article V provides that the following uses are permitted as of right as principal uses: one-family detached houses; certain community service uses; and agriculture, horticulture, and floriculture. Exh. 19 §§§ 240-19, 240-20, 240-21. The term "accessory use" is defined in the Zoning By-law as follows:

A use of land or building on the same lot with, and customarily incidental but secondary to, a permitted use except that if more than 30% of the floor area or 50% of the lot area is occupies by such use, it shall no longer be considered 'accessory.' Exh. 19 § 240-13. In relevant part, Article V of the Zoning By-law provides that the following accessory uses are customarily incidental to the foregoing principal uses, and may be allowed as accessory uses by special permit: parking of any motor home, travel trailer, or fifth-wheel trailer not located within the minimum front, side (parking) or rear yard setback requirements; and parking any commercially registered vehicle with a gross vehicle weight of more than 13,000 pounds. Exh. 19 §§§ 240-22, 240-23(G)(4)(a), 240-23(G)(4)(b).

Read together, these provisions provide that the parking and/or storing of motor vehicles is not allowed as an as-of-right use in an RC District as a principal use, but is allowed as an accessory use only under § 240-22. Furthermore, the parking of a motor home may be allowed as an accessory use only by special permit and only when not parked within required minimum setbacks. §§ 240-22, 240-23(G)(4)(a), 240-23(G)(4)(b).

The questions in this case, then, are: what principal use is Halewijn using the Halewijn property for, what are his accessory uses, and whether his primary or accessory use is allowed under the Zoning By-law. A primary or principal "use" of a property is an "[a]ctivity of a certain magnitude [that] is no longer incidental." Garabedian v. Westland, 59 Mass. App. Ct. 427 , 436 (2003). "An accessory use is a use incidental to the primary use of the property," and generally "must be both incidental and customary." DiGiovanni v. Pope, 20 LCR 44 , 51 (2012) (Piper, J.). The "degree, intensity, frequency, and dominant purpose of the challenged use . . . will characterize it as either accessory or not." Id. at 52. The term "accessory use" is defined in the Falmouth Zoning By-law as "customarily incidental but secondary to, a permitted use . . ." Exh. 19 § 240-13. This means that accessory uses "must not be [a] primary use of the property but rather one which is subordinate and minor in significance." Town of Harvard v. Maxant, 360 Mass. 432 , 438 (1971). The accessory use must also be related to the primary use. Id.

Testimony at trial, photographic evidence, and the view of the property itself indicates that Halewijn primarily uses the Halewijn property for vehicle storage while he spends his summers at Martha's Vineyard. During trial, Persichilli testified that when he first met Halewijn, Halewijn told him that "he lives in Martha's Vineyard in the summer," and that he is "going to use [the Halewijn property] to park his vehicle while he's in Martha's Vineyard." Tr. 101:6-8. Halewijn also testified that he probably had this conversation about parking cars and vehicles on 34 Oakwood with Persichilli shortly after he purchased the property, and that it was consistent with his intentions for the property. Tr. 54:24-25, 55:3-6, 55:9-10. Halewijn testified that he owns around 15 vehicles, and that he envisions storing "maybe seven" vehicles on the property at any given time in the future, "including a boat and a trailer." Tr. 27:7-10. Halewijn also testified that he uses the property for personal purposes, including to conveniently get back and forth to his properties on Martha's Vineyard. He testified that during the peak of summer, it can be very difficult to get a vehicle on and off the island. Tr. 51:9-21. Halewijn testified that storing vehicles on the property protects him from evacuation situations from the island, and saves him a 25-mile round trip to the ferry. Tr. 36:23-25, 37:2-3. Halewijn opined that storing his RV at the Halewijn property saves him $175 one way and provides a convenient, two-minute walk from the lot to the ferry. Tr. 37:4-8, 52:4-5, 52:22-25. He is able to park his vehicle at the Halewijn property, walk two minutes down to the lot at Palmer Avenue, take a free bus down to the Woods Hole terminal, and take the ferry to the island. Tr. 53:14-23. Halewijn's principal use of the Halewijn property is to park and store motor vehicles. Article V of the Zoning By-law specifies that principal uses permitted in the RC District include one-family detached houses; certain community service uses; and agriculture, horticulture, and floriculture. Exh. 19 §§§ 240-19, 240-20, 240-21. Storing vehicles is not a principal use permitted in the RC District in which the Halewijn property lies. Thus, while the Board was not exactly correct in finding that there was no principal use of the Halewijn property, it was correct that Halewijn's vehicle storage is not allowed as a principal use and could not be an accessory use: a use that is principal cannot also be treated as accessory. Halewijn's storage of motor vehicles on the Halewijn property is an impermissible principal use. It is not an accessory use. In short, the Board correctly determined that "the parking and storing of motor vehicles is not specified as an allowed principal use in the Residential C District and therefore the parking and storing of motor vehicles is not allowed as a stand-alone use and such use is prohibited on the subject property under Section 240-17 of the Code of Falmouth." Joint Pre-Trial Memo Agreed Facts ¶ 30; Exh. 18.

At trial, Halewijn attempted to circumvent the Board's finding by asserting that he principally uses the property for agriculture, horticulture, and/or floriculture, which is a permitted principal use under the Zoning By-law. The Zoning By-law defines agriculture as "[i]nclud[ing] farming in all its branches, generally the cultivation and tillage of the soil, dairying, the production cultivation, growing and harvesting of any agricultural, floricultural, viticultural or horticultural commodities, and shellfishing, including preparations and delivery to storage or to market or to carriers for transportation to market." Exh. 19 § 240-13. By Halewijn's own testimony, Persichilli's observations, which I credit, and my observations on the view, I find that Halewijn's activities on his property hardly rise to the level of "agriculture" as defined in the Zoning By-law. Halewijn did not demonstrate the kind of daily care necessary for a full agricultural use. For example, if Halewijn lives in Martha's Vineyard all summer and wanted to grow a successful garden at the Halewijn property, he would have to take two ferry or airplane rides per day, back and forth to the property, because the only way to access the island of Martha's Vineyard is via air or water. Tr. 50:22-24, 51:9-21. Halewijn provided no testimony that this was his practice. In fact, Halewijn notified the Board on November 22, 2018 that he spent "less than 20 or even 10 hours total occupying the property since ownership [in 2017]." Exh. 17, page 74. On May 24, 2018, Halewijn emailed the Assistant Zoning Enforcement Officer of the Town of Falmouth that he uses the Halewijn property "as a place to relax and enjoy nature from time to time," and to "park a vehicle or few as needed from time to time." Exh. 13. He never mentioned agricultural, horticultural, or floricultural use of property in this email to the Assistant Zoning Enforcement Officer, and "time to time" does not support that daily and consistent commitment required to engage successfully in agricultural, horticultural, or floricultural pursuits.

The evidence shows that Halewijn's agricultural claims are dubious at best. The Halewijn property is accessed by an easement over the LLC property and is not serviced with any utilities (water, electric, sewer, etc.). Joint Pre-Trial Memo Agreed Facts ¶¶ 12, 13. Without a water source, "cultivation and tillage of the soil" and "growing and harvesting" is difficult, if not impossible. While Halewijn testified that he uses the RV for his plants to transport water from gas stations, to wash his hands after dealing with dirt, as protection from mosquitos, weather, and as "general protection," and that the RV would be convenient to "preserve plantings," in fact the RV was stored on the property beginning in May of 2018, and remained on the property until June of 2019 without being moved at all. Tr. 33:1-20, 35:18-19, 36:1-3, 41:7-9. After being briefly moved in June of 2019, the RV was returned to the property for storage. Joint Pre-Trial Memo Agreed Facts ¶ 23; Tr. 58:3-6, 60:3-4, 60:12-16. In 2017, Halewijn used a green van on and off for a few hours/days, but predominantly parked it at the property. Joint Pre-Trial Memo Agreed Facts ¶ 22; Tr. 56:3-16, 102:3-25. This evidence supports my finding that the RV was not being used to water plants because to do so, the RV would have to leave the property daily to travel to a water source, and return to the property to water any plants. It also supports a finding that the RV was not used in 2017 at all to support any sort of agricultural activity, because the green van was the primary vehicle being stored on the property.

The evidence is, and I find, that no agricultural activity occurred on the Halewijn property during the summer of 2017. Halewijn testified that he planted a lilac bush when he purchased the property in 2017. Tr. 71:1-21. He testified that he envisioned "a natural fence" of hedges around the property, and alleges that his lack of any other agricultural activity in 2017 was to "let it grow to see what's there." Tr. 29:17-18, 30:19-20. He testified that he "wanted to see what's already growing there previous before [he] would make any alterations." Tr. 71:11- 13. I credit Persichilli's testimony that he did not see any agricultural activity or gardening on the Halewijn property during the summer of 2017. Tr. 103:12-14. Halewijn's testimony that, even if he was not on the property enjoying his plants, the RV would need to be there for horticultural purposes "for water, for cleanliness. . . from protection from frost in the spring," rings hollow, given that the RV was not stored on the property in 2017. Tr. 91:10-11. The evidence is, and I find, that no agricultural activity occurred on the Halewijn property during the summer of 2018, either. I credit Persichilli's testimony that during the spring and summer of 2018, he did not observe any maintenance of any kind done on the property, "nor did [he] see Mr. Halewijn staying on the lot other than to pick up a car and come here." Tr. 104:17-25. Persichilli testified that during the summer of 2018, "[t]here was nothing done to the lot. There was no maintenance." Tr. 105:18-22. Photographs taken before the enforcement action commenced support Persichilli's testimony, as they show Halewijn's vehicles parked on the property, and overgrown vegetation. Exh. 8, 9, 10; Tr. 55:22-25, 57:24-25, 58:1-9. The appearance of the Halewijn property also shows that it was not principally put to an agricultural use. The parties were permitted to enter the property on June 25, 2019 to take pictures. Tr. 78:1-7. Many of the plants on the property appear to be small and recently planted. Tr. 78:13-25, 79:1-25, 80:1-18; Exh. 20.9, 20.10, 20.11, 20.12, 20.13, 20.14, 20.15; view. Although Halewijn testified that he transplanted pine trees from Maine and that he has apple and pear trees in pots, and that he planted tiny lilacs, blueberries, and huckleberries and a smoke tree, Tr. 31:6-7, 31:14-15, 31:19-20, the Halewijn property, as of spring 2019, contained many weeds and very few plants. Exh. 20.1, 20.7, 20.8, 20.11, 20.12; view. Notwithstanding his testimony that he has "enjoyed horticulture all [his] life," that he studied it in high school, and that his mother was very interested in gardening, Tr. 28:5-8, 16-20, during trial, Halewijn exhibited difficulty in identifying the plants and trees on his own property. Tr. 78:18-23, 79:20-25, 80:11- 16.

After it was announced at the July 23, 2019 pretrial conference that a view would be taken, Halewijn returned to the Halewijn property and mowed it for the first time. Tr. 81:15-25, 82:1-8, 115:5-8. Halewijn testified that he did not mow the lawn until July 2019 because he was waiting for a sale on a lawn mower. Tr. 82:8-13. It is hard to credit that no lawn mower went on sale from 2017 when Halewijn purchased the property until July 2019 when he purchased one. Since July 23, 2019, Halewijn has slowly taken the initiative to make other improvements to the property. Tr. 82:14-18. Persichilli testified that "through the summer in August there were a couple other times where [Halewijn] came for hours at a time and mowed and cleaned up the lot," and that "on August 25th . . . he brought the trailer onto the site with the bath tub and the lawn furniture and all those items." Tr. 115:9-14; view. These halting activities are not consistent with a principal agricultural use. In short, I find that Halewijn's activities do not constitute agricultural, horticultural, or floricultural use of the Halewijn property as defined in the Zoning By-law.

Even if Halewijn's use of his property were deemed a sufficient principal agricultural use, the storage of an RV on the Halewijn property is not "incidental and customary" to raising a garden. DiGiovanni, 20 LCR at 51. Furthermore, even if it were an accessory use, the parking of the motor home still violates the Zoning By-law because it is an accessory use that requires a special permit. Exh. 19 § 240-23(G)(4)(a). The term "motor home" is defined in the Zoning By law as, "[a]n automotive vehicle built on a truck or bus chassis and equipped as a self-contained traveling home." Exh. 19 § 240-13. Halewijn's RV meets this definition of a motor home. Halewijn does not have a special permit to park the RV. Tr. 67:19-22. The Board correctly determined that the motor home parked on the property violates zoning because it is not accessory to an allowed principal use and because it lacks the requisite special permit. Since the parking of a motor home is specifically designated as an accessory use by special permit only, it follows that the parking of a motor home could not have been intended to fall within the more general accessory uses that are customarily incidental to the permitted principal uses in the RC District allowed by § 240-33 of the Zoning By-law. Miles-Matthias v. Zoning Bd. of Appeals of Seekonk, 84 Mass. App. Ct. 778 , 789 (2014), citing Harborview Residents' Comm., Inc. v. Quincy Hous. Auth., 368 Mass. 425 , 432 (1975) ("canon of construction 'inclusio unius est exclusio alterius' provides that "statutory expression of one thing is an implied exclusion of other things omitted from the statute.").

In short, the evidence is, and I find, that Halewijn's principal use of the Halewijn property at the time this case was brought was to store his vehicles while living at Martha's Vineyard during the summer, not to engage in an agricultural, horticultural, or floricultural use of the property. Even now, his alleged agricultural use does not rise to the level necessary under the Zoning By-law's definition of such a use, and his level of planting does not rise to the level required to deem it a principal use of the property. The "degree" and "intensity" of his agricultural use confirms that it is minor. On the other hand, his consistent and uninterrupted vehicle storage since purchasing the property in 2017 does rise to a level that is not incidental but is principal. Vehicle storage is not permitted as a primary use under Article V of the Zoning By law. Exh. 19 §§§ 240-19, 240-20, 240-21. The Board correctly found that "the Building Commissioner erred in his determination." Exh. 18.

Conclusion

For the foregoing reasons, based on the evidence as I have found it de novo, and having in mind the level of deference due to the Board, I find and rule that the Board's decision was not arbitrary, capricious, or based on legally untenable grounds. Judgment shall enter affirming the decision and dismissing the complaint with prejudice.

Judgment Accordingly.