Dowd v. Board of Appeals of Dover

• Decision Date: 24 February 1977
• Citation: 5 Mass.App.Ct. 148,360 N.E.2d 640
• Parties: Dennis M. DOWD v. BOARD OF APPEALS OF DOVER (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 640

360 N.E.2d 640

5 Mass.App.Ct. 148

Dennis M. DOWD v. BOARD OF APPEALS OF DOVER (and a companion case

¹

).

Appeals Court of Massachusetts, Norfolk.

Argued March 9, 1976.

Decided Feb. 24, 1977.

Reginald H. Howe, Boston (A. Franklin Burgess, Jr., Boston, with him), for the Board of Appeals of Dover and another.

Daniel H. Kelleher, Boston (Alphonse W. Query, Jr., Westwood, with him), for Dennis M. Dowd and another.

Before HALE, C.J., and GOODMAN and ARMSTRONG, JJ.

GOODMAN, Justice.

These are separate appeals by the board of appeals of Dover (board) and by the town of Dover (town), respectively, in two cases tried together in the Superior Court. The trial judge made findings and rulings in each case and entered separate judgments. The evidence is reported.

Both cases concern, primarily, the construction and application of the provisions of Section II of the zoning by-law of the town of Dover, entitled 'RESIDENCE DISTRICT USES' and charaterized in the first sentence as follows: 'The 'r'--Residence District is intended for single-family homes with not more than one dwelling and customary accessory uses upon one lot.' Among the uses expressly permitted as of right is '5. Farm and Garden.' A special permit (G.L. c. 40A, § 4) ² is required for use as '9. . . . (c) Greenhouse or nursery.' One of the cases is an appeal under G.L. c. 40A, $ 21, brought by Dowd on March 29, 1974, from the decision of the board denying him a special permit for the operation of a nursery on about fourteen acres of land (locus) which he owns and which is in a residential district. The locus is part of a twenty-two acre parcel situated on the northeasterly side of Springdale Avenue in Dover; the remaining acreage is in a conservancy district and is not involved in this case. The judgment from which the board appeals annulled the board's decision.

Subsequent to the commencement of that action, the town, on September 20, 1974, brought an action against Dowd under G.L. c. 40A, $ 22 (the enforcement case), to enjoin him and Dowd's Nurseries, Inc., subsequently added as a party, from operating a nursery on the locus and (by amendment) on other premises at 22 Main Street which were owned or controlled by Dowd. The amended complaint also asked for other relief not here material. The towm appeals from a judgment giving only partial relief. We discuss these cases in the order discussed in the briefs of the parties.

1. The enforcement case by the town. The trial judge found that Dowd and Dowd's Nurseries, Unc., of which Dowd is the sole strockholder, are engaged 'in two related endeavors which are at issue herein, first, a nursery and, secondly, a landscape contracting business. The nursery stock is situated at (the locus) . . .,' where '(t)he defendants have for serveral months grown and stored ornamental trees and shrubs . . .. On occasion nursery stock has been bought from other nurseries and stored there overnight. . . . A farm tractor and garden tractor have been used on this property in connection with the nursery.' The judge further found that Dowd maintained an office in a barn on the premises at 22 Main Street, at which his residence is located. From this office he conducted a wholesale landscaping business which 'requires the transport of nursery stock to various job sites in southern New Hampshire, Massachusetts and Rhode Island. Most of these jobs are for institutional customers. On occasion customers have come to Springdale Avenue (the locus) to select stock.'

The judge ruled that the landscape contracting business was not a permitted use; but he also ruled that there was no 'rational basis for the distinction made in the Dover zoning by-law between farms and gardens which are a permitted use in a residential district and nurseries which require a special permit.' Accordingly, he enjoined Dowd and Dowd's Nurseries, inc., the defendants, only 'from using any part of premises at 22 Main St. or 79 Springdale Ave. Dover for or in connection with a landscape contracting business.' The twon contends that it is entitled to an injunction prohibiting the defendants from using either of those premises as a nursery. The defendants ask that the judgment be affirmed; they do not press their cross-appeals and raise no issue as to the restraints otherwise contained in the judgment. Thus, the only issue in the enforcement case is whether the town could legally exclude nurseries (except by special permit) from a provision permitting farms as of right. We think the distinction in this by-law is valid.

It may well be, as the defendants argue, that in some contexts the word 'farm' is broad enough to include a nursery. Needham v. Winslow Nurseries, Inc. 330 Mass 95, 100, 111 N.E.2d 453 (1953). . cf. also Piekos v. bachand, 333 Mass. 211, 212--213, 129 N.E.2d 890 (1955). See Anderson, American Law of Zoning, § 15.43 (2d ed. 1976). But we are not here concerned with any question of interpreting the word 'farm.' The exclusion in the by-law of nurseries as a use permitted as of right is clear. Our task is to determine whether the defendants have been able to demonstrate that this distinction between a 'farm,' permitted as of right, and a 'nursery,' requiring a special permit, 'cannot be supported upon any rational basis of fact that reasonably can be conceived to sustain it . . ..' Druzik v. Board of Health of Haverhill, 324 Mass. 129, 138, 85 N.E.2d 232, 237 (1949). Commonwealth v. Henry's Drywall Co. Inc., 366 Mass. 539, 541, 320 N.E.2d 911 (1974).

There is little evience of the character of the farming that has been conducted in the town, but the evidence that there is only one 'working farm' in Dover (and the board's statement in its supplementary decision that '(t)here are no working farms adjacent to or nearby the locus') suggests that such farming as has generally been conducted in Dover may not be incompatible with development as a residential area. On the other hand, a nursery might have been thought by the town to be a commercial operation sufficiently different in kind from farming to justify difference in treatment. In Anderson, American Law of Zoning, § 15.43, p. 669 (2d ed. 1976), it is pointed out that a number of jurisdictions have made a judgment of this kind in their zoning ordinances; it is noted that there is a 'type of ordinance (which) treats green-houses and nurseries as commercial uses, confining them to commercial districts, orpermitting them in residential districts subject to the issuance of a special permit' (footnotes omitted).

Nurseries have also been viewed as commercial operations in other contexts. In Miethke v. Pierce County, 173 Wash. 381, 388--389, 23 P.2d 405, 408 (1933), cited in the nursery stock could be 'assessed as merchandise nursery stock could be 'assessed as merchandise the same as the stocks of merchants which are assessed annually . . .. The Legislature had the undoubted right and power to define nursery stocks as merchandise and to exempt growing crops on cultivated lands.' See Amarillo v. Love, 356 S.W.2d 325, 328 (Texas Civ.App.1962); Jackson & Perkins Co. v. Stanislaus County Bd. of Supervisors, 168 Cal.App.2d 559, 563, 335 P.2d 976 (1959), citing Story v. Christin, 14 Cal.2d 592, 595--596, 95 P.2d 925 (1939). Where purely zoning considerations are involved the town has a wide latitude in differentiating between uses. See Dobbs v. Board of Appeals of Northampton, 339 Mass. 684, 688, 162 N.E.2d 32 (1959). The defendants have not sustained the heavy burden of showing that these two different activities must be treated in exactly the same way.

2. Dowd's appeal under G.L. c. 40A, § 21. Dowd's appeal from the decision of the board denying his application for a special permit to operate a nursery required the Superior Court judge to examine the board's decision and, upon a hearing de novo, to determine whether Dowd had demonstrated that the decision was based 'on a 'legally untenable ground, or (was) unreasonable, whimsical, capricious or arbitrary. '' S. Volpe & Co. Inc. v. Board of Appeals of Wareham, --- Mass.App. ---, ---, ^a 348 N.E.2d 807, 810 (1976), and cases cited. After a hearing and taking a view, the judge made findings and ordered the board to amplify its decision by stating (among other things) '(1) in detail and specifically the reasons for which the permit was denied . . ..' This was well within the judge's discretion. Roberts-Haverhill Associates v. City Council of Haverhill, --- Mass.App. ---, ---, ^b 319 N.E.2d 916 (1974). See M. DeMatteo Constr. co. v. Board of Appeals of Hingham, --- Mass. App. ---, ---, ^c 334 N.E.2d 51 (1975). The judge found indications in the board's decision that its reasons for denying the special permit might have been based on objections, many of which were inapposite, set out in a petition by residents who lived some distance from the locus. The judge was also concerned 'to what extent the previous irritant of the Dowd operation of a nursery at 22 Main Street was injected into the proceedings of the Board of Appeals and constituted a basis for the Board's decision.' ³

The board filed a supplementary decision; the judge then filed supplementary findings, rulings, and an order for judgment and annulled the decision of the board.

The judge found in his original findings and order: 'Any uses Dowd has made or might make on the central portion ⁴ of the property, were a special permit granted, would be completely screened from sight from abutting land by reason of the growth of trees which surround the central portion of the locus and the slope on the northwest side. The only clue the neighbors might have that a nursery operation was being conducted on the property would be any inference that could be drawn from the vehicles entering or leaving from the driveway where it joins Springdale Avenue.' With reference to the vehicles, the court went on to find 'that the coming and going of all these vehicles would create no traffic problems or hazards,...