Halewijn v. Zoning Bd. of Appeals of Falmouth

• Decision Date: 25 January 2022
• Docket Number: 20-P-1252
• Citation: 180 N.E.3d 1038 (Table)
• Parties: Terrell HALEWIJN v. ZONING BOARD OF APPEALS OF FALMOUTH & another.
• Court: Appeals Court of Massachusetts

180 N.E.3d 1038 (Table)

Terrell HALEWIJN

v.ZONING BOARD OF APPEALS OF FALMOUTH & another.¹

20-P-1252

Appeals Court of Massachusetts.

Entered: January 25, 2022.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2017 Terrell Halewijn purchased a small vacant lot of land (lot) in Falmouth (town) at an online auction, sight unseen. The lot was .22 acres, landlocked, could only be accessed by an easement over an abutting property owned by Latitude 41 North, LLC (Latitude), had no utilities, and lacked enough frontage to build a residence. Despite these facts, Halewijn was content with his purchase due to the lot's location, which is a two-minute walk from a parking lot with a shuttle bus to the ferry to Martha's Vineyard, where Halewijn owned two properties.

Halewijn began parking a recreational vehicle (RV), a green van, and other vehicles on his lot and taking the free shuttle bus to the ferry. Latitude filed a request for zoning enforcement with the town building commissioner to prevent the parking of vehicles on the lot. The building commissioner found no violation. However, on appeal, the zoning board of appeals (board) found that under the town zoning bylaw, Halewijn could not store vehicles on the lot and ordered him to remove all vehicles, including the RV. More specifically, the board determined that parking and storing vehicles was not a permitted principal use in the residential district where the lot was located. The board further found that while parking may be a proper accessory use in some circumstances, such circumstances were not present in this case.

Halewijn appealed to the Land Court under G. L. c. 40A, § 17, contesting the board's decision and arguing that, among other things, the parking of vehicles on the lot was accessory to agricultural use, which he claimed was his primary use of the lot. After a trial, the judge found that Halewijn "fell far short" of showing that the primary use of the lot was agricultural and affirmed the decision of the board. Halewijn appeals from the judgment, claiming the trial judge erred in making this finding. We affirm.

Discussion. On appeal from a trial judge's review of a municipal board's decision under G. L. c. 40A, the judge's findings of fact will not be set aside unless they are "clearly erroneous."³ Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 87 Mass. App. Ct. 871, 873 (2015). DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339, 343 (1985). We review the judge's determinations of law, including interpretations of zoning ordinances de novo but we remain "highly deferential" to the board's interpretation of its own ordinances. Buccaneer Dev., Inc., supra, quoting Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725, 728-729 (2013). The decision of the board can only be disturbed if it is based "on a legally untenable ground" or is "unreasonable, whimsical, capricious or arbitrary." Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483, 486 (1979), quoting Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277-278 (1969).

Here, the facts found by the trial judge were amply supported by the record. In a thoughtful twenty-one page decision, the judge relied on the undisputed facts, weighed the credibility of the witnesses at trial, factored in his own observations based on a view of the lot, and considered the exhibits to find that Halewijn's primary use of the lot was not agricultural but rather was to store his RV and other vehicles. Because the storage of his vehicles was the primary use of the lot, for which it was not properly zoned, the judge affirmed the decision of the board. We see no error.

Both Latitude's and Halewijn's lots were located in a "Single Residence District C" zoning district. According to Article V of the town zoning bylaw (bylaw), the only permitted principal uses for property in single residence districts are for one-family detached houses; certain community services; agriculture, horticulture, and floriculture;⁴ and piers, floats, and docks. If the primary use of a property falls into one of these permitted categories, the bylaw allows for incidental accessory uses.⁵ The board may allow certain other accessory uses by special permit. The parking of an RV within certain setback requirements is one such use that can be allowed by special permit if it qualifies as an accessory use.

As mentioned above, the judge concluded that Halewijn's primary use of the lot was parking...