Town of Harvard v. Maxant

• Decision Date: 09 November 1971
• Citation: 275 N.E.2d 347,360 Mass. 432
• Parties: TOWN OF HARVARD v. William MAXANT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 347

275 N.E.2d 347

360 Mass. 432

TOWN OF HARVARD v. William MAXANT.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 16, 1971.

Decided Nov. 9, 1971.

Morris N. Gould, Clinton (C. A. Peairs, Worcester, with him), for defendant.

Morton C. Jaquith, Town Counsel, for plaintiff.

Before TAURO, C.J., and CUTTER, QUIRICO, and HENNESSEY, JJ.

QUIRICO, Justice.

This is a bill in equity brought by the town of Harvard (town) against William Maxant (defendant) to enjoin him from using or permitting the use of land owned by him for the landing or taking off of aircraft, which use is alleged to be in violation of the town's zoning by-law. The defendant contends that this use of his property is lawful either as a permitted primary use or as accessory to a permitted use. The case is before us on the defendant's appeal from a final decree in favor of the town.

We have a report of all the evidence presented at the trial. It consists principally of oral testimony. The trial judge was not requested to file a report of material facts found by him. G.L. c. 214, § 23. However, he voluntarily filed a written decision which included detailed findings of facts. In this situation we 'examine the evidence and decide the case according to our own judgment, accepting as true the findings of the trial judge, whether based wholly or partly upon oral evidence, unless they are shown to be plainly wrong, and finding for ourselves such other and additional facts as we deem to be justified by the evidence.' Sulmonetti v. Hayes, 347 Mass. 390, 391--392, 198 N.E.2d 297, 298. Accordingly, we summarize the facts as found by us and by the trial judge.

Prior to October 21, 1968, ¹ the defendant spoke to the chairman of the town's board of selectmen about the proposed use by him and his son of two parcels of land in the town for an aircraft landing strip. One of the parcels was then owned by the defendant's son and it consisted of 14 acres. The other was an adjoining parcel consisting of 20.47 acres. The selectmen discussed the matter with the town counsel who gave them a written opinion on October 24, 1968, that the proposed use was not permitted by the town's zoning by-law (by-law). On October 28, 1968, the selection sent the defendant a copy of the opinion letter. On November 5, 1968, the defendant wrote the selectmen informing them that he had purchased the 20.47 acre parcel and that he wanted to make the announcement that he and his son would use a part of the parcel as 'a personal landing strip' for landings and takeoffs by his and his son's personal planes. The defendant acquired title to the 20.47 acre parcel by a deed dated December 17, 1968, and recorded on December 30, 1968.

The defendant never applied for or obtained any permit from the town to use the property as a private landing field. He was not required to obtain any permit for the landing field from the Massachusetts Aeronautics Commission, but he was required to notify the Commission in writing that he was constructing or maintaining the field. G.L. c. 90, § 39B. ² He gave such notice not later than January 10, 1969.

During the ten years before the defendant purchased his land, about fifteen acres of it had been used by a tenant for growing corn in the area now occupied by the defendant's airstrip. About one acre of the land contained apple trees. After the defendant purchased the land, he did some clearing, planting of clover and mowing in the area where the airstrip is located. He also placed some beehives in three places on the property. There was no building on the property when the defendant purchased it, but prior to the trial in the Superior Court he erected a structure which he used for storing agricultural equipment. His building permit application described this structure simply as a 'storage building,' but the defendant hoped to use it for storing his aircraft in winter.

The airstrip has been used for only six landings and takeoffs. Three were made by the defendant and three were made by his son, each piloting his own single engine plane. These landings and takeoffs involved no extraordinary noise, and neither caused nor resulted in any smoke, odor, fumes or mechanical disturbance. The defendant used the airstrip for his personal pleasure and recreation, and intended to continue to use it for that purpose. He and his son lived about five miles from the airstrip, the defendant in the town of Harvard, and his son in Ayer.

The by-law, at all times material to this case, divides the town into five types of districts: Agricultural-Residential (AR), Business, Commercial, Commercial-Industrial, and Watershed Protection and Floodplain. The defendant's 20.47 acre parcel is in an AR district. The by-law prohibits certain described or specified 'injurious, offensive, or otherwise detrimental' uses in all districts of the town. ³ The list of specified prohibited uses does not include airports, airstrips, landing strips or the storage of aircraft.

The by-law states that premises shall be used only as therein permitted, and that '(a)ny accessory use may accompany the main use.' It defines the word 'accessory' as follows: 'An accessory use or structure is one clearly subordinate to, and customarily incidental to, and located on the same premises with the main use or structure to which it is accessory.' It expressly prescribes and limits the uses which are permitted in each of the five types of zoning districts. Section 5.2 of the by-law provides that the uses permitted as of right in an AR district include one family residences, limited types of home occupations, the renting of rooms to nontransients, various forms of agriculture including housing for farm help and the sale of natural produce of the farm, and certain religious, educational, conservation or municipal uses. Additional limited uses are allowed subject to special permits or other approval required therefor. None of the uses permitted in an AR district, whether as of right or upon special permit or approval, includes airports, airstrips, landing strips or the storage of aircraft. Neither is any of such uses expressly permitted in any of the other four types of districts.

The defendant argues that since a private landing strip does not fall within any of the uses prohibited by § 5.1, it follows that it must therefore be permitted in an AR district, and perhaps in all five of the zoning districts. We do not agree with this oversimplified reading of one section of the by-law without regard to the other sections. There is no requirement that zoning by-laws or ordinances follow any particular pattern or structure. They may take the form of prescribing uses permitted or prescribing uses prohibited, or a combination of the two. The town adopted a by-law which combines the two. It prohibits certain uses from all zoning districts of the town, and it also prescribes and limits the uses permitted in each district. This by-law is 'both permissive and prohibitive in form.' Building Inspector of Chelmsford v. Belleville, 342 Mass. 216, 217, 172 N.E.2d 695, 696. The defendant's use is not made lawful solely because it is not prohibited by § 5.1 of the by-law. It must also be a use which is permitted in an AR district under § 5.2. Considered as the primary use made of the land, the private landing strip does not meet this test.

The defendant next argues that his use of the private landing strip is lawful because it qualifies as 'customarily incidental' to the residential use of the property. If this issue is decided on the record which comes to us from the Superior Court the defendant is barred at the threshold because on that record he made no residential use to which he could claim the private landing strip to be accessory. He gains nothing by resort to the by-law's provision permitting accessory uses since there is no use made of the property except for the landing strip. Village of Old Westbury v. Hoblin, 141 N.Y.S.2d 186 (N.Y.Supr.Ct.). See Adley v. Paier, 148 Conn. 84, 86, 167 A.2d 449; Mahler v. Board of Adjustment of the Borough of Fair Lawn, 94 N.J.Super. 173, 180, 227 A.2d 511, affd. 55 N.J. 1, 258 A.2d 705; Mola v. Reiley, 100 N.J.Super. 343, 348, 241 A.2d 861. Cf. Baddour v. Long Beach, 279 N.Y. 167, 175, 18 N.E.2d 18, app. dism. 308 U.S. 503, 60 S.Ct. 77, 84 L.Ed. 431. For the foregoing reasons, the final decree must be affirmed.

At the argument before this court the defendant offered a document entitled 'Additional Argument Supplementing Brief for Appellant.' stating that since the decision of the case in the Superior Court he 'has applied for and received a building permit and has in fact constructed a permanent residence which he now occupies as his domicile on the 20.47 acre parcel of land in Harvard which is the subject of this proceeding.' The town agreed only that the permit had been issued. The additional facts thus offered cannot be placed before us by the unilateral action of the defendant. Coonce v. Coonce, 356 Mass. 690, 693, 255 N.E.2d 330, and cases cited. However, since the additional facts, it treated as properly before us, would not change the result, and because both sides have argued the question whether the private landing strip would be permitted as accessory to a residential use, we think that by expressing our opinion upon that question we may prevent further litigation between the parties. Wellesley College v. Attorney Gen., 313 Mass. 722, 731, 49 N.E.2d 220, and cases cited. Simeone Stone Corp. v. Board of Appeals of Bourne, 345 Mass. 188, 192, 186 N.E.2d 457.

For the purpose of the present discussion we are assuming that the defendant occupies a residence located on the same premises where the landing strip is located. The only question therefore is whether the use of the landing strip is 'customarily incidental' to the residential use. A review of decisions construing these and similar words will be helpful.

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