Fordham v. Butera
Fordham v. Butera
Opinion of the Court
Upon the plaintiff Laurence S. Fordham’s appeal of a 2003 decision of the zoning board of appeals of Weston (board) granting a storage permit to the defendants Michael and Janet Butera (Buteras) pursuant to § V.B.5 of the
Background. The parties own abutting properties on South Avenue in Weston. The Weston by-law, pursuant to § V.A.2, prohibits use variances. The Buteras have a landscaping (including snow plowing) business which, the board found, largely, but not exclusively, serves residents of Weston. In connection with their business they use, among other things, trucks, snow plows, and mechanical landscaping equipment. On October 6, 1995, the board, pursuant to § V.B.5 of the by-law, granted the Buteras’ petition for a permit (1995 permit) “to store [a] landscap[ing] trailer, 1 truck and tools in bam,[
Section V.B.5 of the by-law provides, in relevant part, as follows:
“Uses Allowed By Permit
Storage for Commercial and Business Activities: In Single Family Residence Districts the Permit Granting Authority may issue Permits for the storage of vehicles, materials, supplies and equipment in connection with commercial or business activities principally carried on in the Town and providing services essential to the uses of premises permitted in the residence districts . . . .”
In May, 2003, Fordham sought enforcement of the terms of the 1995 permit from the Weston building inspector (inspector), claiming that the Buteras were in violation of the permit. On June 2, 2003, the inspector directed the Buteras to remove “rock, wood chips, bark mulch and cut wood” from their property (locus) because the storage of those materials was not “technically allowed” under the 1995 permit. The Buteras then filed an appeal with the board from the inspector’s order and simultaneously requested an amendment to their 1995 permit. Following a hearing in July, 2003, the board issued a decision, by unanimous vote, amending the 1995 permit to allow the Buteras:
“to store on [locus] the following vehicles, materials, supplies and equipment in order to conduct their landscaping (including snowplowing) business: two four-cylinder trucks . . . ; two pick-up trucks (one primarily for the Buteras’ personal use); one cm- (primarily for personal use); two trailers for use in their landscaping business; two snow plows; snow tires; one small Bobcat; landscaping products such as fertilizer, lime, grub control and other similar lawn treatment products; peat*909 moss, bark mulch, loam, stones (primarily for personal use), firewood (primarily for personal use); lawnmowers, grass catchers (for the lawnmowers), leaf blowers, leaf vacuums; grass trimmers, hedge trimmers, a sharpening wheel; and rakes, shovels, picks, grub hoes and pitch forks.”4
Fordham appealed the permit amendment to the Land Court pursuant to G. L. c. 40A, § 17, and challenged the validity of § V.B.5 of the by-law pursuant to G. L. c. 185, § 1 (j V2).
The Buteras note that the by-law benefits from a presumption of validity, and argue that the by-law provides ample standards for the § V.B.5 permit. Fordham argues that the judge correctly annulled the permit because § V.B.5 of the by-law lacks required standards.
Discussion. Authority of a board of appeals “to act on applications for special permits for exceptions to the zoning by-law cannot leave the decision subject to the ‘untrammeled discretion’ or ‘unbridled fiat’ of the board.” MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 637-638 (1970), quoting from Building Commr. of Medford v. C. & H. Co., 319 Mass. 273, 281 (1946). We consider this fundamental rule of fairness equally applicable to a by-law provision such as § V.B.5, even if, as the Buteras urge, the other requirements for a § V.B.5 permit are less stringent than those for a special permit under the by-law.
There is no merit to the Buteras’ arguments that § I.B of the by-law, entitled “Prohibited Uses” (reproduced in the margin),
For all of the above-stated reasons, we agree with the judge that § V.B.5 of the by-law, whether considered a zoning provision, or a general by-law provision, lacks sufficient standards to fairly guide the board’s exercise of authority.
Judgment affirmed.
The effect of the judge’s decision was to limit the Buteras’ use of their property (locus) to the terms of a storage permit issued to them by the board in 1995 (1995 permit).
Prior to the 1995 permit, on December 2, 1991, the board granted a variance permitting the Buteras to construct the bam on the locus. At the hearing on the variance application, the Buteras stated that “the bam was for personal use for the storage of two to three cars, a boat trailer, and lawn mowing equipment” and that the bam “would have no business use.” Apparently, there was no appeal taken from the 1991 variance, or from the 1995 storage permit.
The board members unanimously agreed with the building inspector’s determination that the Buteras were in violation of their 1995 permit, at least with respect to some of the materials cited. However, the board took no action on the Buteras’ appeal of the building inspector’s order, considering that order mooted by the board’s decision amending the 1995 permit.
General Laws c. 185, § 1 (j V2), grants the Land Court exclusive original jurisdiction of complaints under G. L. c. 240, § 14A, “to determine the validity and extent of municipal zoning ordinances, by-laws and regulations.”
Given the result we reach, we need not address the Buteras’ and Fordham’s other arguments.
If, in the alternative, we were to construe § V.B.5 of the by-law as a special permit under G. L. c. 40A, § 9, the by-law would fail under the statutory requirement
Section I.B of the by-law provides:
“Notwithstanding any other provision of this Zoning By-Law, any building or structure or any use of any building, structure or premises which is injurious, obnoxious, offensive, dangerous, or a nuisance to the community or to the neighborhood through noise, vibration, concussion, odors, fumes, smoke, gases, dust, harmful fluids or substances, danger of fire or explosion, or other objectionable feature detrimental to the community or neighborhood health, safety, convenience, morals or welfare, is prohibited.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.