59 Mass. App. Ct. 427 | Mass. App. Ct. | 2003
At the center of four actions that were consolidated for trial is a controversy over whether John H. Garabedian could maintain and expand an airplane hangar and a landing strip — facilities he described in a letter as “my private airport” — as an accessory use customarily incidental and subordinate to his residence. The parties also dispute whether G. L. c. 231, § 59H (the “anti-SLAPP” statute), is applicable to Garabedian’s complaint for a declaratory judgment about whether he could bring fill upon his land as matter of right.
1. Facts. We take our facts from the careful and detailed findings of the trial judge. Garabedian, who is in the radio broadcasting business, lives at 24 Fairview Drive, Southborough, a property located in a residential zoning district. He restores and flies classic airplanes as a hobby. Garabedian first acquired a pilot’s license in 1976. He flies about 100 hours per year. Until he built his own airstrip, he most often stored his airplane at, and flew in and out of, the Marlborough Airport, some six miles away from his residence.
In 1984, Garabedian received permission from the Federal Aviation Administration (FAA) to build a private grass airstrip, 1,800 feet long, fifty feet wide, usable between sunrise and sunset only, and only in VFR (visual flight rules) conditions. There would be no lights. With that permission in hand, Garabedian visited with the building inspector of Southborough to
A hangar for his airplanes (by then he owned more than one aircraft) did, however, require a building permit, and Garabedian applied for one on September 11, 1984. “Airplane hangar” was not among the preprinted use boxes on the permit application; upon consultation with the building inspector, Garabedian checked the box marked “other” and wrote “bam.” FAA documents that Garabedian submitted to the building inspector were part of the building permit application.
Garabedian began work on the airstrip in the summer of 1984 and on the bam/hangar in the autumn of 1984. The airstrip was usable in the autumn; the hangar, a metal-clad wood-frame structure, was completed in the spring of 1985. For ten years, Garabedian used his private airport without incident. His collection of planes grew to ten, seven of which he customarily stored in Southborough. During that period he paved the central thirty feet of the airstrip and, with FAA permission, installed low intensity runway lights so that he could land in the evening. The number of flights to and from his Southborough strip did not increase.
At the end of the airstrip the grade dropped sharply. To give himself more “run out” space on landings, Garabedian hired a contractor in August, 1995, to track in fill to even the grade and extend the runway. Eighteen-wheel gravel haulers rambled by, or worse, stacked up along the property of neighbors. The neighbors complained to State and local officials, who required certain equipment repairs and removal of unclean fill, but the authorities did not order the job to stop. One neighbor, Johnston, a party to this case, photographed trackers with a video camera. They in turn attacked him and grabbed his camera. When work resumed at the end of February, 1996, the temperature of the antagonists was markedly higher. Now the neighbors protested vigorously at town hall. On February 28, 1996, the building
In the face of the altercations that had taken place and the cease and desist order of the building inspector, Garabedian on March 15, 1996, brought a complaint for declaratory and injunctive relief regarding whether he could, as he maintained, bring fill onto his land as matter of right; i.e., that no State or local law forbade his so doing. The complaint named as defendants — in addition to the town selectmen, building inspector, and director of public works — the two neighbors, Johnston and Westland, who had challenged his right to bring in fill. Johnston and Westland responded with a special motion to dismiss under the anti-SLAPP
Garabedian also sought review of the building inspector’s cease and desist order from the Southborough board of appeals (board). The board decided on June 19, 1996, in addition to affirming the building inspector’s denial of a permit for Garabedian to build a second hangar, that Garabedian had the right to bring fill onto his property, albeit subject to restrictions that the board established. From those administrative decisions, Garabedian appealed to the Superior Court in a second action, under G. L. c. 40A, § 17. One aspect of the controversy has been disposed of. A second judge of the Superior Court, i.e., not the one who allowed the anti-SLAPP motion in the declaratory judgment action, decided on Garabedian’s summary judgment motion that no by-law of Southborough precluded Garabedian from filling his land. She mled that the town could not conjure a restriction on Garabedian’s right to fill on the basis of their anticipation that he would attempt to make an unlawful use of the re-graded property (i.e., an expanded airstrip with a second hangar). The town officials and Johnston and Westland appealed to this court and we, in an unpublished memorandum and order under our Rule 1:28, affirmed the reasoning and decision of the
That left before a third Superior Court judge the following matters for consolidated trial: (a) Review under G. L. c. 40A, § 17, of whether Garabedian was entitled to a permit to build a second hangar on the ground that, as his growing airplane collection was just a hobby, the new structure, as the first hangar, was an accessory use, i.e., customarily incidental and subordinate to his residence under the town zoning by-law. The trial judge decided the second hangar was beyond customarily incidental use and ruled that the board, in affirming the building inspector’s denial of a permit for the second building, had acted within its authority, (b) Whether the original bam/hangar was an accessory use within the meaning of the by-law. The two neighbors, acting under G. L. c. 40A, § 7, had requested that the building inspector enforce the zoning law and order Garabedian to stop using the first hangar and the airstrip because they were not accessory uses within the meaning of the by-law. The building inspector declined to do so; the board of appeals affirmed; and the neighbors asked for judicial review of that board decision. Again, the trial judge decided the board had acted within its authority, (c) Review of denial of a permit that Garabedian had applied for to build a 104-foot by 48-foot extension to the first hangar. The trial judge affirmed the denial.
2. Dismissal of declaratory judgment complaint under antiSLAPP statute. Opposition activity to Garabedian’s earth moving operations had come from certain of his neighbors, notably Johnston and Westland. They told drivers of trucks bringing in fill that the drivers were engaged in an illegal operation and might be liable for what they were doing. Johnston, a television cameraman, photographed trucks, an act that the grading contractor thought sufficiently hostile and intimidating to warrant reciprocation in the form of beating up Johnston and taking his camera. There was also, ultimately, official action in the form of the building inspector’s cease and desist order.
In that venomous and unstable setting, Garabedian filed his complaint for a declaration, pursuant to G. L. c. 231 A, that he
As noted, a judge of the Superior Court allowed the special motion of Johnston and Westland brought under G. L. c. 231, § 59H, to dismiss the complaint. Some of the challenges thrown up by the defendants Johnston and Westland to Garabedian had the character of “petitioning activity” as that has been described in the anti-SLAPP statute, G. L. c. 231, § 59H, and by decisional law interpreting that statute. They had made representations to town and State officials in hope of obtaining public intervention in Garabedian’s land filling work, they had summoned police, they had leafleted the neighborhood to encourage opposition at public meetings, and they had organized residents to attend public meetings. Other aspects of their intervention, however, were private and lacked the characteristics of petition, namely the harassing of Garabedian’s contractor and the somewhat intrusive surveillance of Garabedian’s activity.
A motion to dismiss under G. L. c. 231, § 59H, lies if the movant shows that the plaintiff’s claims are based on the petitioning activities of the movant alone and have no substantial basis beyond those activities. Duracraft Corp. v. Holmes Prod. Corp., 427 Mass. 156, 167-168 (1998). Baker v. Parsons, 434 Mass. 543, 550 (2001). Petitions, by definition, are addressed to
A complaint for a declaratory judgment is the least aggressive of complaints. Its purpose “is to remove, and to afford relief from, uncertainty and insecurity with respect to right, duties, status and other legal relations.” G. L. c. 231 A, § 9, inserted by St. 1945, c. 582, § 1. See Boston v. Keene Corp., 406 Mass. 301, 304-305 (1989). There was plainly a difference of opinion between Garabedian and certain neighbors about whether he had a right to bring in fill and change the grade on some of his land. With his project begun and under siege, Garabedian was not doomed to proceed at risk of acting in violation of law, becoming obliged to undo work done, or to be liable for damages. He was, under G. L. c. 231 A, § 1, entitled to find out what his rights were. The declaratory judgment action asserted no wrongdoing on the part of the defendants; it asked for no damages.
A third reason to have denied the § 59H motion to dismiss is that such a motion shall not be granted if the nonmoving party shows by a preponderance of evidence that the petitioning activity is “devoid ... of any arguable basis in law” and the moving party’s acts caused “actual injury to the responding party.” G. L. c. 231, § 59H. See Baker v. Parsons, 434 Mass. at 552-555. There was no showing of a basis, in the by-laws of South-borough or elsewhere, to regulate the kind of land filling that Garabedian was carrying on. The board of appeals of Southborough conceded as much in the summary judgment proceedings that resulted in a ruling in Superior Court, affirmed on appeal, that as Garabedian’s land was neither in a flood plain district nor contained a wetland, no statutory prohibition limited Garabedian’s right to place fill on his property to equalize the grade.
3. Whether the second hangar and enlargement of the first hangar were accessory uses within the meaning of the by-law. No provision in the Southborough zoning by-law speaks to the building and use of an airstrip or a hangar for airplanes. The handle in the by-law at which Garabedian grasps is that concerning accessory uses. These facilities, he contends, are accessories to the primary use of his land for a single-family residence. The Superior Court judge concluded that the proposed second hangar, the extension of the first hangar, and the extension of the airstrip did not qualify as accessory uses because those facilities were not customarily incidental in Southborough to the primary allowed use, single-family residence. This is not the first time that Massachusetts courts have had occasion to consider whether a private airstrip and an airplane storage shed,
An incidental use, the court wrote in Maxant, is one that is “dependent on or pertains to the principal or main use.” Id. at 437. By way of illustration, the court recalled that in Pratt v. Building Inspector of Gloucester, 330 Mass. 344, 346-347 (1953), it had decided that a stable for the keeping of two horses for show purposes and as family pets was not commonly to be expected in connection with a single family house, although “[i]f the same question were presented as of the year 1900 . . . it is possible that a different answer would be required.” Id. at 347.
By way of further explication of what “incidental” and “customarily” mean as they bear on the zoning classification of “accessory use,” the court said that “incidental” meant the use was subordinate and minor in significance. Harvard v. Maxant, 360 Mass. at 438. “Incidental” also incorporates the idea of subordinate to the primary use (in this case a dwelling) and in reasonable relation to the primary use. Ibid. See Lawrence v. Zoning Bd. of Appeals of N. Branford, 158 Conn. 509, 512-513 (1969), to which the Maxant court cited extensively. The word also connotes something minor or of lesser importance. Old Colony Council - Boy Scouts of Am. v. Zoning Board of Appeals of Plymouth, 31 Mass. App. Ct. 46, 48 (1991). Cunha v. New Bedford, 47 Mass. App. Ct. 407, 411-412 (1999). By those criteria, a garden shed, a plant conservatory, a garage, a swimming pool, and a tennis court might be examples of accessory uses to a residence. “Customarily” implies a certain commonality of usage, a history of the lesser uses in conjunction with the primary uses. If the usage is rare, it is not customary. Harvard v. Maxant, supra at 439.
An 1,800-foot airstrip and airplane hangar are not minor. The
4. Status of hangar built in 1984. Not until March 11, 1996, did neighbors of Garabedian ask the building inspector to enforce the zoning law (see G. L. c. 40A, § 7) by requiring Garabedian to remove the hangar he had completed in 1985 and had used for the intervening eleven years. The building inspector declined to do so on the ground, as he put it, that the statute of limitations had expired. The board of appeals affirmed that action.
Section 7 of G. L. c. 40A, inserted by St. 1975, c. 808, § 3, provides that “if real property has been improved and used in accordance with the terms of the original building permit issued by a person duly authorized,” no action shall lie to seek “abandonment, limitation or modification of the use allowed” by such a permit, unless commenced within six years of the alleged violation of law. Within a month of filing his building permit application, Garabedian had furnished the building
Garabedian’s neighbors
The trial judge, who found as a fact that the neighbors knew about the use of the structure built from the inception of the process, correctly ruled that the challenge to the first hangar was barred by the permit-related six-year limitations period in G. L. c. 40A, § 7.
5. Status of airstrip constructed in 1984. Neither by the definition of structure in the Southborough by-law, nor that furnished in case law, see Williams v. Inspector of Bldgs. of Belmont, 341 Mass. 188, 190-191 (1960), was the airstrip a structure. The airstrip, therefore, does not enjoy the benefit of the ten-year limitations period under G. L. c. 40A, § 7, for structures erected without a permit. See Lord v. Zoning Bd. of Appeals of Somerset, 30 Mass. App. Ct. 226, 228 (1991).
The town does not challenge the existence or use of the existing airstrip, but the neighbors do. As against them, Garabedian raised the defense of loches. The trial judge found that the neighbors had slept on their rights for eleven years before filing a complaint, and that Garabedian has changed position by improving and maintaining his airstrip and buying airplanes to use on it. To that degree, the inactivity of the neighbors contributed to a prejudicial change of position by Garabedian. The elements of loches are present. See West Broadway Task
6. Expansion of the airstrip. By parity of reasoning to our earlier discussion of whether the hangar was customarily incidental to the primary residential use, the airstrip expansion does not qualify as an accessory use.
Conclusion. In the declaratory judgment action, the judgment is vacated and a new judgment shall enter dismissing the action against all defendants on the ground of mootness. (See note 3, supra.) The judgment and order in that case awarding attorney’s fees and costs to Westland and Johnston under G. L. c. 231, § 59H, are also vacated. We affirm judgments denying enforcement relief as to the existing airstrip and the existing hangar; affirming the decision of the board of appeals of Southborough to deny a permit for construction of a second hangar; and affirming the decision of the board of appeals of Southborough to deny a permit for construction of the proposed extension to the existing hangar.
So ordered.
The acronym SLAPP stands for “strategic litigation against public participation.”
After our decision, the trial judge (see infra) dismissed as moot Garabedian’s declaratory judgment action against the town officials.
But see G. L. c. 240, § 14A, which provides for declarations of rights under municipal land use ordinances or by-laws. For an illustration of the application of that statute, see Radcliffe College v. Cambridge, 350 Mass. 613 (1966).
We are not unaware that the judge who considered the § 59H motion to dismiss concluded that petitioning activity was the target of the declaratory judgment action; but the fact of the encounters between the neighbors and Garabedian’s contractor is not disputed.
The injunctive relief sought in the complaint was dependant upon, and simply a mechanism for enforcement of, any favorable declaration Garabedian obtained.
General Laws c. 231 A, § 8, requires that all persons who have any interest which would be affected by the declaration of rights sought shall be made parties to the declaratory judgment action.
The statute, in pertinent part, provides: “In any case in which a party asserts that the civil claims, counterclaims, or cross claims against said party are based on said party’s exercise of its right of petition under the constitution of the United States or of the commonwealth, said party may bring a special motion to dismiss.” G. L. c. 231, § 59H.
Garabedian’s contractor acceded to the orders to remove improper fill. That issue was not involved in the declaratory judgment action.
Homor, Massachusetts Municipal Profiles 2002-2003, at 279 (Information Publications 2002). The population of Southborough in 1990 was 6,628 and in 2000 was 8,781. Ibid.
Of course, a community may adopt zoning by-law provisions that allow airstrips and hangars, most likely subject to special permit. Southborough, as noted, does not currently have such a provision.
In terms of this litigation, the only neighbors involved are Johnston and Westland.