Creating Thriving Communities Through Land Use And Real Estate Law

Sometimes a Municipal Board is “Arbitrary and Capricious”

The Land Court has overturned the denial of a special permit to a commercial nursery in Falmouth in GSTVS, LLC v. Falmouth Planning Bd., 14 MISC 486885 (Mass. Land Ct. Mar. 21, 2016), finding that that Board erred in its factual findings – a somewhat unusual occurrence given the deferential standard of review for municipal board decisions.

GSTVS, LLC, is the current owner of 25 Crocker Road in East Falmouth.  The property has been used for agriculture since the 1920s.  Sometime during the 1990’s the property change from a retail nursery to a commercial nursery.  From the late 1990s through 2004, Francisco Tavares, Inc. (FTI), a landscaping company, (GSTVS’s predecessor in title) cleared land at the property to expand its nursery operations, planted a tree farm, constructed plastic greenhouses, built a small garage for a generator for the greenhouses, and moved a house onto the site for offices and an apartment, among other changes.

In 2000 the Falmouth Zoning Code was amended specifically to provide certain relief for the property.  The new Code provision provided for the grant of a special permit to the owner of a lot which is in agricultural use for commercial nursery operations to allow storage of equipment and supplies on the lot.  FTI applied for, and received, such a special permit.

During the recent economic downturn, the commercial nursery use has declined, but at no point has been abandoned – evidence at trial demonstrated that four independently-owned landscape and gardening companies operated on the property, and that trees and shrubs continue to be grown for commercial purposes on the property.  There are also two tree farms on the property.

In May of 2014, GSTVS applied for a special permit pursuant to the same section of the Code that allowed for the earlier permit to FTI.  After a public hearing on the application the Board took a view of the property, at which time certain members of the Board made statements to the effect that they expected plants to be set out in an organized manner, in rows, which was not the case.

Based on the testimony at the public hearing and the view, the Board denied GSTVS’s application, finding that “currently no portion of the lot(s) are in agriculture use for commercial nursery operations,” that “none of the requested vehicles, equipment or materials to be stored . . . were previously accessory to the supposed existing commercial nursery operations,” and that the special permit was not “intended for tenants that have no previous relationship to the owner’s commercial nursery operations.”

The Land Court disagreed.  Even applying the “highly deferential” standard of review of the Board’s decision, the Board’s basis for its decision was incorrect.  Noting that “deference is not abdication,” the Court found that this was one of “those rarely encountered points where no rational view of the facts the court has found supports the board’s conclusion that the applicant failed to meet one or more of the relevant criteria in the governing statute or by-law.”

Specifically, the Court found that the current use of the property does constitute “commercial nursery operations,” and that whether specific pieces of equipment had previously been stored was irrelevant, as the storage use itself was the relevant part of the analysis (recognizing that “most equipment has a finite lifespan and is replaced over time during the normal course of operation.”).  Finally, the Court found that there was no basis in the Code to “bar[] a tenant of a commercial nursery from operating under a special permit issued to the owner.”

GSTVS had requested that the Court order the issuance of the special permit; however, the Court remanded the matter to the Board for further consideration, as “there are still a number of inquiries in the special permitting process that the Board must make before a decision can be issued, such as whether the proposed use will have no adverse impacts on the neighborhood, what hours of operation should be specified, and what types and number of vehicles should be permitted.”  Insufficient evidence was presented at the trial to allow the Court to make a determination on these additional matters.

This case should serve as a reminder to municipal boards that despite the leniency they have in analyzing and applying their own bylaws, the courts will not blindly uphold a decision that is truly unsupported by the facts, and that sometimes even the “unreasonable, whimsical, capricious or arbitrary” bar is met.