JOHENNING v. PLANNING BOARD OF MILTON (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Philip Johenning and John S. Rowe appeal from a decision of a judge of the Land Court, affirming the Milton planning board's grant of a special permit to Joshua Oldfield, Margaret (Maggie) Oldfield, and Thayer Nursery Corporation (the corporation), to operate a landscaping business in a residential zoning district. We conclude that Joshua and Maggie met the eligibility requirements for the special permit, but that the corporation did not. We accordingly vacate that portion of the judgment, and remand to the Land Court for entry of a revised judgment consistent with this memorandum and order.

Background. Beginning with Robert C. Oldfield and Margaret T. Oldfield (the Oldfield parents), since the 1960s, the Oldfield family or entities owned and controlled by members of the Oldfield family, has operated a nursery known as Thayer Nursery on property located in a residential district in Milton.⁴ Over the years, the use has expanded to include a landscaping business. The nursery and landscaping business (collectively Thayer Nursery) operates on several lots owned by members of the Oldfield family or the Oldfield Family LLC. Thayer Nursery Corporation is a closely held corporation incorporated on February 10, 1965, and owned and controlled by members of the Oldfield family. Joshua and Maggie Oldfield, the children of Robert and Margaret, are the only officers and directors of the corporation; Joshua is the president and director, Maggie is the secretary and treasurer. The corporation leases all of the Thayer nursery property from the respective owners.

In 1967, the Oldfield parents obtained a special permit allowing sales of produce at least partially raised on the premises, operation of “the business of landscaping,” and construction of a greenhouse and a lath house. The 1967 special permit was carefully restricted; it ran to the Oldfield parents, “personally (including any assistants) only,” and provided that it “shall not be assigned or transferred to any other person.” The 1967 special permit decision noted that neighbors supported the application in part because of the high esteem in which they held the applicants. The special permit did not specifically prohibit the Oldfield parents from creating or engaging a corporate entity to facilitate or assist them in operating Thayer Nursery.

The special permit was amended in 1987. The amendment approved expanded operations at the nursery. The planning board's 1987 amendment decision noted that no complaints had ever been received about the operation of the nursery, and that the premises had always been kept in a neat and clean condition. At the parents' request, the 1987 amended permit also specifically ran to the Oldfields' children. The board found that “the original special permit was intended to prevent the transfer of the permit to third persons who were not held in such high esteem as that which the neighbors held the applicants and that there was no intention to deprive members of the applicants' immediate family of the benefits of the Special Permit.” Thus, the board amended the special permit to run to “the applicants [Robert and Margaret Oldfield] and their children personally (including any assistants) only, and shall not be assigned or transferred to any other person.”

Beginning in 2001 and running through 2013, abutters complained, intermittently, of expanded commercial activity on the Thayer Nursery properties. Zoning enforcement actions occurred, which resulted in additional conditions being imposed on the business uses, as well as cease and desist orders. Eventually, however, in February, 2016, the town amended its zoning bylaws by amending section III.N, entitled “Landscaping Business Use” (the amended landscaping bylaw). The stated purpose of the amended landscaping bylaw was “to permit the ongoing operations of landscaping businesses, which were in operation on July 2012 and which existed on lots for at least one of which a special permit ․ or use variance issued by the Board of Appeals was in force on July, 2012.” In a previous case the amended landscaping bylaw was upheld against challenges that it constituted “spot zoning,” and that it was inconsistent with G. L. c. 40A, § 9. Johenning v. Milton, 92 Mass. App. Ct. 1102 (2017).

On May 19, 2016, Joshua Oldfield, Maggie Oldfield, and the Thayer Nursery Corp. applied for a special permit under the amended landscaping bylaw.⁵ The board granted a special permit to all three applicants, and imposed detailed conditions on a range of topics including: scope of the business; hours of operation; noise and dust controls; number of employees and vehicles; enforcement measures; a three-year term limitation; and others. The plaintiffs, abutters to the Thayer Nursery property, appealed to the Land Court, which affirmed the grant of the special permit.

On appeal to this court, the plaintiffs substantially limit their argument to asserting that the corporation does not meet the eligibility requirements of the amended landscaping bylaw, and so could not be a permit holder. The plaintiffs also contend that Joshua and Maggie's rights in prior special permits had “lapsed” and, therefore, that Joshua and Maggie do not meet the eligibility requirements either.

Discussion. 1. Special permit grants. The amended landscaping bylaw provides:

“In a residence zone on a lot or lots on which a landscaping business was being conducted in July 2012, the Planning Board may grant a special permit for a landscaping business use on such lot or lots provided that the applicant or applicants or their predecessors in interest on that date held a special permit ․ issued by the Board of Appeals with regard to all or part of any such lot” (emphasis added).

It is uncontested that a landscaping business was being conducted on the Thayer Nursery lots in July 2012. In addition, in July 2012, Joshua and Maggie or their predecessors, the Oldfield parents, held a special permit for one or more of the Thayer Nursery lots. As a result, Joshua and Maggie prima facie met the eligibility requirements to apply for a special permit under the amended landscaping bylaw. There was thus no error in the Land Court judge's decision to uphold the grant of the special permit as to Joshua and Maggie (unless potentially, their special permit had lapsed before 2012 -- an argument that is addressed infra).

The corporation, however, did not hold a special permit in July 2012. That it may well have operated the nursery and landscaping business since 1967 does not qualify it under the amended landscaping bylaw. Rather than focusing on the entity conducting the business, the amended landscaping bylaw focuses only on the entity that “held” the special permit in July 2012. The special permit was held by the Oldfield parents and their children. Indeed, both the 1967 permit and the 1987 amendment indicate that at least in part, it was the high esteem with which the family was held that made them eligible for the special permit. Although the corporation existed in 1967 and 1987, it was not named as a holder of the original or amended special permit. Furthermore, the specific language of the special permits -- granting the permits to the Oldfields “personally” -- does not allow the conclusion that the corporation is a successor in interest to the Oldfield parents or children. Accordingly, the corporation did not meet the eligibility requirements for a special permit and it was error to include it as a holder.⁶

2. Lapse. Turning back to Joshua and Maggie, the abutters argue to this court that any special permit that Joshua and Maggie held had lapsed before July 2012, because Joshua and Maggie never personally commenced “substantial use” of the special permit. See Milton Zoning Bylaw, § IX C. 1 (“Special permits shall lapse within a period of two years of the final effective date thereof if substantial use of the same has not sooner commenced, except for good cause”). See also G. L. c. 40A, § 9; Lobisser Bldg. Corp. v. Planning Bd. of Bellingham, 454 Mass. 123, 129 (2009). This is the case, the abutters contend, because the corporation conducted the business operations on the locus, rather than Joshua and Maggie.

The abutters' lapse argument is without merit. To begin, it is not at all clear that this issue was raised adequately in the Land Court. The complaint does not allege facts to support a finding of lapse of the 1987 amended special permit, and does not specifically assert that the amended special permit had lapsed. The judge, in her thorough decision, does not address the issue. And, the abutters have not included the cross motions for summary judgment or any supporting memoranda in the record appendix. At oral argument before us, the parties indicated that the lapse issue was mentioned in passing at the summary judgment oral argument. “The burden is on the appellant[s] in the first instance to furnish a record that supports [their] claims on appeal.” Arch Med. Assocs. v. Bartlett Health Enters., 32 Mass. App. Ct. 404, 406 (1992). “Errors that are not disclosed by the record afford no basis for reversal.” Id.

Even if the issue was raised in the Land Court, however, we discern no genuine issue of material fact on the issue of lapse. The appellants' contention appears to be that Joshua and Maggie did not “commence” “substantial use” of the 1987 amended special permit because the corporation, not Joshua and Maggie, was actually conducting the landscaping business. But the plaintiffs cite us to nothing in the summary judgment record that supports this proposition. It is not disputed that Joshua and Maggie were regularly on the property and actively engaged in the business. As a legal matter, the plaintiffs cite no authority for the proposition that Joshua and Maggie's activity was insufficient to commence use of the permit, just because the corporation was also involved. One or more corporations may be formed to carry out the objectives and purposes of the persons controlling them, and “[n]o impropriety is attached, necessarily, to the use of the corporate form in this way.” Attorney Gen. v. M.C.K., Inc., 432 Mass. 546, 557 (2000). And, as a factual matter, the plaintiffs have pointed us to no evidence that attempts to distinguish actions taken by the Oldfields as corporate officers, as opposed to in their individual capacities, for purposes of exercising the special permit.⁷

Finally, we note that while it was aware of the existence of the corporation, the planning board also required Joshua and Maggie, personally, to ensure compliance with the conditions in the special permit,⁸ thereby insisting upon Joshua and Maggie's ongoing personal participation in operations. Joshua and Maggie's dual roles in their personal capacities and as officers of the corporation clearly did not trouble the town. We discern no merit to the abutters' argument that the amended 1987 special permit had lapsed prior to 2012 because Maggie and Joshua had not exercised it.

In sum, we conclude that Maggie and Joshua met the eligibility criteria as applicants for the 2016 special permit and the special permit properly was granted to them, but that it was error to include the corporation as a holder of the 2016 special permit. Accordingly, we vacate so much of the judgment as included the corporation as a holder of the 2016 special permit. The judgment is otherwise affirmed. The matter is remanded for entry of a revised judgment consistent with this memorandum and order.

So ordered.

affirmed in part; vacated in part and remanded

FOOTNOTES

4.   Apparently the property straddles the residence “A” district and the residence “AA” district. Neither party contends that there is a material difference between the two residential districts with regard to the issues before us.

5.   The application form provided in one column space for “Owner” and, under Owner, a space for “Company” and in a second column, a space for “Applicant,” and under Applicant, a space for “Company.” Margaret T. Oldfield was listed as “Owner,” and Oldfield Family LLC was listed underneath as “Company.” Josh Oldfield and Maggie Oldfield were listed as “Applicant,” and Thayer Nursery was listed underneath as “Company.” The Oldfield Family LLC was not included as a holder in the special permit and there is no argument on appeal that it should have been included.

6.   The corporation is of course a separate legal entity from Josh and Maggie, Spaneas v. Travelers Indem. Co., 423 Mass. 352, 354 (1996), and in theory the Oldfields could sell the corporation to a different owner.

7.   Indeed, the judge rejected an argument that the Oldfield children have not personally operated the landscaping business. The judge reasoned, in part, that the “[p]laintiffs do not explain why Thayer Nursery would ․ not be entitled to operate through the Oldfield Children, as it had under the Oldfield Parents since 1967.”

8.   The special permit named Joshua and Maggie as the “Operators.” It further provided that the Operators “shall be responsible for ensuring that all requirements, terms, and conditions of the [s]pecial [p]ermit are complied with” and shall cure any noncompliance and take appropriate steps to prevent recurrence. In addition, it required that “an Operator or an authorized representative shall be on-site during regular business hours.” Finally, the special permit requires that if the property or landscaping business are transferred to a third party who seeks to continue operation, that third party would need to meet the criteria for an applicant and apply for a new special permit.