Posted by: Patricia Salkin | November 15, 2019

MA Appeals Court Affirms that Owner’s Proposed Candy and Gift Shop is not a Customary Home Occupation Under the Town Bylaws and is Detrimental to the Residential Neighborhood

This post was authored by Michelle Jablonski ’20, Touro Law Center

Plaintiff, Brenda Haryslak, filed an application with the Town Board of Groveland for a special permit to operate a candy and gift shop from her home. The property was in the town’s R-B residential zone, where such use of the residence was not permitted. The board denied the application, and the plaintiff sought judicial review of the board’s decision pursuant to G.L.c. 40A, Section 17. Under the General Law of Massachusetts, appealing the board’s decision requires de novo fact-finding. The board’s decision cannot be changed unless it is unreasonable, whimsical, capricious, or arbitrary. After a de novo trial, the Superior Court judge affirmed the board’s findings that the proposed retail use of the property was not a customary home occupation under the bylaws and that the intended retail use would be detrimental to the surrounding residential properties. In this case, the plaintiff appealed the Superior Court’s determination to the Appeals Court of Massachusetts.

The plaintiff had the burden of establishing that she was entitled to a special permit under the bylaws. She testified that she intended to operate a penny candy and gift shop in an 800-square-foot area of her home. She also testified that she anticipated about forty customers per day and believed that her property would accommodate fourteen parking places in an area adjacent to her residence, that she intended to pave. Further, the plaintiff set out hours of operation and stated that the shop would be open from Monday through Saturday, from 10 a.m. to 6 p.m., and on Sundays, it would be open from 12 p.m. to 6 p.m. In addition, she argued that because other residential properties in the area were allowed to conduct retail operations, such operations are customary within the meaning of the bylaws. The zoning enforcement officer of the Town of Groveland also testified. He stated that, based on his knowledge, there were no other retail candy and gift shops that had received special permits to operate as a home occupation in the town’s residential zone. Further, he testified that many of the retail operations that were offered as examples by the plaintiff were preexisting nonconforming uses and were not home occupations that were authorized by a special permit under the bylaws.

The Appeals Court referenced Section 301.20.2 of the governing bylaws. Under the bylaws, only resident occupants are permitted to conduct customary home occupations, and the home occupation must not be detrimental to the residential neighborhood. If both of the requirements are satisfied, a special permit may be permitted. Further, according to the bylaws, a home occupation is an occupation or profession that is customarily carried on in a dwelling unit or building. The bylaws do not define the term “customarily.” However, there are examples of uses that may constitute a home occupation. A professional office of a physician, dentist, lawyer, engineer, architect, real estate agent, or accountant may represent home occupations. The bylaws also provide examples of uses that may be prohibited, such as tourist homes, barbershops, commercial stables, restaurants, and tea rooms.

First, the court discussed the issue of whether the intended use was customary within the meaning of the bylaws. The court kept in mind that deference is owed to the board in its interpretation of the bylaws. It looked to the nature of the testimony provided by the plaintiff. It concluded that the Superior Court did not err when it held that the proposed use was retail in nature and not customarily found in the residential properties near the plaintiff’s property. The court also looked to the zoning enforcement officer’s testimony addressing the examples of retail occupations that the plaintiff provided. In accordance with the Superior Court’s reasoning, it stated that the officer’s testimony supported the conclusion that the evidence of other retail operations was not instructive to the court. The other properties did not involve similar circumstances and bylaws at the time of their approval. Lastly, this court found no error in the decision that the proposed use would be detrimental to the residential neighborhood. It relied on the plaintiff’s testimony that there would be about forty customers per day, which it believed would be detrimental. The judgment of the Superior Court was therefore upheld, and the plaintiff’s proposed use of her residence was not customary within the meaning of the bylaws and was detrimental to the residential neighborhood. The plaintiff’s special permit application to operate a candy and gift shop at her residence remained denied.

Haryslak v. Town of Groveland, 2019 WL 4620336 (MA App. Ct. 9/19/2019)

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