Posted by: Patricia Salkin | October 7, 2020

MA Appeals Court Finds It Was Error to Include Corporation as Holder of 2016 Special Permit

This post was authored by Christine Velia, Touro Law Center

Since the 1960s, the Oldfield family, or entities owned by Oldfield family members, has operated Thayer Nursery in a residential district.  Thayer Nursery Corporation, which leases Thayer Nursery land, is a closely held corporation incorporated in 1965 and owned and controlled by the Oldfield children, Joshua and Margaret Oldfield.  The Oldfield parents obtained a special permit allowing a landscaping business at Thayer Nursery in 1967.  The Special Permit ran to the Oldfield parents personally but did not specifically prohibit them from creating or engaging a corporate entity to facilitate or assist in operating Thayer Nursery.  In 1987 the special permit was amended to expand operations at the nursery and specifically run to the Oldfields’ children. 

In 2016, the town amended its zoning bylaws by amending section III.N., entitled “Landscaping Business Use.”  The amended landscaping bylaws state that “[i]n 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.”

Joshua Oldfield, Margaret Oldfield, and the Thayer Nursery Corp. applied for a special permit under the amended landscaping law in 2016.  The board granted a special permit to all three applicants.  Abutters to the Thayer Nursery property appealed to the Land Court, which affirmed the special permit’s grant.

The record showed that it was uncontested that a landscaping business was conducted on the Thayer Nursery lots in July 2012.  It was also uncontested that Joshua and Margaret or their predecessors, the Oldfield parents, held a special permit for one or more of the Thayer Nursery lots in July 2012.  There was, therefore, no error in the Land Court judge’s decision to uphold the grant of the special permit as to Joshua and Margaret.  However, the corporation did not hold a special permit in July 2012, even though it may have operated the landscaping business since 1967.  Additionally, the special permit was granted specifically to the Oldfields personally.  The corporation is not a successor in interest to the Oldfield parents or children.  Because the amended landscaping bylaw focused only on the entity that “held” the special permit in July 2012 and not on the entity conducting business at that time, the corporation did not meet the eligibility requirements for a special permit.

Abutters also argue that any special permit held had lapsed before July 2012 because Joshua and Margaret never personally commenced “substantial use” of the special permit.  The record showed that Joshua and Margaret were regularly on the property and actively engaged in the business.  The planning board required Joshua and Margaret, personally, to ensure compliance with the conditions in the special permit, thereby ensuring their ongoing personal participation in the operations.  The Court found the abutter’s argument that the 1987 special permit had lapsed before 2012 to be without merit.

The Court vacated that portion of the judgment that included the corporation as a holder of the 2016 special permit.

Johenning v. Planning Bd. of Milton, 2020 WL 4918025 (Mass. App. 8/21/2020)

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