The plaintiff Simmons sued the
defendant Jones to remove three horses from the Jones’ residential property. The
zoning board, board of appeals, and trial court all agreed the horses could stay
because they were family pets—they were used only for recreational riding and
as such were used incidental to the recreational use of the property.
In this opinion, the Court of Appeals agrees with that conclusion and
permits the horses to stay.
appeal brings before us the question whether the applicable provisions of the
Newburyport zoning ordinance allow the defendants (the Joneses) to stable three
horses on a portion of their land, which is zoned for residential use. The
defendants use the horses for recreational purposes and derive no financial gain
from them. The plaintiffs argue that the stabling of the horses violates §
V‑B of the ordinance. [FN4] The building inspector, the zoning board of
appeals of Newburyport (board), and a Superior Court judge (on cross motions for
summary judgment) concluded that the defendants were not in violation of the
ordinance. [FN5] We conclude that the stabling of the horses is an accessory use
and affirm the judgment.
V‑B provides: "Except as provided in this ordinance, no building,
structure, or land shall be used except for the purposes permitted in the
district, by right or by special permit, as described in this section."
the parties submitted competing affidavits regarding the presence or absence of
noxious odors and flies, there was no claim of nuisance before the judge. In the
Superior Court, the parties acknowledged that there were no material facts in
dispute and that the sole question before the judge was one of law, that is, the
interpretation of the zoning ordinance and its applicability to the defendants'
The undisputed facts. All the lots in question are located in the
"residential two" (R‑2) district of the city of
Newburyport, a district in which only one‑family and two‑family
houses are allowed. [FN6] There is a two‑family dwelling on the
plaintiffs' lot. A single‑family structure and the stable for the three
horses are situated on the defendants' lot. As previously stated, the horses are
kept for pleasure, such as riding, from which no financial benefit is derived.
Section III‑B of the ordinance prohibits, in both residential zones,
R‑1 and R‑2, uses that would "detract from the desired
residential character" and uses that would "otherwise interfere with
the intent" of the ordinance.
single‑family houses are allowed in the "residential one"
(R‑1) zoning district.
Discussion. It is the plaintiffs' position that the keeping of the stable
and three horses in an R‑2 zone is both an impermissible agricultural and
accessory use of the property.
Agricultural use. Section V‑E(3) of the ordinance, concerning
agricultural and open space use, describes "agricultural use" as:
for the raising, keeping, and/or sale of cattle, horses, sheep, goats, dogs, and
poultry, but not for hogs, providing that no animal is kept within fifty (50)
feet of any property line, and for the growing of all agricultural products,
including fruits, vegetables, hay, grain and all dairy products and eggs.
or stand for selling farm or garden products, the major portion of which is
raised or produced on the premises by the owner or lessee thereof.
or stand for the sale of nursery and greenhouse products."
The ordinance also requires that land that is not situated within an area
zoned as an "agricultural/conservation district," but is put to
agricultural use involving the above‑described animals, must be at least
five acres. Additionally, no animal on property being put to agricultural use is
to be kept within fifty feet of any property line. The undisputed facts of the
matter are that the defendant's lot is situated in an R‑2 zone, it is a
2.4 acre lot, and the west side of the stable is located within
twenty‑five feet of the plaintiffs' property line.
other uses included within § V‑E(3) are country clubs and public parks
plaintiffs argue that the defendants are maintaining a farm on a lot too small
for agricultural use. The flaw in their argument is that it conflates
"farm" with any form of agricultural activity. The mere fact that a
use is agricultural in character, a vegetable garden for example, does not
convert the land into a farm. In assessing whether property is a farm, it is
entirely appropriate to consider the scale of the activity. Applying the
ordinance to the undisputed facts, we conclude that the defendants' stabling of
their three horses does not constitute a farm and, accordingly, is not an
agricultural use within the meaning of the ordinance.
Accessory use. Our conclusion, that the defendants' lot is not a farm and,
therefore, does not contain an impermissible agricultural use of property
situated within a residential zone, brings us to the question whether the stable
for the keeping of three horses for purposes of riding and as pets is a
permissible accessory use.
II‑B of the Newburyport ordinance defines an "accessory use" as
a "subordinate use, structure,
or building, the purpose of which is incidental to that of the principal use or
building and on the same lot." [FN8]
In Harvard v. Maxant, 360 Mass. 432,
438, 275 N.E.2d 347 (1971), the court had occasion to consider the meaning of
the word "incidental" when used to define an accessory use. In doing
so, it quoted with approval and at length from
Lawrence v. Zoning Bd. of Appeals of N. Branford, 158 Conn. 509,
512‑513, 264 A.2d 552 (1969):
word 'incidental' as employed in a definition of 'accessory use' incorporates
two concepts. It means that the use must not be the primary use of the property
but rather one which is subordinate and minor in significance. Indeed, we find
the word 'subordinate' included in the definition in the ordinance under
consideration. But 'incidental,' when used to define an accessory use, must also
incorporate the concept of reasonable relationship with the primary use."
Henry v. Board of Appeals of Dunstable, 418 Mass. 841, 845, 641 N.E.2d 1334
(1994), discussed in note 8, supra.
See also Garabedian v. Westland, 59
Mass.App.Ct. 427, 435, 796 N.E.2d 439 (2003).
definition somewhat parallels the description of an "incidental use"
given by the court in Henry v. Board of
Appeals of Dunstable, 418 Mass. 841, 844, 641 N.E.2d 1334 (1994), wherein
the court noted that the word "incidental," when used in the context
of zoning, incorporates two concepts: (1) subordinate to the primary use and
minor in significance; and (2) reasonably related to the primary use.
§ II‑B of the Newburyport ordinance defines an accessory use in terms of
"subordinate" and "incidental," it neither uses the word
"customary" nor specifies or otherwise describes the various uses that
are accessory uses. "Generally speaking, an accessory use needs to be both
customary and incidental. See Harvard v.
Maxant, 360 Mass. at 438, 275 N.E.2d 347. Courts consider the question
whether a particular use is customary where the zoning ordinance does not
specify what types of uses are
permitted." Cunha v. New Bedford,
47 Mass.App.Ct. 407, 411 n. 5, 713 N.E.2d 385 (1999). Based upon the language of
the Newburyport ordinance as well as
Maxant and Cunha, our analysis
focuses on whether the defendants' use of the stable and keeping of three horses
is subordinate to the primary residential use of the property, is reasonably
related in function to the primary residential use, and is customary.
undisputed facts establish that the defendants' stable and three horses are
subordinate and incidental to the primary use of the land. Their home is
situated on the lot, and their horses are used by family members and guests for
recreational purposes rather than financial benefit. The building inspector,
with whom the board agreed and with whom we have no basis for disagreement,
concluded that the three horses were pets. [FN9] The keeping of pets is, of
course, reasonably related to the primary residential use of the property.
determining whether certain animals may be considered pets, we look not only to
species but also to the manner and purpose for which the animals are kept and
maintained. See, e.g., Steege v. Board of
Appeals of Stow, 26 Mass.App.Ct. 970, 972, 527 N.E.2d 1176 (1988) (property
owners' purchase, raising, and sale of young horses constituted agricultural
use); Sturbridge v. McDowell, 35
Mass.App.Ct. 924, 926, 624 N.E.2d 114 (1993) (raising and training of dogs for
purposes of sale held to be an agricultural use).
Although it was open to the board to find, as matter of discretion, that the
keeping of three horses, rather than one or two, was neither subordinate nor
minor in respect to the residential use of the property, it did not do so. See Cunha v. New Bedford, 47 Mass.App.Ct. at 412, 713 N.E.2d 385;
Burnham v. Hadley, 58 Mass.App.Ct. 479, 485, 790 N.E.2d 1098 (2003).
determining whether the defendants' stable and horses are a customary use of
residential property, we do not confine ourselves to zone or district
boundaries. Instead, we again look to
Harvard v. Maxant, 360 Mass. at 438‑ 439, 275 N.E.2d 347. There the
court found instructive the discussion of the meaning of the word
"customarily," as set out in
Lawrence v. Zoning Bd. of Appeals of N. Branford, 158 Conn. at 513, 264 A.2d
applying the test of custom, we feel that some of the factors which should be
taken into consideration are the size of the lot in question, the nature of the
primary use, the use made of the adjacent lots by neighbors and the economic
structure of the area. As for the actual incidence of similar uses on other
properties, geographical differences should be taken into account, and the use
should be more than unique or rare, even though it is not necessarily found on a
majority of similarly situated properties."
Pratt v. Building Inspector of Gloucester, 330 Mass. 344, 346, 113 N.E.2d
816 (1953); Building Inspector of Holden
v. Johnstone, 357 Mass. 768, 768, 258 N.E.2d 72 (1970), decisions in which
is undisputed evidence in the record to establish the rural character of the
area and the presence of animals, numerous in number and kind, on residential
property. More specifically, there is undisputed evidence to establish that
there are a number of lots in the R‑1 zone, smaller in size than the
R‑2 lot of the defendants (see note 6,
supra ), upon which numerous horses, assorted chickens, rabbits, goats,
sheep, beef cattle, cows, heifers, and calves can be found. In determining
whether the defendants' stable and horses are customarily associated with the
primary use of the property, the size of the lot is but one fact among several
to be considered. Among those facts, the most significant is that all the lots
upon which a number of animals can be found are situated in areas zoned for
residential use. [FN11] Moreover, we extend a measure of deference to the
determinations of local officials on issues of local enforcement, particularly
where the essential question requires a factual determination of what is
customary. See Sacco v. Inspector of Bldgs.
of Brockton, 3 Mass.App.Ct. 749, 749‑750, 327 N.E.2d 924 (1975).
plaintiffs claim that the judge erred in denying their motion to strike the
exhibits and affidavits setting out undisputed facts concerning the many animals
kept on properties in the area. We see no error. The undisputed facts therein
recited were relevant to the factors discussed in
Harvard v. Maxant, 360 Mass. at 438‑439, 275 N.E.2d 347. We have not,
however, considered any of the lots zoned for agricultural/open use upon which
animals are kept.
We digress from our analysis to
consider the plaintiffs' insistence that this case is controlled by Pratt v. Building Inspector of Gloucester, 330 Mass. at
346‑347, 113 N.E.2d 816. There the court held that a stable for the
keeping of two horses used for purposes of show and treated as pets was not
"so necessary in connection with a one family detached house or so commonly
to be expected with such a house that it cannot be supposed the ordinance was
intended to prevent it." It was on that basis that the court concluded that
the plaintiffs' use of their property was not a permissible accessory use within
the contemplation of the ordinance as adopted in 1927 and as reenacted in 1950.
The plaintiffs maintain that the only significant difference between
Pratt and the instant case is the number of horses involved.
There are several important
distinctions between Pratt and the
present case. First, the ordinance at issue in
Pratt made no provision for any accessory uses. This circumstance led the
court to consider whether, construing the ordinance in a reasonable manner, the
stable and horses at issue reflected a use
impliedly permitted as an incident of a single‑family structure. The
test formulated by the court was restrictive because to do otherwise would
thwart the drafters' intention to make no provision for accessory uses. [FN12]
explained in Henry v. Board of Appeals of
Dunstable, 418 Mass. at 844, 641 N.E.2d 1334:
"Uses which are 'incidental' to a permissible activity on zoned property are permitted as long as the incidental use does not undercut the plain intent of the zoning by‑law. 2 E.C. Yokley, Zoning Law and Practice § 8‑1 (4th ed.1978). An accessory or 'incidental' use is permitted as 'necessary, expected or convenient in conjunction with the principal use of the land.' 6 P.J. Rohan, Zoning and Land Use Controls § 40A.01, at 40 A‑3 (1994). Determining whether an activity is an 'incidental' use is a fact‑dependent inquiry, which both compares the net effect of the incidental use to that of the primary use and evaluates the reasonableness of the relationship between the incidental and the permissible primary uses."
our close reading of Pratt shows that
the court was focused more on the utility of horses rather than their status as
pets. As earlier noted, in concluding that the stabling of two horses was not an
accessory use of residential property as of the dates of the ordinance's
enactment and reenactment, 1927 and 1950, the court stated that "[i]f the
same question were presented as of the year 1900, for example, it is possible
that a different answer would be required." Id. at 347, 113 N.E.2d 816. We think it reasonable to infer from
that statement that the court could have deemed a stable "so commonly to be
expected" with a dwelling in 1900, because horses were then a primary mode
of transportation, whereas by 1927, and certainly by 1950, they were not.
and most critically, the ordinance at issue in Pratt specifically listed stables among a number of "more or
less undesirable uses" permitted only in business districts and, even then,
only with the written approval of the municipal council subject to any
conditions the council might impose. Id.
at 345, 113 N.E.2d 816. A very restricted and undesirable use could hardly be
deemed a necessary or commonly expected aspect of a dwelling.
think the facts before the court in Pratt
are a far cry from those before us. The ordinance allows for accessory uses in
general terms and without specification as to those types that are either
permissible or prohibited. The keeping of various and numerous kinds of animals
has been shown to be a fairly common feature of residential lots. See note 11,
Conclusion. It follows from what we have said that there was no error in the
judge's decision that the defendants' stabling of three pet horses on their
residentially zoned property is a permissible accessory use.
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