MERIDITH BAIER, individually and as Trustee of Clarmar Trust v. TOWN OF BREWSTER, BREWSTER PLANNING BOARD, JOHN TSIAREAS, and MARDIN REALTY LLC

INTRODUCTION

At issue in this case is the permissible use of two adjoining commercial units in the Foster Square "row commercial" development in Brewster, Massachusetts. Plaintiff Meridith Baier [Note 1] ("Baier" or "Plaintiff') challenges a decision of Defendant Town of Brewster Planning Board (the "Planning Board") granting a special permit to Defendant John Tsiareas ("Tsiareas") for a change of use in the Town's Corridor Overlay Protection [zoning] District ("COPD"). The challenged special permit purports to authorize the expansion of an existing restaurant occupying one unit in Foster Square into an adjoining unit, with the addition of a "sports bar" or lounge. In addition to the G.L. c. 40A, § 17 appeal of the Planning Board's special permit decision (Count III), the Baier Complaint includes two counts for declaratory relief In Count I, Baier seeks a declaration, under G.L. c. 240, § 14A, that the Town of Brewster Zoning By-law ("Zoning By-law") should be interpreted to require both a variance and a special permit for the proposed restaurant expansion. In Count II, Baier seeks the identical relief under G.L. c. 231A.

The parties have presented the Counts I and II declaratory judgment claims to the court on a "case stated" basis, deferring prosecution of the Count III appeal until the court has interpreted the Zoning By-law. The parties are in agreement concerning the basic facts, and have framed the legal issue to be resolved as follows: whether a special permit or a variance is required under the Brewster Zoning By-law in order for Tsiareas to establish a restaurant/sports bar in vacant Unit 26 of the row commercial development known as Foster Square. As discussed below, upon consideration of the pleadings, the agreed facts and exhibits, and the parties' legal memoranda, and following standard rules of statutory construction, I conclude that, as long as Tsiareas abandons the pre-existing nonconforming restaurant use in favor of establishing a new restaurant/lounge use, Tsiareas does not need a use variance in order to expand the existing restaurant into the larger space created by combining two adjoining, commercial units. In that event, however, two special permits are required - one pursuant to Article XII, § 179-66.B(l)(1.1) of the Zoning By-law to allow a change of use in the COPD ( a "COPD Special Permit"), and one pursuant to Article IV, § 179-11 of the Zoning By-law to allow the establishment of a new restaurant/lounge use in the V-B District.

FINDNGS BASED UPON THE PARTIES' AGREED FACTS AND EXHIBITS

The parties have submitted a statement of agreed facts, as well as nine agreed exhibits. Included among the agreed exhibits are the May 2009 special permit application of John Tsiareas to the Planning Board; a sketch plan of the proposed "Brewster Pizza Remodeling;" the Planning Board's special permit decision; and the Zoning By-law in effect on the date of the Planning Board special permit decision. Based upon the agreed facts and exhibits, I find the following:

1.Foster Square, a so-called, row commercial development, is situated on a 2.04 acre parcel in the Village Business (V-B) zoning district. Foster Square includes two (2) large buildings, housing ten (10) commercial units and one (1) residential unit.

2.The V-B district, formerly a Commercial High Density (C-H) district, was established by town meeting vote on October 17, 1988.

3.The Plaintiff's property is also in the V-B district, and abuts Foster Square.

4.Row commercial is listed in the Zoning By-law's Table of Use Regulations as a use permitted by right in the V-B district. Row commercial use is governed by s.179-38 in Article IX of the Zoning By-law. The definition of Row Commercial is contained in Article I, § 179-2. Since November 13, 2006, the definition has read as follows: Row Commercial: A structure or structures containing more than one commercial unit, each unit divided by firewalls, separation walls or other walls, or by being in a separate building so as to be separate and distinct from each other unit. Each unit contained shall be a permitted use and may be separately owned. [Note 2]

5.The Zoning By-law does not specify any minimum number of units permissible in a row commercial development, and does not specify any maximum size for individual units in a row commercial development. [Note 3] The By-law does not contain any regulation expressly limiting or prohibiting the combination of two or more existing commercial units in a row commercial development into one larger unit to house a single use.

6.A restaurant or lounge use was permitted by right in both the C-H and V-B districts until May 14, 1990, when the Zoning By-law's Table of Use Regulations was amended. Since that date, restaurant/lounge use has been allowed in a C-H or V-B district by special permit only.

7.The Corridor Overlay Protection District was adopted on May 9, 1994 as a town-wide overlay district, superimposed on all other zoning districts. Thus, all of the land in the V-B district, including Foster Square, lies within the COPD.

8.Pursuant to Article XII, § 179-66 of the Zoning By-law, all land and buildings in the COPD may be used for any purpose otherwise permitted in the underlying district, but subject to certain additional regulation. Among the additional regulations is the requirement that a special permit be obtained for certain changes of use of existing structures or lots in the COPD.

9.Pursuant to Article XII, § 179-66.B(1.1), a special permit must be obtained from the Planning Board for a change of use of an existing structure or lot in the COPD from its current use to any use specified in the Table of Use Regulations (with some exceptions not relevant here [Note 4] ) (a "COPD Special Permit").

10.Article VIII governs nonconforming uses, structures, and lots. Section 179-28.A of Article VIII requires that a special permit must be obtained from the Board of Appeals for any change of a pre-existing nonconforming use to another nonconforming use. Section 179-25 requires a special permit from the Board of Appeals for any change, extension, or alteration of a nonconforming use-other than a single or two-family dwelling.

11.When a project needs both a COPD Special Permit from the Planning Board and a special permit from the Board of Appeals pursuant to Article VIII, § 179-28.A for a change of nonconforming use, the Planning Board is authorized, under § 179-66. B(4) to act on a single consolidated special permit application, and to grant all relief in one procedure and decision.

12.The Planning Board is similarly authorized, under Article X, § 179-51.A, to act on a single, combined, special permit application whenever an applicant needs both a COPD Special Permit from the Planning Board and any other special permit from the Board of Appeals.

13.According to the By-law, when the Planning Board is acting on a combined application pursuant to either § 179-51.A or § 179-66, all requested special permit relief may be granted in one proceeding and decision by applying all of the special permit criteria appropriate to the various components of the application.

14.The business known as "Brewster Pizza House" occupies Unit 28 in Foster Square. Said business was established in that unit at a time when a restaurant use was permitted by right at that location. As a result, the restaurant became a pre-existing nonconforming use when the special permit requirement was adopted.

15.Prior to 2009, Unit 26 of Foster Square was occupied by a package store, which is a use permitted by right in the V-B district. Sometime in or before 2009, Unit 26 became vacant. Unit 26 adjoins Unit 28.

16.On May 4, 2009, Tsiareas applied to the Planning Board for a special permit to expand the existing Brewster Pizza House restaurant into the then-vacant Unit 26, with the addition of a bar and seating for twenty-two (22) customers at sixteen (16) tables.

17.Tsiareas' application to the Planning Board was entitled "Corridor Overlay Protection District Special Permit Application." The application appears to have been made on a pre-printed form particular to special permit applications for a change of use in the COPD under Article XII. No other special permit request was mentioned in the application.

18.On May 27, 2009, the Planning Board issued a special permit decision purporting to authorize the requested expansion pursuant to Article X, § 179-51 and Article XII, § 179-66.B.1. The decision recites the Planning Board's findings that the Tsiareas proposal meets each of the applicable criteria under s.s. 179-66 and 179-67 for a COPD Special Permit, as well as the criteria specified in Article X, § 179-51 applicable to all special permits.

19.The Planning Board's special permit decision describes the subject application as a "Petition for a Special Permit pursuant to ... the Town of Brewster Zoning By-law, Article XII, Chapter 179, Corridor Overlay Protection District Bylaw, to expand bar/lounge and pick up food area." There is no mention in the decision of any combined application including either a request for an Article VIII special permit to allow a change or expansion of a pre-existing nonconforming use, or a request for an Article IV special permit to allow establishment of a new restaurant use in the V-B district.

DISCUSSION

The Plaintiff contends that, under the Brewster Zoning By-law, Tsiareas' pre-existing nonconforming restaurant use may not be expanded into an adjoining, vacant, row commercial unit unless both a special permit for the expansion of the nonconforming use and a use variance have been obtained. She argues, therefore, that the special permit which Tsiareas received from the Planning Board is insufficient zoning relief, even if that special permit decision is ultimately found valid under Count III.

The Plaintiff's position appears to be based on three key, but incorrect, premises. First, the Plaintiff incorrectly reads the Zoning By-law as allowing only "by-right" uses in row commercial units. On this basis, she argues that a special permit use, such as a restaurant, is not a "permitted use" and, therefore, may not be established in a vacant row commercial unit absent a use variance. Second, the Plaintiff argues that, absent a variance, the Brewster Pizza House cannot lawfully be enlarged as a single use of two adjoining units. In making this argument, the Plaintiff misreads the By-law as absolutely prohibiting the consolidation of two adjoining row commercial units into one larger unit to house a single use. Third, the Plaintiff asserts that the Planning Board may not lawfully grant a special permit to authorize the expansion of a nonconforming use into an adjoining commercial unit without a use variance. In doing so, the Plaintiff apparently misconstrues the Planning Board's special permit decision (under appeal in Count III) as one purporting to authorize the expansion of a pre-existing nonconforming restaurant use.

For the reasons discussed below, I agree with the Plaintiff's basic position that the Planning Board special permit decision, alone, would be insufficient to permit Tsiareas to proceed with his proposed restaurant expansion, even if that decision is ultimately determined to be valid. I disagree, however, with the arguments advanced by the Plaintiff in support of her contention that both a special permit and a variance are required. I conclude, instead, that the proposed restaurant expansion requires two special permits. A COPD Special Permit is required for a change in use of Units 28 and 26 of the Foster Square Development from (a) a pre-existing nonconforming restaurant use in Unit 28 and (b) no use in Unit 26, to a conforming restaurant/lounge use in a larger commercial unit created by combining Units 28 and 26. In addition, a special permit is required pursuant to Article IV and the Table of Use Regulations for the new conforming restaurant/lounge use. Obtaining these two special permits will obviate the need for a special permit under Article VIII to expand the existing nonconforming restaurant, as well as any need for a use variance to expand a nonconforming use into the vacant Unit 26 space.

Row Commercial Units May be Used for Uses Permitted By Special Permit

Pointing to the last sentence of the row commercial definition in Article I, § 179-2, Baier contends that the phrase, "[e]ach unit shall be a permitted use," must be read as limiting row commercial units to only "by right" uses, thereby effectively prohibiting the establishment of any special permit uses (such as a restaurant) in a row commercial development. I find no reasonable basis for interpreting the phrase in the manner pressed by the Plaintiff. When the last sentence of the row commercial definition is read in the context of the Zoning By-law as a harmonious whole, "permitted use" plainly refers to a use permitted under the Zoning By-law either as of right or by special permit. See Livoli v. Zoning Board of Appeals of Sudbury, 42 Mass. App. Ct. 921 , 922 (1997) (a by-law should be interpreted so as to render it a consistent and harmonious whole as far as reasonably practical); Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass. App. Ct. 249 , 254 (1990) ("Terms used in a zoning by-law should be interpreted in the context of the by-law as a whole and, to the extent consistent with common sense and practicality, they should be given their ordinary meaning").

Indeed, the word "permitted" is employed throughout the Zoning By-law to refer to both by-right uses and special permit uses. For example, Article IV, § 179-10 provides that "no building, structure or land shall be used except for the purposes permitted in the district ...." (Emphasis added.) Under the Plaintiff's interpretation of the word "permitted," § 179-10 would have to be construed as limiting all land and structures in the Town to only "by-right" uses. That would be an illogical result given the explanation in § 179-11 that "the uses permitted by right in the district shall be designated [in the By-law's Table of Use Regulations] by the letter 'P' [and] [t]hose uses that may be permitted by special permit in the district, in accordance with § 179-51, shall be designated by the letter 'S'." (Emphasis added.) Similar references to uses "permitted" by special permit appear in Article X, § 179-51, which refers to uses in the Table of Use Regulations "designated as permitted on special permit," and in Article IX [Note 5] § 179-33, which provides that the regulations in Article IX "shall apply to the particular use or activity, whether it is permitted by right or by special permit." (Emphasis added.) These, and other similar, provisions in the Zoning By-law cannot be ignored when interpreting the phrase "permitted use" in the row commercial definition. See, e.g., Shea v. Danvers, 21 Mass. App. Ct. 996 , 997 (1986) (the requirements of one section of the by-law may not be ignored by reason of another unless strictly necessary). Accordingly, consistent with the above-quoted provisions and the Zoning By-law as a whole, I interpret the last sentence in the row commercial definition as meaning that the use of each commercial unit must be one which is permitted in the underlying zoning district either by right or by special permit.

The Zoning By-law Does Not Absolutely Prohibit The Combination of Two Row Commercial Units Into A Single Unit

The Plaintiff's second premise also misconstrues the Zoning By-law. Baier argues that a variance is required for the expansion of the Brewster Pizza House into Unit 26 because the Zoning By-law prohibits operation of a single use in two adjoining row commercial units. The Plaintiff is correct that each unit in a row commercial development must be used for a separate use. The Zoning By-law, however, contains no express prohibition against combining two adjoining row commercial units to create one larger unit. Nor can such a prohibition be reasonably implied as long as there remain at least two separate units in the development.

While the definition of row commercial necessarily implies that such a development must include at least two separate and distinct commercial units, the Zoning By-law otherwise contains no regulation specifying a minimum number of units in a row commercial development, [Note 6] or regulating the division or combination of units after a row commercial development has been built. Also, as noted above, row commercial development is permitted by right in the V-B district, so that there is no special permit condition which imposes any such limits on the number of units in the Foster Square development. Therefore, as long as all other applicable requirements of the Zoning By-law can be met, and as long as the Foster Square development continues to contain at least two separate units, Units 28 and 26 may be combined and used as one unit without the need for a variance.

The Challenged Special Permit Decision Did Not Authorize Expansion of Nonconforming Restaurant Use Under Article VIII

With respect to the Plaintiffs argument that the special permit decision, challenged under Count III of the Complaint, could not lawfully allow an expansion of a pre-existing nonconforming use into a second, vacant commercial unit absent a use variance, this argument appears to be based on the Plaintiffs misreading of the Planning Board's special permit decision as one authorizing an expansion of the pre-existing nonconforming restaurant use under the provisions of Article VIII, § 179-25. However, according to the agreed exhibits, Tsiareas did not apply for, and the Planning Board did not purport to grant, a special permit under Article VIII, § 179-25 to allow an expansion of a pre-existing nonconforming use. Instead, Tsiareas applied only for a COPD Special Permit under Article XII, § 179-66. Likewise, although the Planning Board's special permit findings recognize the proposed change in use as an expansion of the already existing Brewster Pizza House, the Planning Board's decision does not purport to authorize either a change or an € expansion of a nonconforming use under Article VIII. Rather, the decision purports to grant only a COPD Special Permit, and the Planning Board's findings are expressly linked to the COPD special permit criteria in Article XII, §§ 179-66 and 179-67.

Whether that COPD Special Permit was properly issued will. be decided in the next phase of this litigation. Nevertheless, a COPD Special Permit addresses only the change from one use to another, in light of the intent, purposes, and standards of the COPD concerning transportation, trip reduction, access, parking, landscaping. and appearance. A COPD Special Permit does not subsume or replace the special permit requirement specified in the Article IV Table of Use Regulations for establishing a new restaurant/lounge use in the underlying V-B District. Further, although s.179-51 of the Zoning By-law authorizes the Planning Board to consider and decide an application for such a "use" special permit in conjunction with its consideration of an application for a COPD Special Permit, there is no evidence suggesting that Tsiareas applied for a special permit under Article IV for restaurant use, and the Planning Board's decision does not purport to grant an Article IV special permit for restaurant use.

CONCLUSION

I conclude that the use of each commercial unit in a row commercial development must be either one that is permitted by right or one that is permitted by special permit in the zoning district in which the row commercial development is located. I further conclude that there is nothing in the Zoning By-law which absolutely prohibits the combination of two or more adjoining units in a Row Commercial development structure into a single commercial unit. I also agree with the Defendants' position that the Planning Board's special permit decision under appeal in Count III does not, on its face, authorize an expansion of a nonconforming restaurant use under Article VIII but, instead, only grants a COPD Special Permit. Whether that decision may be sustained as a valid COPD Special Permit remains to be adjudicated under Count III.

However, a valid COPD Special Permit, alone, is not sufficient to authorize a restaurant/lounge use of the combined Unit 26 and Unit 28 space. Additional zoning relief is necessary. Nevertheless, Tsiareas need not apply for a special permit under Article VIII and/or a use variance in order to accomplish his objective. Instead, he has the option under the Zoning By-law of abandoning the pre-existing nonconforming status of the restaurant use in Unit 28, in favor of obtaining a special permit under Article IV for establishment of a new, larger, restaurant/lounge use in the space created by combining Unit 28 and Unit 26.

Judgment on Counts I and II shall not enter at this time. The parties are hereby ORDERED to contact Sessions Clerk, Emily Rosa, within fourteen (14) days to schedule a status conference for the purpose of discussing the next steps in this litigation.

By the Court (Cutler, J.)