PAPA GINO'S OF AMERICA, INC., et al. vs. TOWN OF BEDFORD and CHARLES N. MCARTHUR, as he is the ZONING ENFORCEMENT OFFICER and INSPECTOR OF BUILDINGS for the TOWN OF BEDFORD.

This complaint was brought under the provisions of G. L. c. 240, § 14A, G. L. c. 185, § 1 (j 1/2), and also c. 231A, § 1, to determine both the validity and applicability of Section 4.5.7 of the Town of Bedford Zoning By-Law adopted April 4, 1979.

The plaintiffs, Papa Gino's of America, Inc. (Papa Gino's), Carrol's Development Corporation (Carrol's), and DeCola Corporation (DeCola), filed a complaint (later amended) on March 21, 1980, against Charles N. McArthur (McArthur) in his capacity as Zoning Enforcement Officer and Building Inspector of the Town of Bedford and against the five members of the Bedford Planning Board.

The plaintiffs alleged that Section 4.5.7 of the Town of Bedford (the town) Zoning By-Law is inapplicable to the proposed continued use of plaintiff DeCola's premises because it is a lawful preexisting nonconforming use. The plaintiffs further alleged that even if the by-law did apply to the proposed use, Section 4.5.7, which mandates that ". . . the sale of food on chinaware or beverages in glasses or china cups . . ." is required in all restaurants, is unconstitutional.

In their requests for relief in the original complaint, the plaintiffs asked that the court 1) issue a short order of notice, 2) issue a preliminary injunction restraining defendants from enforcing Section 4.5.7 of the by-law against any of the plaintiffs, 3) declare Section 4.5.7 of the by-law invalid, 4) annul the decision of defendant building inspector, and 5) order the town to allow plaintiff Papa Gino's to locate at the premises.

On April 2, 1980, the plaintiffs amended their complaint by deleting the members of the planning board as defendants and by adding the town as a defendant. The town, in open court, orally waived service of process. [Note 1] Notice of the action was delivered to the Attorney General pursuant to G. L. c. 231A. The Attorney General advised the court of his wish to be heard by letter dated April 4, 1980.

Defendants, town and McArthur, answered, neither admitting nor denying that the proposed use of the premises constituted a preexisting nonconforming use, and denying that Section 4.5.7 of the zoning by-law was unconstitutional. The defendants asked the court to declare that Section 4.5.7 of the by-law is valid.

On April 9, 1980, a hearing was held at which a stenographer was sworn to record the testimony of George Magley, Vice President of Carrol's; Gerald Moore, Director of Real Estate for Papa Gino's, and defendant McArthur, Inspector of Buildings for the Town of Bedford. The Attorney General was represented and participated in the hearing.

Before the hearing commenced, the plaintiffs, in open court and for the record, waived their challenge to the constitutionality of Section 4.5.7 of the zoning by-law, thereby narrowing the issue to whether or not the proposed use of the premises is protected by the preexisting nonconforming use provision of the by-law. The parties stipulated as follows: 1) that they reserve the right to contest at any future time the constitutionality of Section 4.5.7 of the by-law and 2) that all parties waived any and all right to appeal from this court's findings and judgments. Further, the parties agreed to the introduction into evidence of the zoning by-laws adopted April 4, 1979.

All exhibits introduced into evidence are incorporated herein by reference.

On all the evidence I find the following facts:

1. DeCola, a Massachusetts corporation, is the owner of record in fee of premises located at 310 Great Road in Bedford, Middlesex County (hereinafter "the premises").

2. The premises have been and are located in a business district (business use "LB") as defined in the zoning by-law. Other restaurants located on Great Road include a McDonald's down the street and a Dunkin Donuts shop next door. On the other side of the premises is a gas station. Across the street from the premises is a large shopping center and a motel.

3. In 1954 DeCola first applied for a permit to build a restaurant on the premises which was granted by the town on July 30, 1954 (Exhibit No. 6).

4. Restaurants operated on the premises since that date until August, 1979.

5. On March 3, 1971, the town issued a building permit to Murray and Louis DeColla (sic) (Carrol's Development Corp.) to demolish the then existing diner/restaurant and to erect a one story restaurant on the premises, which still stands as constructed (Exhibit No. 7).

6. DeCola thereafter leased the premises to Carrol's, a Delaware corporation, which commenced operation of a fast food hamburger restaurant serving food in paper wrappers and on paper dishes. Carrol's is now the lessee in possession.

7. Carrol's subsequently subleased the premises to the Family Kettle Restaurant and then to Bedford Colonial Corporation, d/b/a Georges Fine Foods & Desserts.

8. Both restaurants occupied the premises and operated under the 1971 permit.

9. Bedford Colonial Corporation ceased operation in August, 1979.

10. On April 4, 1979, the town adopted a new "Bedford Zoning By-Law" (Exhibit No. 1). Under the new by-law restaurants are permitted in LB districts only by special permit.

11. Section 4.5.7 of the new by-law allowed restaurants only:

"[w]here the principal service is the sale of food on chinaware or beverages in glasses or china cups to be consumed by persons at tables within the building and the incidental sale of food to 'take out' . . ."

12. Section 4.7.1 of the by-law prohibits "[f]ast food establishments or fast food restaurants . . ."

13. In January and February, 1980, Gerald Moore, director of real estate for Papa Gino's, negotiated the terms of an assignment and assumption of Carrol's lease for the premises, with the option to extend the 1992 termination date. Papa Gino's is prepared to become the assignee of Carrol's lease and intends to operate a restaurant on the premises. Papa Gino's does not plan to make any structural changes in the existing building but will make cosmetic changes in both the exterior and interior appearance of the existing building.

14. Papa Gino's operates approximately 90 restaurants, 65 of which are located in Massachusetts.

15. Papa Gino's serve meals to customers at tables. It does not use china or glass dishes in any of its stores. All meals are cooked to order and an average of 20 minutes elapses between the customer's placement of an order and delivery of the food. There are no exterior service windows.

16. Food is served on plastic, disposable dishes, and soft drinks are served in paper cups. Beer is served in glass pitchers and pizza is served on metal plates.

17. Approximately 15% of the food sold at Papa Gino's is "to take out," and none of the food is served for consumption on the premises outside the building.

18. By letter dated February 29, 1980, defendant McArthur, the Bedford building inspector for the past four years, denied the right of Papa Gino's restaurant to operate a restaurant on the premises relying on Section 4, Subsections 4.5.7 and 4.7.1. The letter did not refer to the nonconforming use provision of the by-law.

There was no evidence introduced to dispute Papa Gino's contention that it is not a fast food restaurant.

The court finds that the sale of food to "take out" is incidental to the restaurant's operation and rules that Papa Gino's is not a "fast food establishment or fast food restaurant" within the meaning of Section 4.7.1 of the by-law and is, therefore, not prohibited from locating in the town of Bedford pursuant to that section.

The sole question before the court, therefore, is whether or not Papa Gino's proposed use of the premises for a restaurant is protected by Section 7, Subsection 7.1.1 of the zoning by-law which allows the continuation of preexisting nonconforming uses.

The Zoning Enabling Act, G. L. c. 40A, § 6, governing zoning by-laws adopted after January 1, 1976, provides as follows:

". . . a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by section five, but shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension, or structural change of such structure and to any alteration of a structure begun after the first notice of said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent . . . [p]re-existing non-conforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing non-conforming use to the neighborhood . . ."

The town zoning by-law, Section 7, Special Provisions, subsection 7.1.1, adopted April 4, 1979, governing nonconforming uses provides that:

"[a]ny structure or use lawfully existing at the time of the adoption of this By-law or any subsequent amendment hereto, and any use or structure lawfully begun or in respect of which a building or special permit has been issued before the first publication of notice of public hearing on this By-law or any amendment hereto, may be continued or completed although such structure or use does not conform to the provisions hereof . . ."

Since 1954, when the first building permit for a restaurant at 310 Great Road was issued, there have been restaurants operated continuously on the premises except for brief interruptions caused by changes in the parties in possession. I find that the nonconforming use of the premises for restaurant purposes was not abandoned (see Paul v. Selectmen of Scituate, 301 Mass. 365 1938)).

I also find that the structure on the premises and the use thereof for restaurant purposes lawfully existed at the time of the adoption of the Bedford Zoning By-Law.

I therefore find and rule that Papa Gino's proposed use of the premises for a restaurant is substantially the same as the use of the premises at or before the adoption of the by-law and is protected by the said by-law as a lawful preexisting nonconforming use.

Judgment to enter accordingly.