DANIEL Y. FAN vs. KATE CLARK FLORA, O. MARIO FAVORITO and GERALD C. VIGNERON, as they comprise the BOARD OF APPEALS OF THE TOWN OF CONCORD.

The plaintiff Daniel Y. Fan seeks to open a restaurant which the public generally would be invited to patronize in a limited business district in the Town of Concord in the County of Middlesex. Upon denial by the Building Inspector and the Board of Appeals (the "ZBA") of his application for a building permit, he appealed to this Court pursuant to the provisions of G.L. c. 40A, §17. The plaintiff rests his claim on §6 of said Chapter 40A and the comparable provisions of the Concord Zoning By-law in which the continuance of a nonconforming use is recognized. The defendant ZBA denies that the previous use of the property was nonconforming and alleges that it was a permitted accessory use.

The case was presented to the Court on an agreed statement of facts, on a view of the proposed restaurant site and the building in which it would be located, as well as the immediately adjacent neighborhood and on arguments by counsel on Thursday, October 11, 1990.

On all the evidence including the agreed statement of facts [Note 1] (paragraphs 1 to 19 inclusive) which is set forth in full below I find and rule as follows:

"1. The Plainiff, Daniel Y. Fan, resides at 38 Weld Hill Street, Jamaica Plain, Suffolk County, and has entered into a lease with the Trustee of Two Concord Monument Realty Trust u/d/t dated April 5, 1988 with regard to a certain portion of the premises located at 34 Monument Square in said Concord (the "Premises").

2. The Town of Concord is located in Middlesex County, and the address of the Concord Board of Appeals (the "Board") is: Town House, Concord, MA., 01742.

3. The Defendants, as they are members of the Board, constitute the Zoning Board of Appeals of the Town of Concord in accordance with M.G.L. ch. 40A section 12.

4. On September 21, 1989, the Plaintiff filed an application (the "Application") for a building permit (the "Permit") to be exercised on the Premises for the alteration of' an existing cafeteria (the "Cafeteria") which the Plaintiff intended to operate as a restaurant after the completion of the proposed improvements. . . .

5. By letter to the Plaintiff dated September 27, 1989, the Building Inspector denied the Application for the reasons stated therein. . . .

6. The Plaintiff filed a timely appeal of the foregoing denial by the Building Inspector to the Board on October 21, 1989. . . .

7. The Board voted to deny the Plaintiffs' [sic] appeal and to sustain the decision of the Building Inspector on November 15, 1989 and filed its decision (the "Decision") with the Concord Town Clerk on November 30, 1989. . . .

8. On December 14, 1989, the Plaintiff filed an appeal of the decision of the Board to the Land Court, and the Plaintiff has complied with all of the procedural requirements of M.G.L. ch. 40A sec. 17 and otherwise such that this matter is properly before the Court for decision on the merits.

9. The Plaintiff is an aggrieved person within the meaning of M.G.L. ch. 40A section 17 in that his application for a building permit has been denied by the Building Inspector and this denial has been sustained by the Board.

10. The Premises are located in the Limited Business #3 district established under Sec. 2.1 of the Town of Concord Zoning Bylaw (the "ZBL"), and the uses permitted therein are shown in Table I (Principal Use Regulations) of the ZBL . . . .

11. The Limited Business #3 district was established in March, 1959.

12. A restaurant is not currently a "permitted use" in the Limited Business #3 district.

13. Under the zoning in effect prior to March, 1959, the Premises were located in a zoning district in which a restaurant was a permitted use.

14. There has been a "Lunch and Recreation Room" located on the Premises since at least September 11, 1950. . . .

15. At the time the Plaintiff filed the Application the Cafeteria remained in existence and such use was not in violation of the ZBL.

16. At the time the Cafeteria use was established, neither Sec. 5.3.12 (adopted in 1988) . . . nor its predecessor, Sec. 5.1.8 (adopted in 1971) . . . providing for lunchrooms or cafeterias as secondary or accessory uses were in effect. [Note 2]

17. Limited Business #3 district was established in March, 1959.

18. The Cafeteria was in daily use serving meals to employees of the Sentry Insurance Company through November, 1987 and remains unaltered and in functioning order as of the date hereof.

19. Sec. 1.3.1 of the ZBL defines "Abandoned, abandonment" as "The visible or otherwise apparent intention of an owner or occupant to discontinue or abandon a particular nonconforming use or structure, including, but not limited to, such actions as removal of equipment or furnishings customarily incident to a particular use without their immediate replacement, or the replacement of a nonconforming use or structure with a conforming use or structure."

20. The building in which the premises are located formerly was the headquarters of Sentry Insurance Company which has moved to another location. The premises are located in the basement, and there is direct access to them from a side street. There also is hanicap and other access through a side entrance to the buildng and existing elevators. The office building of which the premises form a part appears now to be of a mixed use.

21. The limited business district #3 is comprised only of the Town House (i.e., the Concord Town Hall), the Sentry office building and an adjacent funeral home. Across a side street from the district is situated St. Bernard's Church, the parking lot of which is rented by the present owners of the insurance building. The village green is across the main street with its minuteman statue, and at the far end of the green is a local inn with a restaurant. The latter is situated in a different zoning district and in any event presumably predated the adoption of zoning in Concord.

22. The principal ground for denial of relief to the plaintiff as set forth in the decision of the Zoning Board of Appeals was that the premises were not a pre-existing nonconforming principal use called a restaurant, but rather a permitted accessory use called a lunchroom, or a cafeteria for use by employees of the insurance company. The decision recited that "To allow such an accessory use to be the rationale for allowing a prohibited restaurant use to open in limited business district #3 will be clearly contrary to the plain meaning of the Zoning By-Law."

23. The present zoning by-law in Section 4.5.4 defines restaurant as follows:

Restaurant: Restaurant, cafeteria, lunchroom or similar establishment whose principal business is the sale of prepared foods or beverages and whose principal method of operation includes either (1) service by a restaurant employee to a table or counter where the food or beverage is consumed, or (2) a cafeteria-type operation where foods and beverages are consumed within the restaurant building.

The plaintiff argues that when the first zoning by-law was adopted in Concord in 1950, the plaintiff's predecessor in title was conducting a restaurant in the building at which the premises are a part, that when the zoning by-law was adopted in 1959, there was no provision for a restaurant in the neighborhood and that the use became nonconforming. Ultimately in 1971 the zoning was changed again to permit as an accessory use "[l]unchrooms and cafeterias operated primarily for the convenience of employees shall be permitted as accessory uses in all Commercial and Industrial districts, provided that there shall be no exterior advertising." Limited business district is a commercial district as defined in the ZBL.

The plaintiff argues that the zoning by-law by defining restaurants as including cafeterias and lunchrooms treats the various forms of eateries similarly and that the operation of the cafeteria prior to 1959 when restaurants generally no longer were a permitted use in the limited business district #3 rendered the use nonconforming. The plaintiff further argues that the use continually was protected even though in 1971 the zoning by-law was amended to authorize employee cafeterias which indeed is the use that has been made of the premises (or a related portion of the building) since 1950. The ZBA conversely argues that the premises lost their nonconforming nature in 1971 when cafeterias for employees became a permitted accessory use, that the use made by the plaintiff's predecessor was never the principal use of the building and that the plaintiff does not have the benefit of the provisions of G.L. c. 40A, §6 which protect a continuance of a nonconforming use.

I have concluded that the ZBA's argument must prevail legally. It is true that the premises were initially nonconforming in the period from 1959 to 1971, but with the 1971 amendment the cafeteria, admittedly for employees, became a permited accessory use to the principal use of an office building, that the restaurant, whether a sit-down, cafeteria or lunchroom, was never the principal use of the premises, and that the decision of the Zoning Board of Appeals must be sustained. Moreover, there would be a close question if the plaintiff could be found to be within the enveloping protective net of §6 of Chapter 40A since a restaurant for patrons generally is obviously different in many ways, including its impact on the surrounding neighborhood, than one for employees who, in any event, are already at the location. I do not, however, reach this question since I find that the ZBA was correct in finding that a restaurant was never a principal use of the premises. Each side has quoted Town of Foxborough v. Bay State Harness Horseracing and Breeding Association, Inc., 5 Mass. App. Ct. 613 (1977), in support of its position. This decision upheld the defendant's right to conduct a flea market in the parking lot of the racetrack and considered at some length the interaction of principal and accessory uses, but it is not helpful in deciding the question before the Court. Of greater assistance is the decision of the Appeals Court more recently in the case of Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527 (1990), where the court discussed the question of nonconformity where the use in which the plaintiff wished to engage commenced after the adoption of the zoning by-law and was permitted through the grant of variances. The Appeals Court decided that the plaintiff's use of the premises had never been nonconforming. In the present case the use of the premises as a cafeteria for employees was indeed nonconforming for a lengthy period of time, but it became conforming when the zoning by-law was amended in 1971 to recognize an employee lunchroom as an accessory use. This indeed is the purpose for which the premises were used. They never were open to the public generally, and they never formed a principal use of the building. The principal use was as an insurance company headquarters; a cafeteria was ancillary to the company's primary business. When the zoning by-law was amended to recognize such uses, the nonconformity was lost, and it cannot now be resurrected.

On all the evidence therefore I find and rule that the decision of the Zoning Board of Appeals was correct, that the use made by the plaintiff is not protected as a nonconforming use and that the decision of the Board was not arbitrary, capricious, whimsical or based on a legally untenable ground.

Judgment accordingly.