COMAR REAL ESTATE TRUST by JAMES A. COHEN, JEFFREY J. COHEN and JAMES B. MARCUS, Trustees vs. CITY OF SOMERVILLE, PLANNING BOARD OF THE CITY OF SOMERVILLE,

INTRODUCTION

In this action, James A. Cohen, Jeffrey J. Cohen and James B. Marcus, as trustees of Comar Real Estate Trust ("the Trust"), challenge decisions of the City of Somerville ("the City") Building Inspector ("the Building Inspector") and the City's Planning Board ("the Board") made in 2010 with respect to the Trust's proposed lease of property owned by it at 299 Broadway, Somerville, Massachusetts ("299 Broadway") to Ocean State Job Lot of MA2009, LLC ("OSJL"). The procedural history of this case is set forth below. The matter is before the court on the parties' cross-motions for summary judgment, limited to the issues remaining after remand from the Appeals Court that are not moot. For the reasons also set forth below, this court finds that, on the undisputed facts, the preexisting nonconforming use of 299 Broadway was not discontinued and that the determination as to whether a timely presented successor's proposed use is a change or substantial extension of the prior nonconforming use will be made by applying the principles set forth in Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973).

PROCEDURAL HISTORY

This action was commenced with the filing of a complaint ("the Complaint") on September 28, 2010. The Complaint asserted four counts: (1) that the Building Inspector's requirement of zoning approvals for OSJL was erroneous because the proposed use was the continuation of a prior nonconforming use not subject to zoning approval; (2) that the Board's decision to deny the Trust's application for a special permit for OSJL's use was arbitrary and capricious for a variety of reasons set forth in the Complaint; (3) that the City's zoning ordinance, insofar as it resulted in the denial of a building permit and the denial of a special permit for OSJL's use, was invalid and unenforceable; and (4) that the actions of the Building Inspector and the Board in denying the building permit application and the special permit constituted a taking of the Trust's property without just compensation. After the close of discovery, the parties filed cross-motions for summary judgment and a hearing was held on March 14, 2012.

A decision and judgment entered on September 5, 2013, in which the court (Cutler, J.) found in favor of the City and against the Trust on Count I, because the Trust had failed to exhaust its administrative remedies by appealing the Building Inspector's denial of the building permit application; on Count II, because (a) a special permit was required, the preexisting nonconforming status having expired prior to the Trust's application for a building permit for OSJL, and (b) the Board's denial of the special permit application was lawful; on Count III, because the City's zoning ordinance was neither invalid under the Commerce Clause nor unlawful spot zoning; and on Count IV, because the Trust did not produce any evidence or argument supporting its takings claim. The Trust appealed.

In a decision dated March 26, 2015, the Appeals Court determined that, to the extent that the Trust sought relief pursuant to G.L. c. 240, §14A, rather than G.L. c. 40A, exhaustion of administrative remedies was not required. Cohen v. City of Somerville, 2015 Mass. App. Unpub. LEXIS 246 at *6-8. The Appeals Court further found that there were disputes of material fact (1) as to whether the change from a supermarket use to the use proposed by OSJL constituted a change or a substantial extension of a prior nonconforming use and (2) as to whether 299 Broadway's status as a preexisting nonconforming use had lapsed by virtue of the passage of two years. The Appeals Court vacated this court's judgment as to Counts I through III, but only as to the potential preexisting nonconforming use issues on Counts II and III. Id. at *14 n. 14. It affirmed the judgment as to Count IV. Id. at *14. A rescript issued on November 4, 2015.

On remand, after a number of false starts aimed at holding a trial, submitting the case to the court on a case stated basis, and holding a trial on limited issues, by order dated April 5, 2018, the court (Cutler, J.) directed the parties to file cross-motions for partial summary judgment to resolve what the court described as the central issue on remand: in what manner did the City's zoning ordinance affect the use of the Trust's property for retail business? More particularly, the court described the issues as (1) whether the grandfather protection of §6 was limited to the supermarket use that existed in 1990, or whether that protection extended to other types of retail and service uses; (2) whether the grandfather protection was lost through discontinuance of use when more than two years passed after supermarket operations ceased or whether instead (a) certain actions by the Trust during that period were sufficient to avoid the conclusion that the use was discontinued or (b) the running of the two year period was stayed when the City imposed a temporary moratorium on the issuance of building permits during that period. The court also identified as a third issue, if it concluded that the moratorium did not interrupt the two-year period, whether any attempt to reinstate a retail business would have been futile because City officials rejected the Trust's building application based on the existence of a moratorium.

A hearing on plaintiff's motion for partial summary judgment and defendant's cross-motion for summary judgment was held on August 13, 2018 and taken under advisement. At a January 3, 2019 status conference, the court (Cutler, J.) denied those motions from the bench on the grounds that the record was inadequate to resolve the matter on summary judgment and determined that a trial would be required. The court notified counsel that a new judge would be assigned and a pretrial conference date scheduled thereafter.

The matter was reassigned to the undersigned on April 1, 2019. At a status conference on June 14, 2019, and after extensive discussion regarding the background of this matter and the fact that OSJL was no longer a proposed tenant for 299 Broadway, the court requested that the parties consider whether they could agree on one or two issues that, if decided, would effectively resolve the parties' disputes. At a further status conference on July 15, 2019, the parties both asserted that, with supplementation of the record to address gaps identified by the court in its 2019 denial of the earlier cross-motions for summary judgment, this matter could be resolved on summary judgment.

On January 13, 2020, the Trust filed both a motion for partial summary judgment and a motion to amend the complaint, in which the Trust proposed to delete Count IV (the previous disposition of which has been upheld by the Appeals Court) and claims under G.L. c. 40A, §17, and to add tort claims for deceit and intentional interference with advantageous relations. On February 26, 2020, the Trust filed a motion for leave to file a second amended complaint, assented to by the defendants, which also sought to delete Count IV and claims under G.L. c. 40A, §17, but did not assert tort claims and added a new Count IV, seeking a declaration as to the impact of a moratorium on the two year period for protecting a preexisting nonconforming use from being deemed abandoned. That motion was denied on the grounds that it came too late in the proceedings. As a result, the claims presently before the court are those set forth in the original complaint left standing after the Appeals Court's decision.

Plaintiff filed Plaintiff's Amended Motion For Partial Summary Judgment and supporting papers on February 26, 2020. Defendants filed Defendants' Cross-Motion For Partial Summary Judgment and Defendants' Opposition To Plaintiff's Amended Motion For Partial Summary Judgment on March 5, 2020. Plaintiff's Memorandum In Opposition To Defendants' Cross- Motion For Partial Summary Judgment And In Reply To Defendants' Opposition To Plaintiff's Amended Motion For Partial Summary Judgment was filed on March 19, 2020. Because of the COVID-19 emergency, the parties agreed that the court could issue a ruling on the papers without a hearing. This memorandum of decision follows.

UNDISPUTED FACTS

The following facts have been agreed to by the parties in their Amended Joint Statement Of Agreed Material Facts And Exhibits On Cross-Motions For Partial Summary Judgment ("AJSAMF") and are deemed admitted or are undisputed.

1. The Trust is the owner of 299 Broadway. AJSAMF ¶ 2.4.

2. 299 Broadway is an approximately 96,886 square foot lot with a 27,132 square foot one-story structure built in 1967 and was used as a supermarket in accordance with the original building permit. AJSAMF ¶¶ 2.9, 2.16.

3. According to the Planning Staff Report, the property is a "single-tenant, single-use building that turns a blank side to Broadway, and provides no complement to historic development pattern in the surrounding residential neighborhood which consists of small storefronts that open onto the sidewalk." AJSAMF ¶ 2.9.

4. From 1967 until February 2008, 299 Broadway was occupied by Star Market. AJSAMF ¶ 2.10.

5. 299 Broadway was a legally conforming use, AJSAMF ¶¶ 2.6, 2.33-2.34, and a legally conforming structure in 1967. AJSAMF ¶¶ 2.17, 2.35.

6. 299 Broadway became a preexisting legal nonconforming use as of March 23, 1990, when the City adopted an amendment to its zoning ordinance. AJSAMF ¶ 2.22.

7. 299 Broadway became a preexisting nonconforming structure as of the same date, when the 1990 amendment to the zoning ordinance altered setback requirements. AJSAMF ¶ 2.23.

8. Star Market closed and vacated 299 Broadway at the end of January 2008. AJSAMF ¶ 2.36.

9. Star Market ceased its operations on January 31, 2008. AJSAMF ¶ 2.54.

10. Star Market obtained a building permit for the removal of its store fixtures on February 1, 2008. AJSAMF ¶ 2.31.

11. On May 30, 2008, OSJL signed a letter of intent to lease 299 Broadway, which a representative of the Trust also executed on June 4, 2008. App. Ex. 9 ¶ 5.

12. After a meeting between representatives of OSJL and the Mayor of the City, OSJL terminated its commitment to the Trust to rent 299 Broadway. App. Ex. 9 ¶ 11.

13. On July 17, 2008, the Board advertised a public hearing on Ordinance 2008-15: an ordinance amending the zoning ordinance of the City with respect to Article 6, temporarily limiting development for the following parcels located in the vicinity of Broadway and Temple Street (identified by Map-Block-Lot): 58-C-6, 58-C-7, 58-C-8, 58-C-9, 70-D-5, 70-D-10, 70-D-24, 70-D-25, and 70-D-27, otherwise known as the Winter Hill area of Broadway, to enable a zoning study. App. Ex. 17.

14. A joint public hearing by the Board and the Board of Aldermen Land Use Committee ("the Board of Aldermen") was held on July 17, 2008 and a public meeting was held on August 7, 2008. Id.

15. On October 7, 2008, the Board of Alderman approved a moratorium on the issuance of any "building permit, site plan approval, special permit, special permit with design review, special permit with site plan review, variance, or other permit" for all properties within an overlay district that included 299 Broadway. AJSAMF ¶ 2.29 and App. Ex. 2.

16. Ordinance 2008-15 amended Article 6, section 6.1.21 by adding the following provisions, among others:

Section 6.1.21.A., which states that "[t]he purpose of the Moratorium is to provide a temporary period of limited development in this strategically located area while the City engages in planning studies of the area to address its long-term growth consistent with transit-oriented land use goals and objectives and to allow time while doing so to update the Zoning Laws."

Section 6.1.21.C, which states that, "[f]or the period established under section 6.1.21.D, no building permit, site plan approval, special permit, special permit with design review, special permit with site plan review, variance, or other permit (collectively, "permit" or "permits") may be issued for any structure(s) or use (s) within the area described in Section 6.1.21.B," provided that "permits or other relief may be granted in accordance with the terms of the Zoning Ordinance for the following:

a. Development exempted by MGL c.40A, Section 3;

b. Repairs and maintenance of existing structures;

c. Interior or exterior alterations so long as there is neither an increase in gross floor area nor a change in use from one category to another as listed in Section 7.11; and

d. Emergency work necessary for the protection of health and safety, as determined by the Building Official."

Section 6.1.21.D, which states that "[t]he provisions of this Section 6.1.21 shall expire six months from the Effective Date of the ordinance; provided, however, that, following notice and hearing as required under SZO Section 3.3.3, the moratorium may be extended for an additional period to continue planning studies necessary to promote orderly development in the City of Somerville."

Section 6.1.21.E, which states that "[a]pplications for permits submitted on or after the date of the first publication ("Publication Date") of notice of the public hearing that results in the adoption of this moratorium are not protected. In accordance with G.L. c. 40A, s. 5, the effective date ("Effective Date") of the moratorium shall be the date on which the Board of Alderman votes to adopt the moratorium. Permits granted on or after the Publication Date but before the Effective Date shall be subject to revocation, and reliance on any such permit shall be at the peril of the recipient. From and after the Effective Date until the expiration of the moratorium period, as extended, applications for permits . . . shall be denied on the basis of this moratorium. In no event shall any permit applied for on or after the Publication Date and during the moratorium period, as extended, create or result in any protections for an applicant, including without limitation, any protected status with respect to land, uses, or structures.

App. Ex. 17.

17. The moratorium was in effect for six months, until April 7, 2009. Id.

18. Advertisements for a hearing to extend the moratorium were published on April 1 and April 8, 2009, and the hearing was held on April 30, 2009. App. Ex. 2.

19. On June 11, 2009, the Board of Alderman approved the extension of the moratorium by 60 days, to August 10, 2009. App. Ex. 2.

20. On October 21, 2009, public notice of the Broadway rezoning public hearing was published. App. Ex. 2.

21. Meanwhile, in March 2009, OSJL renewed its interest in 299 Broadway and executed a letter accepting the Trust's offer to rent. App. Ex. 9 ¶ 12.

22. On October 23, 2009, the Trust entered into a lease with OSJL to operate an OSJL retail store at 299 Broadway. AJSAMF ¶ 2.24.

23. On November 5, 2009, the Board and the Board of Alderman held a joint public hearing on an ordinance to amend the zoning ordinance and to address, among other things, an amendment to the Corridor Commercial District and the Transit Oriented District. App. Ex. 2.

24. OSJL filed an application for a building permit that identified the existing and proposed uses as "mercantile." AJSAMF ¶¶ 2.42-2.43.

25. OSJL is a general merchandise retail store, selling different products for end use by consumers and businesses. AJSAMF ¶ 2.26.

26. The merchandise sold at OSJL includes food and household products that are sold in supermarkets, although the food products sold are generally shelf stable products such as pasta, tomato sauce, grains, and vinegars. Id.

27. According to the Affidavit Of Heath Parker, sworn to on May 15, 2017, he is a former OSJL facilities manager who attempted to file OSJL's building application with the City's Building Department in January 2010 but was rejected at that time, purportedly because of the moratorium. App. Ex. 12.

28. The building permit application was accepted on February 4, 2010. AJSAMF ¶ 2.44.

29. On February 10, 2010, the previously noticed Broadway rezoning amendment was approved. App. Ex. 2.

30. The building permit application was denied by the Building Inspector on February 22, 2010 on the grounds that a special permit was required. Id.

31. The Building Inspector's denial was accompanied by a cover letter of the same date stating that the "application to convert a supermarket to a general merchandise store" required the following zoning approvals: use, §7.13K; rear yard setback, §8.5I; side yard setback, §8.5H; and signage/façade alteration, §6.1.22.D.5.

32. The Trust filed an application for a special permit in February 2010 in which the application stated that the existing use and the proposed use were both "Large Retail and Service." AJSAMF ¶ 2.47.

33. OSJL proposed to use the existing structure with the same area footprint as had been used by Star Market with no increase in gross floor area. AJSAMF ¶ 2.48.

34. OSJL is no longer a proposed tenant for 299 Broadway (representation by plaintiff's counsel to the court on June 14, 2019).

The Relevant By-Law Provisions

The 1960 Somerville zoning ordinance ("1960 SZO") was in effect when 299 Broadway was built. AJSAMF ¶ 2.1. Section 8-1 of the 1960 SZO divided the City into seven classes of districts, including BA Business Districts in which 299 Broadway is located. AJSAMF ¶ 2.4; App. Ex. 1, Sec. 8-1. Article V, governing regulation of uses, provides at sec. 9-1 that

Conformity of Buildings and Land. Except as provided in this Ordinance, no building, structure, or land shall be used or occupied and no building, or part thereof, or other structure, shall be erected, reconstructed, extended, enlarged, or altered, except in conformity with the regulations herein specified for the district in which it is located (as shown on the Official Zoning Map).

The Table Of Use Regulations set forth at sec. 10.3 includes a subsection regulating "Retail Business or Service Establishments," subsec. 8, that allows for the "[r]etail sale of merchandise, where all display and sales are conducted within a building, and where no manufacturing or processing occur on the premises" in BA Business Districts. Article V, sec. 11, governing nonconforming uses, provides at sec. 11-5:

Abandonment. A non-conforming use of a building or land which has been abandoned shall not thereafter be returned to such non-conforming use. A non-conforming use shall be considered abandoned when the intent of the owner to discontinue the use is apparent, or when the characteristic equipment and the furnishings of the non-conforming use have been removed from the premises and have not been replaced by similar equipment within one year, unless other facts show intention to resume the non-conforming use.

The City amended its zoning bylaw in 1977 ("1977 SZO"). Under the 1977 SZO, 299 Broadway continued to be located in a BA Business District in which the designation as a "Retail Business or Service Establishment" and the classification of "Retail [s]ale of merchandise where all display and sales are conducted within a building and where no manufacturing or processing occur on the premises" allowed the continued use of 299 Broadway as a supermarket as of right. AJSAMF ¶ 2.19.

The City again amended its zoning bylaw in 1990 ("1990 SZO"). The 1990 SZO created seventeen classes of districts, including the BA-Commercial District in which 299 Broadway is located. 1990 SZO, Art. 6, §6.1.6; AJSAMF ¶ 2.21. As it relates to 299 Broadway, the Table Of Permitted Uses in the 1990 SZO, §7.11, included a subsection regulating "Sales Or Rental Of Goods Or Equipment" that allowed for "general merchandise, department store, [or] supermarket" with 10,000 square feet or more of gross floor area by special permit with site plan review in the BA district. Art. 7, §7.11.9.2. This is the provision that caused 299 Broadway to become a legally nonconforming use. AJSAMF ¶ 2.22. The 1990 SZO also revamped the provision regarding abandonment of nonconforming uses. Art. 4, §4.5.2, governing abandonment of nonconforming uses, provides:

A nonconforming use of a building or land which has been abandoned shall not thereafter be returned to such nonconforming use. A nonconforming use shall be considered abandoned when:

a. The building or use is abandoned or not used for a period of two (2) or more years; or

b. When the characteristic equipment and the furnishings of the nonconforming use have been removed from the premises and have not been replaced by similar equipment within two (2) years.

The record reflects that the zoning bylaw was amended again on February 11, 2010 ("2010 SZO"). [Note 1] This amendment created two new zoning classifications in the Corridor Commercial District, including the CCD-55 district in which 299 Broadway is located. AJSAMF ¶ 2.30. "Large Retail and Service (more than 10,000 net square feet)" are permitted in the Corridor Commercial District. All of the uses listed in the Table Of Use Clusters for large retail and service establishments, including general merchandise, department store and supermarket, require a special permit to establish or expand the use.

SUMMARY JUDGMENT STANDARD

Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). Where both parties have moved for summary judgment, the evidence is viewed "in the light most favorable to the party against whom judgment is to enter." Eaton v. Federal National Mortgage Association, 93 Mass. App. Ct. 216 , 218 (2018), quoting Albahari v. Zoning Board of Appeals of Brewster, 76 Mass. App. Ct. 245 , 248 n.4 (2010). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

DISCUSSION

The Appeals Court left open two issues: whether 299 Broadway's status as a prior nonconforming use had been lost because the use was dormant for more than two years; and whether OSJL's proposed use of 299 Broadway constituted a change or substantial extension of the prior nonconforming use such that the grandfather protection of §6 was lost. The parties' motions for summary judgment addressed the former issue as framed by the Appeals Court. With respect to the latter, the parties framed the issue as one of law untethered from OSJL's proposed (and no longer extant) use: whether a new use is a change or substantial extension of the prior nonconforming use based on the use categories contained in the 1960 SZO in effect when 299 Broadway was constructed, as argued by the Trust, or based on an analysis of the prior and proposed uses under Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973), as argued by the defendants. Each issue is addressed in turn.

Abandonment

The Appeals Court rejected this court's conclusion that 299 Broadway's status as a preexisting nonconforming use had been lost because of a period of non-use for two or more years. Cohen, 2015 Mass. App. Unpub. LEXIS 246 at *12-13 n.12. As the Appeals Court noted, "[i]t is undisputed that between January of 2008 and January of 2010 a supermarket with more than 10,000 square feet of retail space was not operating on the property." Id. at *12 n.12. However, as the Appeals Court also noted, "neither the parties nor the judge identified when the use as a supermarket became a nonconforming use." Id. As a result, the Appeals Court was unable to conclude when the two-year period of non-use began to run, an undecided question susceptible of two interpretations if a previously conforming use became dormant within two years of the zoning change rendering the use nonconforming: "It could begin to run at the time the ordinance that makes it nonconforming becomes effective. Alternatively, it could be that since the property was not actively being used in 2010, there was no prior nonconforming use when the relevant ordinance was passed." Id. at *12-13 n.12. "In the absence of any briefing on the issue or an undisputed fact concerning when the use became nonconforming, and because we cannot conclude as a matter of law whether the use has been discontinued or abandoned, we do not decide this issue." Id. at *13 n.12. On the record now before the court, the issue can be resolved.

The parties agree that 299 Broadway became a preexisting nonconforming use as of March 23, 1990, when the City adopted an amendment to its zoning ordinance. AJSAMF ¶ 2.22. Accordingly, the Appeals Court's concern about a use that became nonconforming at the time of or within two years of the enactment of a new zoning ordinance and also became dormant within that period is not triggered here. 299 Broadway had been a preexisting nonconforming use for nearly 20 years when the 2010 SZO was enacted. The period of nonuse ran from January 2008 to January 2010. As a result, the issue becomes whether, under the 1990 SZO, the use was "abandoned or not used for a period of two (2) or more years." Notably, the defendants concede that the Trust did not abandon the use during that period. [Note 2] The defendants also concede that "[i]f the Court concludes that the Plaintiff attempted to file a complete application for a permit to reinstate occupancy as an OSJL prior to January 31, 2010 and a duly authorized agent of the building department refused to accept the application, then the Defendant acknowledges that there has been no discontinuance." Cross-Motion at 8. Based on the undisputed facts in the record, the court so finds. [Note 3]

Mass. R. Civ. P. 56(e), which is applicable here, provides in pertinent part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

"'Bare assertions and conclusions'" based on "'understandings, beliefs, and assumptions are not enough to withstand a well-pleaded motion for summary judgment.'" Benson v. Massachusetts Gen. Hosp., 49 Mass. App. Ct. 530 , 532 (2000), quoting from Polaroid Corp. v. Rollins Envtl. Servs. (NJ), Inc., 416 Mass. 684 , 696 (1993).

Eaton v. Federal National Mortgage Association, supra, relied upon by the Trust, is on point. There, one of the issues on summary judgment was whether the foreclosing mortgagee had physical possession of the note at the time of the foreclosure. 93 Mass. App. Ct. at 219. The mortgagee provided affidavits from representatives of the mortgagee's document custodians based upon the personal knowledge of those individuals and their review of business records kept in the usual course of their respective employers' businesses. Id. One affidavit established that the custodian retained physical custody of the note from on or about July 10, 2009, months before the November 2009 foreclosure, until October 4, 2013, when the note was transferred to the second custodian. Id. at 219-220. The affidavit of the representative of the second custodian confirmed the first custodian's prior possession of the note and its October 2013 transfer to the second custodian. Id.

Over the mortgagor's objection, the Appeals Court determined that the two affidavits, based on the personal knowledge of the affiants, passed muster: "'The affidavits[s] [were] made on the basis of personal knowledge of the . . . practices of the parties as well as a review of business records and it was sufficient.'" Id. at 220 (brackets in original), quoting First National Bank of Cape Cod v. North Adams Hoosac Sav. Bank, 7 Mass. App. Ct. 790 , 791 (1979). Having found the mortgagee's affidavits sufficient, "Eaton was required to offer affidavits or other record evidence setting forth specific facts showing that the absence of contemporaneous documentation created a genuine issue of material fact as to possession of the note during the relevant time period." Eaton, 93 Mass. App. Ct. at 220-221. However, Eaton "offered no evidence that the lack of contemporaneous documentation violated Fannie Mae policy, industry practice, or legal or regulatory requirements, or was in some other way suspect." Id. at 221. As a result, the Eaton court concluded that summary judgment was properly granted with respect to the issue of possession of the note. Id. at 224.

Here, the record contains the January 3, 2020 affidavit of Heath Parker ("Mr. Parker"). App. Ex. 12. In 2009 and 2010, Mr. Parker was a facilities manager for OSJL and was involved in the planning process for 299 Broadway after OSJL signed a lease for that site. App. Ex. 12 ¶¶ 3, 5. OSJL retained Cirees, Inc. to prepare a set of plans for the site upon which a building permit could issue. App. Ex. 12 ¶ 10. The plans, copies of which are attached to Mr. Parker's affidavit, consist of 20 sheets bearing dates between December 11, 2009 and January 12, 2010. App. Ex. 12. According to Mr. Parker, after he received the plans, and before the end of January 2010, he went to the Building Department for the City to file an application for a building permit for the work proposed by OSJL at 299 Broadway. App. Ex. 12 ¶ 11. Again according to Mr. Parker, "[a] Building Department employee at the desk refused to accept the application, telling me that the Department was not accepting any applications because there was a moratorium in place." Id.

In the face of Mr. Parker's affidavit, made on his personal knowledge about events in which he was personally involved, the defendants were required to come forward with countervailing evidence. There is none: no affidavit from anyone at the Building Department with personal knowledge of the event described by Mr. Parker; no affidavit from anyone at the Building Department as to the department's policies, rules or general practices with respect to building permit applications at this time that would contradict Mr. Parker's description of events; no affidavit from a custodian of the department's records as to what those records reveal. Instead, without citation to admissible evidence, the defendants assert in their brief that "[t]here is no document from the building department supporting his claim." Cross-Motion at 8. Rule 56 requires more to show a dispute of material fact.

Analytical Framework For Determining Changes In Pre-Existing Nonconforming Uses

The Trust argues that, in determining whether a successor to Star Market at 299 Broadway is a continuation of a preexisting nonconforming use, the analysis is based upon the use categories contained in the SZO in effect when Star Market commenced its use of the site or in the SZO when Star Market's use became nonconforming. [Note 4] The defendants argue that whether a successor's use is a continuation of the prior nonconforming use is based on an analysis of the use actually made of the premises under Powers v. Building Inspector of Barnstable, supra, not on the classifications or use categories contained in the applicable zoning ordinance.

In this case, the issue has already been resolved by the Appeals Court:

The plaintiffs argue that it was error to require them to obtain a special permit for changing the use of the building from the prior existing nonconforming use as a supermarket over 10,000 square feet to an Ocean State Job Lot store over 10,000 square feet. To determine if there is a "change or substantial extension" of a prior nonconforming use, we apply a three-part test. "Under that test, we inquire: (1) 'Whether the [current] use reflects the 'nature and purpose' of the [prior] use,' (2) 'Whether there is a difference in the quality or character, as well as the degree, of use,' and (3) 'Whether the current use is 'different in kind in its effect on the neighborhood.'" Derby Ref. Co. v. Chelsea, 407 Mass. at 712, quoting from Bridgewater v. Chuckran, 351 Mass. 20 , 23 (1966). As the party seeking protection under the preexisting use status, the plaintiffs have the burden of establishing compliance with the test. Ibid.

Cohen, 2015 Mass. App. Unpub. LEXIS 246 at *8 (brackets in original). Having set forth the applicable standard, the Appeals Court could not apply it here because "there are not undisputed facts that establish as a matter of law that using the property as an Ocean State Job Lot store is a change in the use of the property as a Star Market." Id. at *11.

The problem now, of course, is that OSJL has long since abandoned its plans to renovate and use 299 Broadway as the site of one of its stores. As a result, the issue of whether its use would be a continuation or an extension of a preexisting use is moot. As stated by the Supreme Judicial Court in Wolf v. Commissioner of Public Welfare, 367 Mass. 293 , 298 (1975):

Courts decline to hear moot cases because (a) only factually concrete disputes are capable of resolution through the adversary process, (b) it is feared that the parties will not adequately represent positions in which they no longer have a personal stake, (c) the adjudication of hypothetical disputes would encroach on the legislative domain, and (d) judicial economy requires that insubstantial controversies not be litigated.

This case does not present a proper circumstance for making an exception to that rule. See Commonwealth v. Teixeira, 475 Mass. 482 , 488 (2016) ("it is within the discretion of this court to answer questions that, due to circumstances, no longer may have direct significance to the parties but raise issues of public importance and, because of their nature, may be 'capable of repetition, yet evading review.'"). Accordingly, the analysis will have to await the circumstance, should it arise, of a new successor to Star Market timely seeking a continuation of Star Market's preexisting use.

CONCLUSION

Based on the undisputed facts and for the foregoing reasons, on the issues remaining after the Appeals Court's decision, the parties' cross-motions for summary judgment are ALLOWED IN PART and DENIED IN PART. Counts I and II of the complaint, seeking to invalidate the decisions of the Building Inspector and the Planning Board with respect to the OSJL application, are dismissed as moot. On Count III, seeking a determination as to the applicability of the 2010 SZO to 299 Broadway, judgment shall issue declaring that the preexisting nonconforming use was not discontinued by virtue of nonuse between January 2008 and January 2010 and that applicability of the 2010 SZO to any successor use will be governed by the three-part Powers test.

SO ORDERED.