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,

Plaintiffs James A. Cohen, Jeffrey J. Cohen and James B. Marcus, as trustees of Comar Real Estate Trust ("the Trust"), filed its complaint ("the Complaint") on September 28, 2010 to challenge decisions by the City of Somerville ("the City") Building Inspector ("the Building Inspector") and the City's Planning 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 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 Planning 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 the OSJL use, was invalid and unenforceable; and (4) that the actions of the Building Inspector and the Planning Board in denying the building permit application and the special permit constituted a taking of the Trust's property without just compensation. A judgment issued (Cutler, J.) on September 5, 2013 dismissing the Complaint in its entirety. On appeal, the Appeals Court issued a rescript vacating that judgment as to Counts I, II and III and affirming it as to Count IV. Thereafter, the matter was brought before the court (Roberts, J.) on the parties' cross-motions for summary judgment, limited to the issues remaining after remand from the Appeals Court.

In accordance with this court's memorandum of decision and order of even date and the March 26, 2015 rescript from the Appeals Court, it is hereby

ORDERED that Counts I and II of the Complaint are dismissed as moot.

It is further

ORDERED, ADJUDGED and DECLARED on Count III of the Complaint that the preexisting nonconforming use at 299 Broadway was not discontinued by virtue of nonuse between January 2008 and January 2010 and that the applicability of the 2010 SZO to any successor use will be governed by the three-part test set forth in Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973).

It is further

ORDERED and ADJUDGED that Count IV of the Complaint is dismissed with prejudice.

It is further

ORDERED and ADJUDGED that this Judgment is a full adjudication of the parties' claims in this case, and all prayers for relief by any party to this action that are not granted in the preceding paragraphs are denied.

It is further

ORDERED that, upon payment of all required fees, this Judgment or a certified copy of it may be filed in the Registry and referenced on the margin of all relevant documents.