COMAR REAL ESTATE TRUST by JAMES A. COHEN and JAMES B. MARCUS, Co-Trustees of COMAR REAL ESTATE TRUST v. CITY OF SOMERVILLE, PLANNING BOARD of the CITY OF SOMERVILLE and KEVIN PRIOR, ELIZABETH MORONEY, JOSEPH FAVALORO, JAMES KIRYLO, MICHAEL A. CAPUANO and DANA LEWINTER as Members of the SOMERVILLE PLANNING BOARD.

INTRODUCTION

In the four-count Complaint filed on September 28, 2010, the Plaintiff Trustees of the Comar Real Estate Trust (“Comar”) challenge the actions of the Somerville Building Inspector in denying a building permit for alterations to a former supermarket building on commercially-zoned property located at 299 Broadway, Somerville, MA (the “Locus”). Comar also challenges a September 2, 2010 decision of the Somerville Planning Board (the “Planning Board”) which denied two special permits for Comar’s proposed use and development of the Locus. Additionally, Comar seeks to have certain provisions of the Somerville Zoning Ordinance (the “Ordinance”) declared invalid, and claims damages for a regulatory taking.

On December 15, 2011, Comar filed a Motion for Summary Judgment on all counts. In that Motion, Comar contends, for the first time, that the Planning Board’s decision was not a “final action” as required under G.L. c. 40A, § 9, and that Comar’s application for a special permit was constructively approved as a consequence. Alternatively, Comar challenges the Planning Board’s decision by arguing, first, that the Building Inspector and the Planning Board erroneously required special permits for the proposed use of the Locus rather than treating the proposed use as a by-right continuation of a protected, nonconforming supermarket use. Comar further argues that the Planning Board’s decision denying the special permits was legally untenable, as well as arbitrary and capricious, because the Planning Board’s findings and conclusions were based upon speculative and improper considerations (including a preference for local commercial enterprises over regional ones), and because the Planning Board relied upon invalid provisions of the Ordinance. With respect to Comar’s Ordinance invalidity argument, it contends that, as applied, the Ordinance violates the Zoning Act by making impermissible distinctions between use categories, and violates the Commerce Clause of the U.S. Constitution by unlawfully discriminating against regional commercial enterprises. Finally, Comar contends that the Locus was singled out for disparate zoning treatment when it was rezoned, resulting in unlawful spot zoning.

In opposition to Comar’s Summary Judgment Motion, the municipal Defendants do not dispute the material facts presented by Comar, but argue: (1) that the Planning Board’s special permit decision, as filed with the City Clerk on September 9, 2010, constituted a timely “final action” within the meaning of G.L. c. 40A, § 9, but that even if the special permit decision did not satisfy the § 9 requirements for final action, Comar is foreclosed from now claiming constructive approval where it failed to give timely written notice of such claim, as required under said § 9; (2) that the proposed occupancy of the Locus by a general merchandise store would constitute a change in use which is substantially different in kind from the prior nonconforming supermarket use of the Locus, and is therefore subject to the recently enacted special permit requirements for large retail uses in the zoning district in which the Locus is located; (3) that the Planning Board’s decision denying Comar’s special permit application was properly based on lawful provisions of the Ordinance; (4) that the Planning Board may lawfully apply the special permit criteria of the Ordinance to encourage “local serving” uses; and (5) that neither the Ordinance, nor the Planning Board’s decision, violate the Commerce Clause of the United States Constitution by discriminating against regional commercial enterprises.

Following Comar’s filing of a written response to the Defendants’ summary judgment opposition on March 12, 2012, and a hearing on Comar’s Motion for Summary Judgment on March 14, 2012, Comar’s Motion for Summary Judgment was taken under advisement. For the reasons discussed in more detail below, the Defendants are entitled to summary judgment dismissing all of Comar’s claims. The City is entitled to summary judgment dismissing Count I, because Comar failed to exhaust its administrative remedies in regard to the denial of its building permit application. As for Count II, Comar failed to meet its burden of establishing sufficient undisputed material facts to demonstrate that the proposed use of the Locus meets all pertinent special permit requirements, or that the Planning Board’s decision was based upon unlawful zoning provisions. Therefore, the Planning Board is entitled to summary judgment dismissing the Count II G.L. c. 40A, § 17 appeal. [Note 1] Comar also failed to meet its summary judgment burdens with respect to its Ordinance invalidity claims under Count III, and with respect to its regulatory taking claims under Count IV. Accordingly, the City is entitled to summary judgment in its favor dismissing both Counts III and IV.

UNDISPUTED MATERIAL FACTS

Based upon the Statement of Undisputed Material Facts filed by the Plaintiff, and the Defendants’ response to same, I find that the following material facts are undisputed. The Locus was occupied by a Star Market supermarket for approximately 40 years, until January of 2008 when the Star Market ceased operations and vacated the premises. The existing building on the Locus has approximately 27,000 square feet of floor area. In 2009, Comar negotiated an agreement to lease the Locus to Ocean State Job Lots (“OSJL”), a Rhode Island-based retailer. On February 4, 2010, Comar applied for a building permit to make renovations to the existing building in order to accommodate OSJL’s tenancy. Comar’s building permit application identified both the current and proposed use of the Locus simply as “Mercantile.” In response to the question on the building permit application that asks whether the proposed project would require a variance and/or special permit, Comar checked the “YES” box, without explanation.

On February 10, 2010, a few days after the building permit application was filed, but before the application was acted upon, certain amendments to the Ordinance came into effect. The amendments created two new Commercial Corridor Districts (“CCD”), CCD-45 and CCD-55. The Locus was included within the area zoned as CCD-55. [Note 2] Pursuant to § 6.1.22(E) and § 7.13(K) of the amended Ordinance, a special permit is required for the establishment of any new retail or service use in the CCD that exceeds 10,000 square feet in net floor area. Pursuant to § 6.1.22(D)(5) of the amended Ordinance, a special permit is required for alterations to existing façades and for certain changes in signage in a CCD.

By written decision, dated February 22, 2010, Comar was notified that the building permit was denied because conversion of a supermarket to a general merchandise store required special permits relating to use, rear yard setback, side yard setback, and signage/façade alterations, including special permits under Ordinance § 7.13(K) and § 6.1.22(D)(5). Comar did not appeal the building permit denial to the Somerville Board of Appeals (the “ZBA”). Instead, Comar submitted an application to the Planning Board on March 22, 2010, requesting special permits under Ordinance § 7.13(K) for a large retail general merchandise store, and under Ordinance § 6.1.22(D)(5) for façade and signage alterations. [Note 3]

By written decision dated September 2, 2010, and filed with the City Clerk on September 9, 2010, the Planning Board denied both of the requested special permits. Among the reasons for denial recited in the Planning Board’s decision is inconsistency of the proposed use with the zoning purpose statements of the Ordinance and the CCD districts.

DISCUSSION

“Summary judgment is appropriate where there is no genuine issue of material fact, and viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law.” Opara v. Massachusetts Mutual Life Ins. Co., 441 Mass. 539 , 544 (2004). The burden of proving both the absence of any genuinely contested issues of material fact and entitlement to judgment as a matter of law is on the party seeking summary judgment. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). When appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c). Here, the material facts in the summary judgment record are not disputed, and drawing all logically permissible inferences from these facts in favor of the municipal defendants (as the nonmoving parties), I find that summary judgment is appropriately entered against Comar, dismissing all of its claims.

Count I – Denial of Building Permit Application

In Count I of its Complaint, Comar alleges that the Somerville Building Inspector improperly and erroneously denied Comar’s application for a building permit to renovate the existing building on the Locus, by failing to treat the proposed OSJL use as a continuation of a lawfully nonconforming supermarket. Comar prays that the Building Inspector’s decision be annulled. However, because Comar failed to exhaust its administrative remedies by appealing the February 22, 2010 building permit denial to the ZBA, Comar may not now appeal that denial to the court. Moreover, Comar is precluded from claiming that the proposed changes to the structure and use of the Locus are not subject to the special permit requirements recited in the Building Inspector’s written denial of Comar’s building permit application.

Massachusetts General Laws, Chapter 40A, § 8 provides in relevant part:

An appeal to the permit granting authority as the zoning ordinance or by-law may provide, may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer under the provisions of this chapter…

Pursuant to G.L. c. 40A, § 15, “Any appeal under section eight to a permit granting authority shall be taken within thirty days from the date of the order or decision which is being appealed.” If a timely appeal is not taken, the applicant is bound by the decision and is foreclosed from later raising the subject of the denial on appeal to the local permit granting authority or at further judicial review. Connors v. Annino, 460 Mass. 790 , 799 (2011) (concluding that both the local board of appeals and the Land Court were without jurisdiction to entertain the subject of a G.L. c. 40A, §§ 8 and 15 appeal filed more than 30 days after the issuance of the building permit at issue). Here, Comar did not make a timely appeal of the Building Inspector’s decision to the ZBA, and is thus foreclosed from challenging the basis for that decision.

While Comar argued at the summary judgment hearing that its application to the Planning Board included an appeal from the Building Inspector’s denial of the building permit, [Note 4] Comar’s summary judgment submissions did not include a copy of that purported appeal. Nor does the Planning Board’s decision make any reference to such an appeal. More importantly, however, any such appeal would have been futile since the Planning Board has no authority to act under G.L. c. 40A, § 8. Rather, consistent with the requirements G.L. c. 40A, § 14, Ordinance § 3.2 empowers only the ZBA to hear and decide appeals taken from an applicant’s inability to obtain a building permit. Contrary to Comar’s position, the Planning Board’s designation under § 6.1.22(C) of the Ordinance as the “special permit granting authority” for the CCD does not (and cannot) empower that Board to also hear G.L. c. 40A, § 8 appeals. [Note 5] Consequently, Count I of the Complaint must be dismissed, as a matter of law.

Count II - G.L. c. 40A, § 17 Appeal

In Count II of the Complaint, Comar alleges that the decision denying the special permits must be annulled because the Planning Board exceeded its authority by, among other things, (1) erroneously and improperly refusing to grant the “Building Permit and Special Permit,” (2) treating the proposed use of the Locus as a general merchandise store instead of as a supermarket, (3) relying upon vague and subjective criteria, (4) “interfer[ing] with the property owner’s and tenant’s rights to engage in interstate commerce without arbitrary restraints imposed by zoning regulations,” and (5) misinterpreting the use provisions of the Ordinance.

On summary judgment, Comar argues that the Planning Board erred as a matter of law in “requiring” the applicant to obtain special permits because: (1) the proposed OSJL tenancy does not involve a change or substantial extension of the lawfully nonconforming supermarket use, and (2) in any event, § 6.1.22(E) of the Ordinance expressly states that the CCD provisions do not apply to lawfully nonconforming uses. Comar further argues that the Planning Board based its decision upon improper criteria and invalid zoning regulations. Notably, Comar’s summary judgment filings included no evidence relevant to the nature of the proposed OSJL retail use, or as to its conformance with the special permit criteria set forth in the Ordinance. Comar, indeed, has failed to demonstrate sufficient undisputed material facts entitling it to a judgment under Count II that the decision denying the special permit application exceeded the Planning Board’s authority.

Applicable Zoning

For the reasons discussed above with respect to the Count I claims, Comar is foreclosed from contesting the Building Inspector’s determination that special permits are required for the proposed retail use of the Locus. Moreover, there is nothing in the summary judgment record to support Comar’s assertion that the Planning Board “required” Comar to obtain special permit relief. Rather, it is reasonable to infer that, although presumably prompted by the rejection of its building permit application, Comar elected to apply for special permit relief rather than appeal the building permit denial. Thus, to the extent that Comar is claiming the special permit denial should be invalidated because no special permit was necessary, such claim is not properly before the court, as it is merely another improper attempt to challenge the Building Inspector’s determination. See Iodice v. Newton, 397 Mass. 329 (1986) (framing a claim as one for declaratory judgment does not establish basis for judicial review that does not otherwise exist). Nevertheless, since both parties have focused considerable portions of their summary judgment argument on the issue of whether the OSJL use of the Locus is subject to a special permit for large retail use in the CCD, and given that the Count III Ordinance invalidity claims implicate applicability of the CCD zoning to the Locus, I will address applicable zoning issue.

I find, based upon the undisputed facts in this case, that to the extent the Locus might once have enjoyed lawfully existing nonconforming use protections, [Note 6] such protections would have ceased just prior to the filing of Comar’s building permit application on February 4, 2010. Pursuant to § 4.3 of the Ordinance, “any use lawfully being made of land or buildings which does not conform to this ordinance as adopted or as amended may be continued to the same degree and for the same purpose.” However, § 4.5.2 of the Ordinance provides that “[a] nonconforming use of a building or land which has been abandoned shall not thereafter be returned to such nonconforming use.” Importantly, § 4.5.2 further provides that:

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.

[Emphasis added.]

It is well-established that a municipality may, through its zoning ordinance or by-law, extinguish otherwise protected nonconforming uses if the premises are not in fact used for the protected purpose for two years or more. See Bartlett v. Board of Appeals of Lakeville, 23 Mass. App. Ct. 664 , 666-669 (1987). If a municipality has chosen to exercise that authority, as has Somerville, there is no need to make a finding that there has been an intentional abandonment. Here, by Comar’s own admission, the Locus has not been used since the end of January 2008, when Star Market vacated the premises upon expiration of its lease. Thus, although Comar may have been involved in efforts to lease the space, the Locus had remained unused as a supermarket for over two years when the CCD ordinance amendments became effective on February 10, 2010. On that date, any nonconforming use protections which might have applied to the former supermarket use had already been extinguished. And as a consequence, the proposed OSJL occupancy of the vacant building would have been a new use of the Locus and not a change of a preexisting use. As such the OSJL occupancy was subject to the CCD zoning regulations under Ordinance § 6.1.22, including the special permit requirements for establishment of large retail uses and for façade and sign changes.

Section 6.1.22(E) of the Ordinance provides that certain uses are permitted by right in the CCD District, while other uses require a special permit per Table 7.13 (Table of Use Clusters). Section 6.1.22(E) lists a total of ten (10) “Use Clusters” [Note 7] which are allowed in the CCD districts. One of those Use Clusters is the “Large Retail and Service (more than 10,000 net square feet per establishment)” Use Cluster set forth in Table 7.13 under Use Cluster “K”. Use Cluster K lists nineteen (19) different retail and service uses, some of which include several subcategories and all of which uses are denoted as being subject to a special permit. Among the individually listed retail uses in Use Cluster K are: “General merchandise,” “Department Store,” Supermarket,” and “Pharmacy.” Use Cluster K also includes several other retail uses described as stores selling items grouped under the subcategories: “food,” “goods,” “furnishings,” “supplies,” “hardware,” “crafts” and “equipment.” While the exact category of retail use to which OSJL belongs may be disputed by the parties (the Planning Board claiming the use is “general merchandise” and Comar claiming the use is “supermarket”), it is undisputed that both of those uses are among the large retail uses listed in Use Cluster K as requiring a special permit. Pursuant to Ordinance §§ 7.13(B) and (B)(1), an existing use in a single use cluster may be changed to any other use within the single use cluster by right, but a special permit is required for the establishment of a new use if it is one designated as a special permit use in the § 7.13 Table. Thus, because as of February 2010 the Locus had been unused for more than two years, the proposed OSJL occupancy of the vacant building on the CCD-zoned Locus did not involve a change of use within Use Cluster K. Rather, it involved the establishment of a new, large retail use. Moreover, as such retail use would exceed 10,000 net square feet, it is one designated in the § 7.13 Table as a special permit use. Accordingly, on the basis that the OSJL occupancy of the Locus does necessitate a special permit under Ordinance §§ 6.1.22(E) and 7.13(K), I will proceed to examine Comar’s alternative arguments for invalidating the Planning Board decision.

Denial of the Special Permit

Comar first argues that the Planning Board’s denial of the special permits was improperly based on a finding that the proposed use was not consistent with the purposes of the CCD. However, Comar’s contention that consistency with the purposes of the CCD is not a lawful consideration, is fully contradicted by the express provisions of the Ordinance which require the special permit granting authority to find that a proposed use is consistent with the purposes of the Ordinance in order to grant a special permit for such use.

The Planning Board detailed three primary factors that led to its denial of the two special permits, including the following:

Use – the CCD purpose statement clearly seeks uses that are predominately local serving. While this allows room for some regional serving uses to be permitted, these are expected to be placed within the context of a mixed use development, not as single uses on large scale sites within a neighborhood shopping district. In considering how this could be applied at 299 Broadway, a regional serving use could be acceptable if it was located within a quality mid-rise mixed-use building, mixed with other local serving retail uses, and placed some distance from parking. Unfortunately, such a proposal is not before this Board.

[Emphasis added.] The phrase “CCD purpose statement” appears to be a reference to Ordinance § 6.1.22(A) which, in pertinent part, describes the purpose and objectives of the CCD as follows:

Purpose

The Corridor Commercial Districts have been established to promote appropriate infill development along heavily traveled transportation corridors, especially where those corridors meet at named Squares. The district recognizes that such corridors present opportunities for an active mix of uses while also addressing development challenges posed by smaller lots and nearby existing residential development and the need to be accessible by multiple modes of transportation. The major objectives of the districts are to: … (2) increase commercial activity in high-profile areas including retail that is largely neighborhood-serving in multi-tenant, mixed use buildings; …

[Emphasis added.]

Ordinance § 5.1.4, entitled “Findings and Determinations for Special Permits,” states in relevant part:

Prior to granting a special permit, the SPGA shall make findings and determinations that the proposed use, lot, building, structure… which is the subject of the application for the special permit: …

(c) Consistency with purposes. Is consistent with: (1) the general purposes of this Ordinance as set forth in Article 1, and (2) the purposes, provisions, and specific objectives applicable to the requested special permit which may be set forth elsewhere in this Ordinance, such as, but not limited to, those purposes at the beginning of the various Articles. …

[Emphasis added.]

Based upon the requirements of the above-quoted § 5.1.4, I find that the Planning Board’s denial of the special permits based upon a determination that the proposed OSJL use was inconsistent with the purposes of the CCD was entirely within that Board’s authority as the SPGA for uses in the CCD District. Moreover, as Comar has put forth no evidence contradicting the Planning Board’s findings in this regard, the Planning Board’s decision cannot be disturbed. See MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970) (“The decision of the board cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.”); See also Pederson, 404 Mass. at 16-17 (on summary judgment, the moving party bears the burden of proving entitlement to judgment as a matter of law).

Comar’s second argument ? that the Planning Board’s decision is based upon unlawful zoning also fails as I find, for the reasons discussed below relative to the Count III Ordinance challenge, that the Planning Board’s decision was not based on unlawful zoning provision. Accordingly, and since Comar’s summary judgment submission is devoid of facts demonstrating that its proposed use and development of the Locus meets the pertinent special permit criteria of the Ordinance for § 7.13(K) uses and for § 6.1.22(D) façade and sign changes, or that that the decision denying the special permits was otherwise arbitrary and capricious, Comar’s Motion for Summary Judgment must be denied as a matter of law. Summary judgment shall instead enter in favor of the Defendant Planning Board, dismissing the Count II, § 17 appeal.

Count III - Interstate Commerce and Spot Zoning

In Count III of the Complaint, Comer requests a declaratory judgment under G.L. c. 240, § 14A, invalidating certain of the Ordinance provisions recited in the special permit decision and in the Building Inspector’s decision on the grounds that such provisions, as applied, (1) improperly regulate and deny an existing use in an existing structure, (2) improperly limit the types of uses permitted on the Locus, (3) violate the Interstate Commerce Clause of the U.S. Constitution, (4) violate G.L. c. 40A, (5) amount to an unlawful regulatory taking, (6) violate Comar’s civil rights and the civil rights of the prospective tenant, (7) constitute spot zoning, (8) deny equal protection under the U.S. and Massachusetts Constitutions, and (9) are unconstitutionally vague. However, the only Count III claims Comar pursues on summary judgment are: (1) that one of the purposes of the CCD, as enunciated in § 6.1.22(A)(2) of the Ordinance and referenced in the Planning Board’s special permit decision, unlawfully discriminates against interstate commerce by limiting uses of land within the CCD to predominately local businesses, and (2) that, as applied, the CCD designation of the Locus constitutes unlawful spot zoning. [Note 8] Comar has failed to demonstrate its entitlement to summary judgment with respect to either of these two claims.

The Commerce Clause

As discussed in detail, supra, the Planning Board’s decision identifies three primary factors that led to its denial of the special permits, including the inconsistency of the proposed “Use” with the CCD purpose statement. Of particular relevance to Comar’s Count III summary judgment argument, is the Planning Board’s statement that “the CCD purpose statement clearly seeks uses that are predominately local serving.” According to Comar, this objective of the CCD, and the Board’s reliance on same as one of its reasons for denial of Comar’s special permit application for the OSJL use of the Locus, constitute unlawful discrimination against out-of-state commercial enterprises. The summary judgment record simply does not support this claim.

As an initial matter, it must be observed that a zoning regulation is presumed to be valid and the burden is on the party seeking to invalidate the regulations to show that there is no substantial relation between it and the furtherance of any of the general objects of the zoning statute, or the Constitution. Kaplin vs. City of Boston, 330 Mass. 381 , 383 (1953). Here, Comar has failed to demonstrate how the purposes of the CCD described in § 6.1.22(A) of the Ordinance and re-stated by the Planning Board in its decision, violate the Commerce Clause of the United States Constitution through either intentional or incidental discrimination against out of state businesses.

Under Article I, § 8, cl. 3 of the United States Constitution (the Commerce Clause), “Power… [t]o regulate Commerce with foreign Nations, and among the several States…” is reserved to the Congress. The Commerce Clause applies equally to the individual states and their political subdivisions. Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951). Although the Constitution does not explicitly restrict state power to regulate commerce, the United States Supreme Court has determined that the Commerce Clause’s reservation of power to Congress, by negative implication, sharply limits actions by individual states which might negatively affect the free flow of commerce throughout the nation. Maine v. Taylor, 477 U.S. 131, 138 (1986). The judicially created doctrine known as the “dormant Commerce Clause” thus prohibits state actions that unreasonably burden or inhibit the free flow of commercial goods across state lines, and prevents the individual states from insulating themselves through economic protectionist measures. Wyoming v. Oklahoma, 502 U.S. 437, 454 (1992).

Analysis of state action under the dormant Commerce Clause falls into two categories. The first involves state action which is facially discriminatory, or intended to be discriminatory in effect, against interstate commerce. Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978). Also see United Haulers Ass'n v. Oneida, 550 U.S. 330, 338 (2007), citing Oregon Waste Sys. v. Department of Envtl. Quality, 511 U.S. 93, 99 (1994) (“Discrimination” means “differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.”). Such treatment is subject to a “virtually per se rule of invalidity,” Philadelphia, 437 U.S at 623-24, and is afforded the strictest constitutional scrutiny, requiring the state (or the municipality) to show that its action is justified by a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives. Hughes v. Oklahoma, 441 U.S. 322, 326 (1979); Island Silver & Spice, Inc. v. Islamorada, 542 F.3d 844, 847 (11th Cir. 2008).

The second category encompasses state actions that, while neutral on their face or in their intended effects, indirectly or incidentally burden the free flow of commerce across state lines. These measures are subject to lesser judicial scrutiny, and are to be analyzed by balancing the local benefits sought to be achieved against the burdens placed on interstate commerce. Pike v. Bruce Church, 397 U.S. 137, 142 (1970).

Comar insists that the intended effect of Ordinance § 6.1.22(A) is to protect local businesses at the expense of out-of-state competitors. Comar relies primarily on Island Silver & Spice, Inc. v. Islamorada, supra, to argue that the Ordinance unconstitutionally discriminates against use of land in the CCD by any out-of state businesses, and consequently is a per se violation of the Commerce Clause. This argument is without merit. The local ordinance invalidated in Island Silver & Spice prohibited “formula restaurants” and limited the street level frontage and area for “formula retail” establishments. Formula retail was defined in the local ordinance as:

[a] type of retail sales activity of retail sales establishment . . . that is required by contractual or other arrangement to maintain any of the following: standardized array of services or merchandise, trademark, logo, service mark, symbol, décor, architecture, layout, uniform, or similar standardized feature.

Id. at 845. The Court found that the ordinance was not facially discriminatory. But, because the parties had stipulated that the ordinance “effectively prevents the establishment of new formula retail stores,” and that the square foot and frontage restrictions would not accommodate the minimum requirements of many national and regionally branded stores, the court treated the ordinance as having an intended discriminatory effect and applied a strict scrutiny analysis. Ultimately, the Court held that the ordinance violated the dormant commerce clause because the municipality “fail[ed] to indicate a legitimate local purpose to justify the ordinance's discriminatory effects.” [Note 9] Id. at 848.

Unlike the circumstances addressed in Island Silver & Spice, however, there is no basis in the instant case for determining that Ordinance § 6.1.22(A)(2) has an intended discriminatory effect on interstate commerce. It is, as Comar concedes, a statement of purpose and not a regulation. More importantly, it does not, on its face, purport to prohibit or regulate uses based upon particular characteristics associated only with regional or national commercial retail brands, as did the ordinance invalidated in Island Silver & Spice. And, indeed, Comar has not identified a single aspect of the Ordinance that restricts, limits, or otherwise acts to burden out-of-state commercial entities in favor of in-state enterprises.

As an initial matter, it must be noted that the term “neighborhood serving” does not appear anywhere in the table of uses for the CCD. The numerous categories of retail uses allowed in the CCD are regulated by size, rather than by whether they are neighborhood serving. Rather, Comar argues that it is the application of the Ordinance’s stated purposes in § 6.1.22(A)(2) (presumably in the context of a special permit application process) which imposes an unconstitutional burden on interstate commerce. In making this argument, Comar would have this court read into the expressly stated objective of increasing “largely neighborhood serving” retail activity in the CCD an implicit objective of protecting locally-based retail businesses from out-of-state competition. I decline to do so. There is absolutely nothing in the language of the Ordinance that even suggests such a reading.

While the Ordinance does not define the term “neighborhood serving,” the plain meaning of that term suggests that a neighborhood serving retail business is one which is operated primarily to serve customers drawn from the surrounding and nearby neighborhoods, as opposed to a retail business which is operated to serve clientele from a wider geographic area. This type of distinction, however, does not depend upon where the operating entity’s home office is based, or the geographic origin of the retail stock. It is entirely possible, for example, that a grocery store, convenience store or pharmacy might be owned by a national chain and yet provide for essential needs of the neighborhood in which it is located, while a large office supply retailer or a big box retailer might be owned by a locally-based company but is operated to serve a much broader market. Accordingly, I find that Ordinance § 6.1.22(A)(2) is neither facially discriminatory, nor intended to be discriminatory, against interstate commerce.

Because Ordinance § 6.1.22(A)(2) is facially neutral, it will pass muster under the dormant commerce clause “unless the burden imposed on such [interstate] commerce is clearly excessive in relation to the putative local benefits.” See Pike, 397 U.S. at 142. Here, the summary judgment record is devoid of evidence that the Ordinance places any burden, however incidental, on interstate commerce. Ordinance § 6.1.22(A)(2), and the other provisions in the Ordinance relating to the CCD, apply uniformly to all commercial entities operating within that zoning district. Although Comar asserts that its request for zoning relief was denied on the grounds that the proposed tenant is an out-of-state business, I find no basis for such an assertion. No such grounds are recited in the text of the Planning Board’s written decision, and Comar submitted no evidence to demonstrate that the out-of-state identity of the proposed retail tenant was an actual, although unexpressed, factor in the denial of the special permit.

Further, because Comar failed to present any evidence to demonstrate that the Ordinance places incidental burdens on interstate commerce, the City was not required to come forward with its own evidence to demonstrate a legitimate purpose for encouraging neighborhood serving retail uses in order to defeat the summary judgment motion.

Spot Zoning

The second, and only other, issue initially raised in Count III and subsequently argued by Comar on summary judgment, is that the CCD zoning of the Locus is illegal “spot zoning.” [Note 10], [Note 11] Comar fairs no better with this claim. To succeed in its challenge to the validity of the CCD zoning as unlawful “spot zoning,” Comar bears the burden of demonstrating, by a preponderance of the evidence, “that the affected parcel has been singled out for more restrictive treatment than surrounding land which is indistinguishable, thereby ‘producing, without rational planning objectives, zoning classifications that fail to treat like properties in a uniform manner.’” Andrews v. Town of Amherst, 68 Mass. App. Ct. 365 , 369 (2006), quoting W R. Grace & Co.-Conn. v. City Council of Cambridge, 56 Mass. App. Ct. 559 , 569 (2002). There are simply no facts in the summary judgment record, however, to support a finding that there was disparate zoning treatment of the Locus.

The only fact asserted by Comar relative to the zoning of the Locus is that, effective February 10, 2010, two new CCD zoning districts were created within the City of Somerville, including CCD-55 which encompassed Locus. Comar’s Statement of Undisputed Material Facts do not include any facts indicating that the Locus is the only parcel included within the CCD-55 district; nor does the Statement include any facts demonstrating that the Locus is treated more restrictively than surrounding, similarly situated properties. Instead, Comar’s spot zoning argument seems to be based solely on the bare assertion made in its memorandum, that the Planning Board had recognized in its special permit decision that the Locus was “identified for up zoning.” Because Comar presented no material facts to support its spot zoning claim, the City was not required to come forward to justify its actions in zoning the Locus as CCD-55, and Comar’s Motion for Summary Judgment that the CCD designation of the Locus constitutes unlawful spot zoning must be denied as a matter of law.

In summary, where Comar failed to present sufficient undisputed material facts to demonstrate entitlement to judgment under Count III, as a matter of law, under either of the theories presented on summary judgment, the Defendants are entitled to judgment dismissing Count III of the Complaint.

Count IV – Regulatory Taking

Finally, in Count IV of the Complaint, Comar alleges that various actions of the City, the Building Inspector, and the Planning Board unlawfully deprived Comar of the right to use and enjoy the Locus (including the right to earn rental income), thereby constituting a partial regulatory taking in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution, and Part 1, Article X and Article XII of the Massachusetts Constitution. Comar’s Complaint seeks damages for the alleged regulatory taking, including rental loss income. However, Comar presents no argument or evidence on summary judgment relating to this claim. Accordingly, summary judgment shall enter dismissing Count IV of the Complaint.

CONCLUSION

In accordance with the forgoing decision, Judgment shall enter dismissing all counts in the Complaint.