Opinion
16-P-999
08-03-2017
COCO BELLA LLC v. TOWN OF HOPKINTON BOARD OF APPEALS & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The planning board of Hopkinton granted S.F. Management, LLC's (S.F. Management's), application for site plan approval to construct a Dunkin' Donuts establishment on a site located in Hopkinton's rural business (BR) zoning district. Pursuant to the local by-laws, a residential abutter, Coco Bella LLC (Coco Bella), appealed to the zoning board of appeals of Hopkinton (board), which affirmed the planning board's decision. The abutter sought judicial review. On summary judgment, the Land Court judge reversed, concluding that the proposed use was not a use allowed in the BR zoning district. Because we view the board's interpretation of the zoning by-law as reasonable, we reverse.
Contrary to S.F. Management's argument, the judge did make a finding that Coco Bella "has presented credible evidence of a specific, non-speculative injury sufficient to withstand summary judgment and to establish its standing." In doing so, the judge assumed S.F. Management had rebutted Coco Bella's presumption of standing, but noted that Coco Bella's sole manager testified at deposition about harm from cars and trucks parking in front of his house; use of High Street as a "cut-through"; noise from the outside patio, car radios, compressors, and deliveries at all hours; odors from baking, idling cars and trucks, and trash; and lighting from 4:00 a.m. to 12:30 a.m. The judge found that the planning board had acknowledged these issues, but had failed to limit the hours of operation, and that its decision to address some of the claimed injuries "validates that [they] are real and not speculative." The judge concluded that Coco Bella had established standing. Because of the result we reach on the merits, we need not determine the issue.
Background. The applicant, S.F. Management, proposed to raze an unoccupied single-family home and barn and construct a Dunkin' Donuts store, a 3,000-square-foot building which would comply with applicable dimensional and parking requirements in the BR district. The store would sell coffee and other hot beverages, specialty beverages, bagels, muffins, doughnuts, pastries, and sandwiches. All sales would be at the counter, but patrons could order their food "to go" or could consume it at one of six indoor tables or at outdoor patio seating. There would be no table service by wait staff.
Much of the food preparation is done off site. Food preparation occurring on site includes portioning ingredients that arrive in bulk, such as meat, cheeses and eggs; preparing sandwiches as ordered; and baking muffins and bagels, which arrive frozen. In addition, some doughnuts require frosting or filling on site.
Among the permitted uses in the BR district are: (i) "Restaurants where all customers are seated and where no live commercial entertainment is offered"; (ii) "Retail stores, provided that not more than six employees are on the premises"; (iii) "Business, medical or professional offices and banks"; (iv) "Retail business: retail service or public utility uses involving manufacturing, clearly incidental and accessory to a retail use on the same premises, and the product is customarily sold on the premises, provided that not more than six operators are employed in such manufacturing"; (v) "On-site residence of owners or employees of a permitted use"; (vi) "Accessory uses"; and (vii) "Health services facility." The by-law further provides that "[a]ny uses not so permitted are excluded unless otherwise permitted by law or the terms hereof."
The by-law does not define either "restaurant" or "retail store." It does define "accessory use" as a use "that is customarily incidental and subordinate to the lawful principal use of the lot and is located on the same lot.... An accessory use must not be the primary use of the property but rather one that is subordinate and minor in significance, has a reasonable relationship with the primary use and is one that is usual to maintain in connection with the primary use of the lot."
The board's approval was premised on a finding that the use is permitted as a "retail store." This interpretation, the record reflects, is consistent with prior approvals of a Starbucks coffee café, another Dunkin' Donuts store, and a third similar establishment in the same zoning district. The judge concluded, however, that the proposed use is a "restaurant" where all customers will not be seated and, therefore, it is not a permitted use in the BR district. The judge pointed out that where restaurants are allowed in the town of Hopkinton (town), there is a requirement that all patrons be seated. The judge reasoned that, because uses not expressly permitted are excluded, restaurants where not all customers are seated are excluded. In short, the judge concluded that the planned use was as a "take out" restaurant and, as such, was not permitted.
Discussion. The interpretation of a zoning by-law is a question of law which we review de novo. Drummey v. Falmouth, 87 Mass. App. Ct. 127, 128-129 (2015). A local board's reasonable interpretation of a local by-law is given deference due to the "board's home grown knowledge about the history and purpose of its town's zoning by-law." Koines v. Zoning Bd. of Appeals of Cohasset, 91 Mass. App. Ct. 903, 904 (2017), quoting from Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664, 669 (1999). "[T]he guiding principle [is] that words undefined by zoning laws and ordinances are to be construed in accordance with common understanding and usage." Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 361 n.16 (2001). "We derive the words' usual and accepted meanings from sources presumably known to the (by-law's) enactors, such as their use in other legal contexts and dictionary definitions." Miles-Matthias v. Zoning Bd. of Appeals of Seekonk, 84 Mass. App. Ct. 778, 789 (2014), quoting from Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977). If the board's interpretation of its by-law is reasonable, the court may not substitute its judgment. Tanner v. Board of Appeals of Boxford, 61 Mass. App. Ct. 647, 649 (2004).
A dictionary definition of "restaurant" is an "establishment where refreshments or meals may be procured by the public: a public eating house." Webster's Third New International Dictionary 1936 (1993). A "retail store" is defined as "a place of business ... in which merchandise is sold primarily to ultimate consumers." Id. at 1938. Furthermore, a "bakery" is defined as "an establishment (as a retail shop) that sells baked products chiefly or exclusively." Id. at 164.
What these definitions tell us is that the proposed Dunkin' Donuts could meet the definition of either a restaurant or a retail store as those terms are used in the zoning by-law. The proviso in the by-law permitting "[r]estaurants where all customers are seated" can be interpreted to mean that food service establishments where not all customers are seated are not considered "restaurants," and that they may be permitted if the establishment meets the definition of another permitted use, such as a "retail store." Nothing in the by-law suggests that a retail store in the BR district may not sell the types of food products that the proposed Dunkin' Donuts plans to sell. Extending due deference to the board's interpretation of the by-law, we conclude that it is not unreasonable to consider the proposed Dunkin' Donuts a retail store. Its primary business is the sale of food and drink items "to go." It does not prepare food for sale other than on site. Seating is available as a convenience for some customers but, so far as the record reflects, it does not separately contribute to profits, except to the extent that seating may encourage customers to purchase additional items. Moreover, all items are packaged for "take out," whether they are ultimately consumed in the store or elsewhere. In Kraft v. Board of Appeals of Lynnfield, 333 Mass. 573, 575 (1956), the Supreme Judicial Court had no difficulty characterizing a building to be used for the baking and retail sale of doughnuts and other bakery goods as a "[s]tore for the conduct of a retail business." To be sure, food preparation will occur on site and associated licenses will be required. We conclude that limited food preparation may reasonably be considered "accessory" to the retail use and that such an accessory use is expressly allowed in the by-law.
As noted, accessory uses are specifically permitted in the by-law. To the extent Coco Bella argues that the on-site food preparation renders the proposed Dunkin' Donuts a "mixed use," we reject the argument. Moreover, the by-law does not prohibit accessory uses in connection with a retail store. Coco Bella's suggestion that mixed uses are prohibited is derived not from an express prohibition of mixed uses, but rather by extrapolation from the fact that mixed retail and residential uses are specifically allowed in another zoning district.
The judge cited to "the basic canon of statutory interpretation that ‘general statutory language must yield to that which is more specific.’ " TBI, Inc. v. Board of Health ofN. Andover, 431 Mass. 9, 18 (2000), quoting from Risk Mgmt. Foundation of Harvard Med. Insts., Inc. v. Commissioner of Ins., 407 Mass. 498, 505 (1990). The judge decided that the by-law's allowance of retail stores is more general than the specific prohibition of restaurants where all customers are not seated. Silva v. Rent-A-Center, Inc., 454 Mass. 667, 671 (2009). We need not decide the point in view of our holding that a food service establishment may, in some circumstances, be considered a "retail store." However, we note that other sections of the by-laws impose various restrictions on "retail stores," which suggest that the latter term may be considered more specific. The by-law restricts retail stores in the industrial area by size and requires them to be geared toward provision for the immediate neighborhood of specifically defined items including "groceries, prepared take-out food, toilet articles, cosmetics, candy, sundries, medications, newspapers, magazines and ice cream." In the business district and the downtown business district, retail stores and retail service shops are permitted without limitation as to size, items sold, or number of employees present. In the BR zoning district, retail stores are limited only as to the number of employees present on the premises. Had the town wanted to restrict retail stores from selling doughnuts, coffee, and other made-to-order food items, it knew how to do so. We think the town's decision not to limit the type of items that may be sold in a retail store in the BR district must be viewed as significant in light of the limitations imposed in other districts.
In the BR district, drive-in uses, "excluding the dispensing of food or drink," are allowed by special permit.
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Finally, the judge found that food and beverages sold at the Dunkin' Donuts location would be subject to a "meals" tax pursuant to G. L. c. 64H, § 6(h ), which applies to food and beverages sold by a "restaurant," a further indication that the use is a "restaurant" under the zoning by-law. The term "restaurant" for meals tax purposes is broadly defined in § 6(h ) as "any eating establishment where food, food products, or beverages are provided and for which a charge is made, including, but not limited to, a cafe, lunch counter, private or social club, cocktail lounge, hotel dining room, vending machine, and any other place or establishment where food or beverages are provided, whether stationary or mobile, temporary or permanent." Section 6(h ) exempts delicatessens, grocery stores, markets, and bakeries from the definition of "restaurant," but imposes a meals tax on items sold by those establishments that compete with those sold by restaurants. The statutory definition of "restaurant" for purposes of collecting a "meals tax" is extremely broad, even extending to vending machines. Conversely, other statutes, such as G. L. c. 270, § 22(b )(2), which prohibits smoking in various places, separately lists "restaurants, cafes, coffee shops, food courts or concessions, supermarkets or retail food outlets," which provides support for the idea that the general term "restaurant" does not include all food service establishments. There has been no showing that the term "restaurant" as used in the zoning by-law is intended to cast as wide a net as the meals tax statute.
For the foregoing reasons, we conclude that the board's interpretation of the zoning by-law to permit the proposed Dunkin' Donuts as a "retail store" is a reasonable interpretation of its by-law.
The judgment reversing the decision of the zoning board of appeals is reversed. A new judgment is to enter affirming the decision of the zoning board of appeals.
So ordered.
Reversed.