MICHAEL COLOMBA v. ERIC SMITH, JIM ZARKADAS, NICHOLAS IANNUZZI, FAUSTINO LICHAUCO and JOHN McMANUS as members of the BELMONT ZONING BOARD OF APPEALS.

MICHAEL COLOMBA v. ERIC SMITH, JIM ZARKADAS, NICHOLAS IANNUZZI, FAUSTINO LICHAUCO and JOHN McMANUS as members of the BELMONT ZONING BOARD OF APPEALS. MISC 16 000219 December 7, 2016 Middlesex, ss. LONG, J. DECISION Introduction The plaintiff in this G. L. c. 40A, 17 appeal, Michael Colomba, appeals the decision of the Belmont Zoning Board of Appeals ("ZBA") denying his application for a special permit to convert an existing retail and office building in Belmont to a hotel with a principal use of lodging. The parties agree that there are no material facts at issue and that this case turns on one question of law: whether, under Belmont's Zoning By Law ("the by law"), hotel use is permitted by special permit in the zoning district in which Mr. Colomba's property is located. Mr. Colomba contends that it is, and has moved for summary judgment on grounds that the ZBA's decision to the contrary is legally untenable and an abuse of discretion. Because I find that the plain language of the by law prohibits hotel use in all zoning districts, even by special permit, Mr. Colomba's motion is denied, summary http://masscases.com/cases/land/2016/2016 16 000219 DECISION.html 1/10

judgment is entered for the defendants, and Mr. Colomba's claims are dismissed in their entirety, with prejudice. Facts Summary judgment may be entered when the facts material to the claims at issue are not in genuine dispute and the moving party is entitled to judgment on those claims as a matter of law. Mass. R. Civ. P. 56(c); Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 643 644 (2002). "When appropriate," summary judgment "may be rendered against the moving party." Mass. R. Civ. P. 56(c). Except as otherwise noted, the following facts are not genuinely in dispute. Mr. Colomba's Special Permit Application Mr. Colomba desires to convert the existing two story retail and office building located at 334 Pleasant Street in Belmont's Local Business III ("LB III") zoning district into a hotel. In a decision dated April 4, 2016, the ZBA denied Mr. Colomba's Application for a Special Permit [Note 1] to convert the principal use of the property to "lodging" on grounds that hotel use is not permitted in the LB III district, and further indicated that Mr. Colomba's three other special permit applications regarding the proposed hotel's dimensional and parking requirements were thus moot. [Note 2] This action is Mr. Colomba's appeal of that decision. Hotel Use Under Belmont's Zoning By law Belmont's zoning by law provides that "[a]ny use not specifically or generically enumerated in a district herein shall be deemed prohibited." By law 1.3. Section 3.1 [Note 3] further prohibits uses that are not set forth in the by law's Schedule of Use Regulations, which includes only the following categories: (1) Agriculture, (2) Business, (3) Public and Semi Public, (4) Residential, and (5) Accessory Uses. [Note 4] See By law 3.1 & 3.3. Under 3.2, a use that is "not classifiable under any listed category may be allowed" by Special Permit from the ZBA, but only if the Special Permit Criteria of 7.4.3 are satisfied and the ZBA determines "that the use is similar in its impacts on the neighborhood, the environs and the Town" to a use that is permitted by right or allowed by Special Permit. By law 3.2. http://masscases.com/cases/land/2016/2016 16 000219 DECISION.html 2/10

No category in the Schedule of Use Regulations lists hotels as a use. See By law 3.3. There is a reference to hotels in a different section of the by law regulating offstreet parking and loading, which provides: "[h]otels, motels, room and board, other commercial accommodations: one parking space for each guest unit, plus one parking space for each eight units or fraction thereof." By law 5.1.2(c). But, as discussed more fully below, this only addresses hotels allowed by variance or as grandfathered uses. "Lodging and boarding" is permitted in the LB III district, but only as an Accessory Use, which by definition is "incidental to" a principal use. [Note 5] See By law 1.4 & 3.3. The by law defines "lodging and boarding" as "[r]ental of not more than three rooms without separate cooking facilities, as an accessory use within a dwelling, [Note 6] if not resulting in more than four unrelated persons being accommodated on the premises." By law 1.4. This is not a "hotel" as sought by the plaintiff (a stand alone facility serving travelers and tourists), and the longerterm nature, limited size, and "accessory" status of lodging and boarding" makes it distinct from, and with a decidedly dissimilar impact, than a stand alone, principaluse hotel. [Note 7] "Other retail sales and services" is enumerated as a use under the Business category of the Schedule of Use Regulations and, in the LB III district, is either permitted as of right or by special permit, depending on the gross floor area of certain improvements to the property. [Note 8] See By law 3.1 & 3.3. Under the by law, "other retail sales and services" is defined as "[a]n establishment primarily engaged in the retail sale of goods, services, and/or products (including baked products, ice cream, and/or candy for consumption off site with no seating provided on site). Such uses may include incidental food service." By law 1.4. The ZBA has authority to grant certain variances from the by law's requirements. See By law 7.6.2. The ZBA may grant use variances "only for accessory uses, and uses within existing structures without extension thereof...." Id. Further relevant facts are set forth in the Analysis section below. Analysis http://masscases.com/cases/land/2016/2016 16 000219 DECISION.html 3/10

In this G. L. c. 40A, 17 appeal, as in all such proceedings, the ZBA's decision "'cannot be disturbed unless it is based on a legally untenable ground' or is based on an 'unreasonable, whimsical, capricious or arbitrary' exercise of its judgment in applying land use regulation to the facts as found by the judge." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374, 381382 (2009) (quoting Roberts v. Sw. Bell Mobile Sys., Inc., 429 Mass. 478, 487 (1999)). The dispositive issue before the court is whether hotel use is permitted by special permit in Belmont's LB III zoning district under the by law. Because I find that it is not, I affirm the ZBA's decision denying Mr. Colomba's special permit application. The interpretation of a town's zoning by law is a question of law for the court, governed by the familiar principles of statutory construction. See Doherty v. Planning Bd. of Scituate, 467 Mass. 560, 567 (2014). A court is to construe a statute according to the legislature's intent, "ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.'" Grady v. Zoning Bd. of Appeals of Peabody, 465 Mass. 725, 729 (2013) (quoting Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 749 (2006)). The court first looks to the statute's language, and, if its meaning is plain and unambiguous, the plain wording shall be enforced unless doing so would "'yield an absurd or unworkable result.'" Shirley Wayside Ltd. Partnership v. Bd. of Appeals of Shirley, 461 Mass. 469, 477 (2012) (quoting Adoption of Daisy, 460 Mass. 72, 76 (2011)). The court's objective is "to give effect 'to all its provisions, so that no part will be inoperative or superfluous.'" Shirley Wayside Ltd. Partnership, 461 Mass. at 477 (quoting Connors v. Annino, 460 Mass. 790, 796 (2011)). Mr. Colomba applied for a special permit to convert the existing structure at 334 Pleasant Street to a hotel with a proposed principal use of "lodging." The by law clearly and unambiguously provides that uses not set forth in the Schedule of Use Regulations are prohibited. See By law 1.3 & 3.1. Its intent to be restrictive rather than expansive is further underscored by its provision that "[w]here a use might be classified under more than one of the following categories, the more http://masscases.com/cases/land/2016/2016 16 000219 DECISION.html 4/10

specific category shall determine permissibility. If equally specific, the more restrictive category shall govern." By law 3.2. The only exception is set forth in By law 3.2, under which the ZBA may allow by special permit a use that is "not classifiable under any listed category" if it determines "that the use is similar in its impacts on the neighborhood, the environs and the Town" to a use that is permitted by right or allowed by Special Permit and, further, that the by law's special permit criteria are satisfied. [Note 9] Hotel use is not enumerated in the Schedule of Use Regulations, either by right or by special permit. Had the drafters of the by law intended to allow hotels, they would have expressly included them in the Schedule of Use Regulations. As previously noted, a hotel is a commonly known and distinct type of use, defined in the dictionary as "an establishment providing accommodation and meals for travelers and tourists." Concise Oxford Dictionary 687 688 (10th ed. 1999). It is beyond reasonable interpretation to say that the drafters of the by law, well aware of what a hotel is, intended that they could nonetheless be allowed by special permit without being explicitly listed as a "special permit" use in the Schedule. Moreover, no use set forth in that Schedule is in any way similar to a place of accommodation for individuals in transit. See id.; Doherty, 467 Mass. at 569; By law 3.3. A hotel is certainly not an "agricultural" use. By law 3.3. The uses in the "public and semipublic" category, which includes governmental and institutional uses, also are unlike hotels. See id. Hotels differ from the uses under the "residential" use category because the accommodations they provide are transient, not permanent. See id. Hotels are also distinct from all of the uses under the "business" use category, for none of those uses relate to overnight accommodations. See id. Because a hotel use is so distinct and is so unlike all of the uses permitted by right or by special permit, its impacts cannot reasonably be considered "similar" to those uses within the meaning of the by law. The by law does permit "lodging and boarding" as an accessory use in certain districts, but that use does not encompass hotels, for this reason. Under the bylaw, "lodging and boarding" is the "[r]ental of not more than three rooms... within a dwelling...." By law 1.4. A "dwelling" is "[a] building containing one or more dwelling units," which are "building[s] or portion[s] of a building intended as http://masscases.com/cases/land/2016/2016 16 000219 DECISION.html 5/10

living quarters for a single family... or quarters for up to five persons in a... group dwelling." Id. Hotels accommodate travelers and tourists, not boarders in private homes. See Concise Oxford Dictionary 687 688 (10th ed. 1999). Hotels, like the one Mr. Colomba proposed, would consist of more than three rooms and would not be located within a dwelling. [Note 10] Mr. Colomba concedes that the only permitted use that could pertain to a hotel is "other retail sales and services" under the "business" use category. See Concise Statement of Material Facts in Support of Plaintiff Michael Colomba's Motion for Summary Judgment at 2 3, 8. I disagree that the by law drafters intended "other retail sales and services" to include hotels, and further find that that use does not encompass Mr. Colomba's proposed use. The by law defines "other retail sales and services" as "[a]n establishment primarily engaged in the retail sale of goods, services, and/or products (including baked products, ice cream, and/or candy for consumption off site with no seating provided on site). Such uses may include incidental food service." By law 1.4. The by law does not define "retail." [Note 11] See id. But where, as here, a by law "does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose. We derive the words' usual and accepted meanings from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions." Doherty, 467 Mass. at 569 (internal citations and quotations omitted). The dictionary defines "retail" as "the sale of goods to the public for use or consumption rather than for resale." Concise Oxford Dictionary 1221 (10th ed. 1999). An establishment that sells goods for use or consumption is distinct and different from one that provides travelers and tourists with accommodations and meals. "Other retail sales and services" is thus too dissimilar from hotels for the by law drafters to have intended that use to encompass them. Mr. Colomba contends that the reference to hotels in By law 5.1.2(c) shows that the drafters intended to permit such use. I disagree. The inclusion of hotels in 5.1.2(c) (providing off street parking and loading requirements) is reconciled by at least two other by law provisions authorizing certain deviations from the by law's standard use regulations. First, a hotel in existence prior to the adoption of the bylaw could be allowed as a prior nonconforming use under 1.5. Second, under http://masscases.com/cases/land/2016/2016 16 000219 DECISION.html 6/10

7.6.2, the ZBA could grant a variance authorizing a hotel as an accessory use. For example, a private club (permitted as of right or by special permit in certain districts) could seek an accessory use variance to operate a hotel as an incidental aspect of the club. See By law 3.3 & 7.6.2. I find that the drafters of the by law, cognizant of those provisions, contemplated that hotels could be allowed under such circumstances, and thus established off street parking and loading requirements to apply in them. Because "hotel" is not a use set forth in the Schedule of Use Regulations, and because it is distinct, and its impacts thus "dissimilar," from the by right uses and the uses allowed by special permit, it is prohibited. See By law 1.3, 3.1 & 3.3. The ZBA's decision denying Mr. Colomba's special permit application was thus correct and is affirmed. Conclusion For the foregoing reasons, Mr. Colomba's motion for summary judgment is DENIED, summary judgment is granted to the defendants, and Mr. Colomba's claims are DISMISSED, with prejudice. Judgment shall enter accordingly. SO ORDERED. FOOTNOTES [Note 1] Mr. Colomba's Application for a Special Permit, dated December 30, 2015, proposes: " [t]he conversion of this property for 'lodging' as the principal use. The existing building and footprint shall remain, with minor revisions, and shall be renovated and updated to meet current building codes." Plaintiff's Motion for Summary Judgment Exhibit A. [Note 2] The three special permit applications that the ZBA deemed moot include: (1) to maintain a side setback below the required minimum; (2) to maintain a building height greater than the maximum allowed height; and (3) to operate with fewer parking spaces than the required amount. The ZBA properly decided that those three special applications were moot because, as set forth herein, hotel use is not permitted in Belmont. [Note 3] Under Section 3.1,"[n]o building structure shall be erected, altered or used and no premises shall be used for any other purpose or in any manner other than as regulated by Section http://masscases.com/cases/land/2016/2016 16 000219 DECISION.html 7/10

3.2, Interpretation, and as permitted and set forth in Section 3.3, Schedule of Use Regulations, herein...." [Note 4] The uses set forth in the Schedule of Use Regulations are as follows. "Agricultural" uses include: keeping of livestock other than domestic pets, and other agriculture. "Business" uses include: commercial off street parking lots; motor vehicle repair, sales, and rental; motor vehicle service station; motorized equipment sales, service and rental including equipment powered by internal combustion engine over 10 hp; catering service up to 5,000 square feet; catering service more than 5,000 square feet; restaurant up to 10,000 square feet; restaurant more than 10,000 square feet; restaurant, fast food; restaurant, take out; place of assembly, amusement, or athletic exercise; other retail sales and services; office; manufacturing or fabrication of products of which the major portion is to be sold at retail on the premises and not more than 8 operatives are employed in the manufacturing or fabrication process; other manufacturing and warehousing; wireless telecommunications facility; solar energy system; kennels (commercial or nonprofit) daycare; kennels (commercial or nonprofit) boarding; kennels (commercial or nonprofit) commercial breeder; kennels (commercial or nonprofit) veterinary; and registered marijuana dispensary. "Public and semi public" uses include: religious or educational use exempted from prohibition by Massachusetts General Law, Chapter 40A, Section 3; private school conducted for profit, including nursery, dancing, and music schools; day care center; family day care home; child care, large family; hospital and sanitarium; philanthropic use; private club or lodge owned by members and customarily conducted as a nonprofit activity operated for members only; private club or lodge owned by members and customarily conducted as a nonprofit activity other; municipal recreational use; municipal cemetery; other municipal use; and school aged child care home. "Residential" uses include: detached single family dwelling; two family dwelling; conversion of large public buildings or public or private school buildings with 10,000 square feet of gross floor area or less; conversion of large public buildings or public or private school buildings with more than 10,000 square feet of gross floor area; elderly housing; cluster development; other apartment house. [Note 5] An "accessory use" is: [a]n activity incidental to and located on the same premises as a principal use conducted by the same person or his agent. No use (other than parking) shall be considered 'accessory' unless functionally dependent on and occupying less land area than the principal use, except for institutional (religious or educational uses) parking lots used by others, with owner's consent, not conducting business within such institution. By law 1.4. [Note 6] A "dwelling" is "[a] building containing one or more dwelling units separated by side yards from any other structure or structures except accessory buildings." By law 1.4. A "dwelling unit" is: http://masscases.com/cases/land/2016/2016 16 000219 DECISION.html 8/10

[a] building or portion of a building intended as living quarters for a single family having a single set of kitchen facilities (a stove plus either or both refrigerator and sink) not shared with any other unit; or quarters for up to five persons in a dormitory, congregate dwelling, or similar group dwelling. Id. [Note 7] "Lodging" is "a temporary place of residence; a rented room or rooms usually in the same residence as the owner." Concise Oxford Dictionary 834 (10th ed. 1999) (emphasis added). A "boarding house" is "a private house providing food and lodging for paying guests." Id. at 152. In contrast, a "hotel" is "an establishment providing accommodation and meals for travelers and tourists." Id. at 687 688. [Note 8] A special permit is required "if new construction, additions, or alterations result in more than 5,000 square feet gross floor area in any one or more business uses... on a lot or set of contiguous lots in the same ownership at any time subsequent to June 1, 1987, except for individual additions or alterations increasing floor area in business use on the lot or set of lots by less than 10%." By law 3.1 & 3.3. [Note 9] I question whether that is an improper delegation of a legislative function to the ZBA, but need not, and do not, decide that issue because it is of no consequence in this case. As set forth herein, hotel use is prohibited under the by law and is so unlike all of the allowed uses that, even assuming 3.2 is valid, the ZBA could not properly permit hotel use under that section. [Note 10] Another reason Mr. Colomba's proposed use is not allowed as "lodging and boarding," which is permitted in the LB III district only as an accessory use, is because, as explicitly stated in his special permit application, "lodging" is the intended "principal use" of the proposed hotel. See By law 1.3, 1.4, 3.1 & 3.3; Plaintiff's Motion for Summary Judgment Exhibit A. [Note 11] The by law also does not define "establishment." See By law 1.4. Mr. Colomba contends that the term "establishment" by definition includes "hotels" because the Supreme Judicial Court once explained the term as follows: We think that 'establishment' is meant to embrace premises... where labor is performed and without attempting to name them all such as stores, banks, theatres and other places of amusement, laundries, garages, hotels, restaurants, office buildings, shipyards, newspaper and printing offices, insurance buildings, express and transportation buildings, repair shops, telephone and telegraph offices, and barber and hair dressing shops. Ford Motor Co. v. Div. of Employment Sec., 326 Mass. 757, 762 (1951) (emphasis added). Mr. Colomba's argument is not persuasive. Hotels are certainly one of many different types of establishments, but that does not mean, as Mr. Colomba suggests, that the term "establishment" must always encompass hotels. Under the by law, "other retail sales and services" includes only those establishments "primarily engaged in the retail sale of goods, services, and/or products," and, as set forth herein, the proposed hotel is not such an establishment. By law 1.4. http://masscases.com/cases/land/2016/2016 16 000219 DECISION.html 9/10

Home/Search Land Cases by Docket Number Land Cases by Date Land Cases by Name Commonwealth of Massachusetts. Trial Court Law Libraries. Questions about legal information? Contact Reference Librarians. http://masscases.com/cases/land/2016/2016 16 000219 DECISION.html 10/10