Opinion
19-P-724
04-02-2020
Mason BROWNE & others v. ZONING BOARD OF APPEALS OF ROCKPORT & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The appellants, three residents of Rockport, challenge a Superior Court judge's grant of summary judgment in favor of the members of the zoning board of appeals of Rockport (board) and Turks Head, LLC (Turks Head) (the owner and operator of the Cape Hedge Inn [property] ), affirming the board's determination that the property is an "inn" as that term is defined in Rockport's zoning bylaw (bylaw). For the reasons stated infra, we affirm.
A. Background. We summarize the uncontested facts from the summary judgment record, reserving certain of them for later discussion. From 1888 until 1963, the property was operated as a summer hotel. See Berliner v. Feldman, 363 Mass. 767, 768 (1973). With the adoption of the bylaw in 1951, the property became part of a "residential district," in which an "inn or hotel" was not a permitted use. The property, however, was authorized to continue its operations under the bylaw's provision for preexisting nonconforming uses.
Fire in the late 1960s or early 1970s seriously damaged the property. Ultimately, the Supreme Judicial Court ruled that the property's owner could rebuild, provided he operated the business there as a "hotel." , See Berliner, 363 Mass. at 777. The owner did rebuild, and continued to run the property as an inn. A subsequent owner later made additional changes to the property, including adding kitchens or kitchenettes to many of the rooms, merging several adjoining single units into two-room guest suites, and closing the on-site restaurant and pool.
At the time of the ruling, the bylaw defined "inn" and "hotel" interchangeably.
The ruling, which also permitted the owner to modernize certain aspects of the building in the course of rebuilding it, and to operate the property on a year-round basis, was based in part on the court's assessment of the " ‘permissive spirit’ [of the bylaw] with respect to tolerance of nonconforming uses and their expansion." Berliner, 363 Mass. at 777.
When Turks Head acquired the property in 2014, there were approximately twenty occupants in place, most, if not all, of whom had been there for more than ninety days. The same was true at all times relevant to this appeal.
In 2016, the appellants contacted Rockport's building inspector, reporting that the property was being used impermissibly as a "multiple dwelling" and not as an "inn" ; they sought enforcement of the bylaw against the property on that basis. Noting the bylaw's "broad" definitions, the building inspector denied the appellants' enforcement requests. The appellants then appealed to the board, and, after the board affirmed the building inspector's decision, the appellants sought judicial review of the board's decision in the Superior Court. See G. L. c. 40A, § 17. The parties filed cross motions for summary judgment; in a detailed memorandum, the judge allowed Turks Head's motion for summary judgment and denied the appellants' motion. This appeal followed.
A "multiple dwelling" is defined in the bylaw as "[a] structure consisting of three or more dwelling units." The bylaw defines a "dwelling unit" as "[o]ne or more rooms arranged for the use of one or more individuals living together as a single housekeeping unit, with cooking, living, sanitary and sleeping facilities." Relevant to our later discussion, under the bylaw, an "apartment house" is defined this way: "Apartment house: See Mixed Use or Multiple Dwelling (Amended FTM 9-12-11)."
An "inn" is defined in the bylaw as "[a] building erected for or used for paying guests, permanent or transient, where over six (6) bedrooms are used for such purpose."
B. Discussion. We review the judge's rulings on the parties' cross motions for summary judgment de novo, viewing the evidence in the light most favorable to the appellants, as the parties against whom judgment entered. See Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245, 248-249 & n.4 (2010). We will not disturb the decision of the board "unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." Glidden v. Zoning Bd. of Appeals of Nantucket, 77 Mass. App. Ct. 403, 406 (2010), quoting Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 486 (1999). The interpretation of the meaning of words used in a zoning bylaw is a question of law, see Building Comm'r of Franklin v. Dispatch Communications of New England, Inc., 48 Mass. App. Ct. 709, 713 (2000) ; however, we give deference to a zoning board's reasonable construction of its own zoning bylaws, see Glidden, supra at 406, as well as to a board's reasonable definition of undefined terms. See Tanner v. Board of Appeals of Boxford, 61 Mass. App. Ct. 647, 649 (2004).
The appellants focus their argument on their claim that the decision was untenable.
We begin by rejecting the appellants' argument that the board's determination that the property was an "inn," rather than a "multiple dwelling" (an unpermitted use under the bylaw) constituted a nullification of the bylaw's definition of either an "inn" or a "multiple dwelling." The phrase, "consisting of three or more dwelling units" used in the definition of a "multiple dwelling" is open to several reasonable interpretations; one such interpretation is "limited in its composition to three or more" such units. Using that definition, even assuming that those rooms at the property that were fitted with kitchens qualified as "dwelling units" for the purposes of the bylaw, the fact that the property included rooms without kitchens would mean that the property did not "consist[ ] of ... dwelling units." For that reason, as the board implicitly determined, the property was not a "multiple dwelling." That interpretation of the bylaw did not require a nullification of the definition of either "inn[s]" or "multiple dwelling[s]," and so was not legally untenable on that basis. See Plourde v. Police Dep't of Lawrence, 85 Mass. App. Ct. 178, 186 (2014), quoting Flemings v. Contributory Retirement Appeal Bd., 431 Mass. 374, 375-376 (2000) ("If a sensible construction is available, [a court] shall not construe a statute to make a nullity of pertinent provisions or to produce absurd results").
The bylaw defines a "dwelling unit" as "[o]ne or more rooms arranged for the use of one or more individuals living together as a single housekeeping unit with cooking, living, sanitary and sleeping facilities."
We turn next to consideration of the board's 2016 determination that the property continued at that time to be an "inn" for the purposes of the bylaw. Like the motion judge, we rely for guidance on the three-prong test set out in Powers v. Building Inspector of Barnstable, 363 Mass. 648, 653 (1973), asking: (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 than the prior use. See id. Bearing in mind that our task is to determine whether the board's conclusion that the three prongs of this test were met was legally tenable, we conclude that it was, and affirm. See Almeida v. Arruda, 89 Mass. App. Ct. 241, 244 (2016) (addition of beer and wine sales at convenience store did not constitute substantial change in use where all three prongs of test were satisfied).
1. Nature and purpose of current use. To the extent that the property's operations changed between the time of its original designation as a preexisting nonconforming use and the board's decision in 2016, they did not change the fundamental nature and purpose of the property's use as an inn. Cf. Cape Resort Hotels, Inc. v. Alcoholic Licensing Bd. of Falmouth, 385 Mass. 205, 212 (1982) (transition of property from "full-service resort hotel" to "largest entertainment complex on Cape Cod" constituted dramatic change in nature and purpose of use). The property's use has always been defined to allow it to serve both "permanent and transient" "guests." The fact that the bylaw specifically contemplated and allowed "permanent" guests effectively forecloses the appellants' argument that long-term occupants of the property cannot be "guests." The fact that most occupants in 2016 chose to be "permanent" rather than "transient" did not change anything significant in the nature of the property.
We also find no support in the record or in the law for the proposition that a long-term "guest" with no fixed plan to leave a host's property cannot use the address on his or her driver's license or other legal documents.
We are unpersuaded that the menu of amenities offered by the property in 2016 demonstrated that its use at that time was inconsistent with its status as an "inn." As the board noted, the property provided occupants with furniture, including beds, television sets, and bureaus; a number of amenities were offered free of cost, including premium cable and Internet service, along with some additional a la carte services like housekeeping and laundry service. These services are, as the board concluded, consistent with the services commonly provided by inns and hotels. Additionally, it is undisputed that other facets of the property's operation are consistent with those of an inn, rather than those of a landlord: the occupants of the property executed no leases; had the option of paying at intervals of their own choosing; were subject to the owners' entry into their units at will; and could have left or been turned out of the property for the same reasons and with the same lack of notice as any hotel guest might have been. Certain of the less traditional features of the property's operation, for example, its use of a key-card access system rather than a front desk, we conclude, could have been viewed, as the board apparently viewed them, not as changes in use but as reflections of the property's strategy for "meeting a [local] need for lower cost rooms." Other features, including the property's acceptance of mail deliveries for occupants, and the occupants' ability to bring items of their own furniture into the building, could reasonably be viewed as mere concessions to the preferences and convenience of people making the long-term stays permitted by the bylaw.
We acknowledge the undisputed evidence that, as a condition of obtaining financing for the purchase, Turks Head's owner, Alan Battistelli, executed a "Conditional Assignment of Leases and Rents" prepared by the lending bank, and the seller filed a "rent roll" for the property, identifying the "rents" for twenty-nine of the property's rooms. In light of the additional undisputed evidence that there were no "leases" attached to the conditional assignment document, the seller's characterization of the room rates listed on the "rent roll" as "rent" does not alter our conclusion that the occupants were neither charged, nor paid, "rent."
Lastly, whatever the effect of the property's failure to "provide[ ] suitable food for strangers and travelers" on its owner's ability to maintain an innkeeper's license, see G. L. c. 140, § 5, (a point on which we express no opinion) such facilities are not explicitly required under the bylaw. Although the licensing statute permits a holder to operate an inn, the statute does not define what qualifies as an "inn." See G. L. c. 140, § 6. The fact that a property does not satisfy the qualifications for licensure does not, on that basis alone, disqualify it as an "inn" under the terms of the bylaw. Cf. Tamerlane Realty Trust v. Board of Appeals of Provincetown, 23 Mass. App. Ct. 450, 454-455 (1987) (possession of innkeeper's license suggests holder's intent to operate inn, but does not itself transform holder's business into inn).
We are not persuaded by the property's contention that the kitchens and kitchenettes provided in many of the units are a substitute for the provision of "suitable food" called for in G. L. c. 140, §§ 5 -6.
--------
None of these facts, in our view, demonstrate the increased rights that are among the hallmarks of a "tenant," as compared to a guest. See, e.g., G. L. c. 186, § 13 (hotel guests not entitled to statutory notice to quit); Cambridge St. Realty, LLC v. Stewart, 481 Mass. 121, 128 (2018) (legally adequate notice to quit is condition precedent to summary process action).
2. Quality, character, and degree of use. "The second prong may be satisfied when a proposed use is ‘reasonably adapted to the prior use,’ is not ‘extraordinary or unreasonable,’ and does not ‘change the fundamental nature of the original enterprise.’ " Almeida, 89 Mass. App. Ct. at 246, quoting Barron Chevrolet, Inc. v. Danvers, 419 Mass. 404, 411 (1995). Here, the record supports the board's conclusion that the changes highlighted by the appellants -- the rise in long-term occupancy, the streamlining of the complimentary amenities offered, and the reliance on word-of-mouth advertising to market the property -- were all reasonable adaptations in how the property served the changing needs of Rockport's "guest" demographic. We are not persuaded that the board's implicit determination that these changes did not alter the property's fundamental nature was an "untenable" one. Cf. Bridgewater v. Chuckran, 351 Mass. 20, 23-24 (1966) (development of backyard lumber business into modern, elaborate concrete operation constituted change in quality and character of use).
3. Effect on the neighborhood of current use. Finally, although the appellants do not argue the impact of the third prong of the Powers test, to the extent that we consider it, we agree with the judge's determination that the only identifiable impact of the current use is a reduction in local traffic.
C. Conclusion. Reviewing the summary judgment record de novo, we conclude that the appellants have failed to demonstrate that the board's determination that the property was an "inn" for the purposes of the bylaw was legally untenable. Accordingly, we affirm the entry of summary judgment in favor of the board and Turks Head.
Judgment affirmed.