Posted by: Patricia Salkin | January 30, 2018

MA Appeals Court Holds Dunkin’ Donuts was Properly Classified as Retail Use

This post was authored by Amy Lavine, Esq.

A Massachusetts court held in 2017 that a proposed Dunkin’ Donuts was properly classified as a permitted retail use in the rural business district. Although the Hopkinton planning board had approved the application, the trial court reversed and held that the Dunkin’ Donuts was a “restaurant,” not a retail use, and because it was a take-out restaurant, the trial court reasoned that it was a prohibited use in the rural business district. The Massachusetts Court of Appeals reversed the trial court, however, and affirmed the decision of the board classifying the Dunkin’ Donuts as a retail shop.

Although the ordinance did not provide definitions for “retail” or “restaurant,” the court found dictionary definitions to be sufficient. A restaurant, the court explained, was commonly defined as an “establishment where refreshments or meals may be procured by the public,” and a retail store was “a place of business… in which merchandise is sold primarily to ultimate consumers.” Based on these definitions, the court determined that the proposed Dunkin’ Donuts could reasonably be classified as either a restaurant or a retail use, and the trial court should have deferred to the board on this point. The court also explained that while the ordinance only permitted restaurants “where all customers are seated,” that did not mean that all other food service uses were per se prohibited, and nothing in the ordinance suggested that retail stores couldn’t sell food products. Moreover, the proposed Dunkin’ Donuts would only sell items for take out, and the limited food preparation involved could therefore be considered as accessory to the primary retail use of the property. Finally, the court rejected the argument that the Dunkin’ Donuts should have been classified as a restaurant due to the fact that it would be subject to a “meals” tax under state law, because there was no indication that the zoning ordinance intended to adopt the same classification for “restaurants” as used in the tax code.

Accordingly, because it was reasonable for the board to classify the Dunkin’ Donuts as a retail store, the trial court’s decision was in error.

Coco Bella LLC v. Town of Hopkinton Bd. of Appeals, 92 Mass. App. Ct. 1102 (8/3/17)

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