Cerel v. Town of Natick , 2 Mass. App. Ct. 822 ( 1974 )

This petition was brought under G. L. c. 185, § 1 (j Vi), and G. L. c. 240, § 14A, to determine the applicability of a provision of the zoning by-law of the town of Natick to land of the petitioner. The petitioner has appealed from a decision of the Land Court made upon a statement of agreed facts. Under Article 1 of the warrant for a special town meeting held on June 17, 1969, the town voted to amend the zoning by-law by establishing a new type of use district, viz., “Planned Cluster Development” (PCD). The town also voted under Article 2 of that warrant to amend its zoning map to rezone other land known as the “Bianchi Property” as a PCD district. A subsequent town meeting refused to adopt an article to rezone the petitioner’s land as a PCD district. In his central argument the petitioner relies on the following sentence in the PCD amendment: “It is specified that only land areas containing 4,500,000 square feet or more shall be included in the P.C.D. district.” He contends that this sentence automatically created a “floating zone” with the result that any parcel of land meeting this area requirement would, without further action by the town meeting, be rezoned as a PCD district. Contrary to the petitioner’s contention, it is clear that the quoted provision of the PCD amendment merely states the minimum size which such a district must have, just as other portions of the amendment describe design, construction and operational criteria deemed desirable in such a district. The amendment adopted under Article 1 changed no boundaries of any existing district. It neither generated automatic rezoning of the petitioner’s land nor designated any other land within the town as a PCD district. By its vote under Article 1 the town simply intended to create a new type of district to which land could subsequently be assigned by amendment of the zoning map (Zoning By-Laws, § II, subsection IIB, 1) pursuant to a separate vote of the town meeting. G. L. c. 40A, § 6, as amended. The decision is affirmed and costs of the appeal are to be awarded to the respondents.

Burton L. Schafer (Philip L. Cohen with him) for Martin Cerel, trustee. Robert Tuchmann for Robert W. Eisenmenger & others, inter-veners. Acheson H. Callaghan, Jr. (Reginald H. Howe with him) for the town of Natick.

So ordered.