Daly Dry Wall, Inc. v. Board of Appeals , 3 Mass. App. Ct. 706 ( 1975 )

1. The changes made by the planning and zoning board on or about February 17, 1972, in the proposal which had originally been aired at the duly advertised public hearing held by that board on February 9, 1972, under G. L. c. 40A, § 6 (as amended through St. 1968, c. 194), did not change the substantial character of the original proposal so as to require a second public hearing before the changed proposal could be adopted by the town meeting held on March 23, 1972. Burlington v. Dunn, 318 Mass. 216, 218-219 (1945), cert. den. 326 U. S. 739 (1945). Doliner v. Town Clerk of Millis, 343 Mass. 10, 11-13 (1961). See also Johnson v. Framingham, 354 Mass. 750, 753-754 (1968). Contrast Fish v. Canton, 322 Mass. 219, 223-224 (1948). 2. The amendments of the by-law which were adopted by that town meeting had taken effect under G. L. c. 40, § 32 (as most recently amended by St. 1967, c. 308), prior to the filing of the application for the building permit and, for the reasons stated in Bellows Farms Inc. v. Building Inspector of Acton, 364 Mass. 253, 256-262 (1973), applied to Lots 1 and 2 on Old Foundry Street notwithstanding the provisions now found in the second paragraph of G. L. c. 40A, § 7A (as most recently amended by St. 1965, c. 366, § 1). 3. In view of the stipulations at trial concerning Lot 6 on Norton Avenue (prompted, perhaps, by the provisions of the first paragraph of said § 7A; compare Green v. Board of Appeal of Norwood, 358 Mass. 253, 256-257 [1970]), the order for decree is to be modified so as to require the issuance of a building permit for that lot (if the plaintiff insists thereon). A final decree is to be entered which provides for the issuance of such a permit (if the plaintiff insists) but which determines that the decision of the board of appeals was not otherwise in excess of that board’s authority. Costs of appeal are not to be awarded to any party.

So ordered.