Penn v. Town of Barnstable

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
18-P-1124 Appeals Court
FELICIA R. PENN & another1 vs. TOWN OF BARNSTABLE & others.2
No. 18-P-1124.
Suffolk. April 11, 2019. - October 7, 2019.
Present: Hanlon, Desmond, & Shin, JJ.
Zoning, Amendment of by-law or ordinance. Municipal
Corporations, Town council. Statute, Construction. Moot
Question. Practice, Civil, Moot case.
Civil action commenced in the Land Court Department on
January 5, 2017.
The case was heard by Michael D. Vhay, J., on motions for
summary judgment, and motions to amend the judgment were
considered by him.
Charles S. McLaughlin, Jr., Assistant Town Counsel, for
town of Barnstable.
Edward W. Kirk for the plaintiffs.
SHIN, J. Pursuant to G. L. c. 40A, § 5, sixth par., once a
municipal legislative body rejects a proposed zoning ordinance
1 Philip R. Doherty, trustee.
2 Hyannis Harbor Tours, Inc., and Marina Atsalis.
2
or bylaw, it generally may not reconsider the same proposal for
two years. At issue is whether the town of Barnstable's (town)
legislative body, its town council, violated the two-year bar
when it adopted a zoning amendment calling for the creation of
the Hyannis Parking Overlay District (HPOD), despite having
rejected a similar proposal to create the HPOD a few months
earlier. On the parties' cross motions for summary judgment, a
judge of the Land Court concluded that the two proposals were
substantially the same, triggering application of the two-year
bar and annulling the town's adoption of the amendment. We
agree and thus affirm.
Background. The relevant facts are undisputed. In 2013
the town supervised a study of commercial parking lots in and
around Hyannis Harbor and determined that, while all of the lots
had valid operating licenses, not all had zoning approval. The
town also determined that in some instances there were
inconsistencies between the number of parking spaces allowed by
the licensing authority and the number of parking spaces
approved by the zoning authority.
To resolve these discrepancies and create uniformity, a
subcommittee of the town council proposed in December 2015 to
amend the town's zoning ordinance to create the HPOD, which
would overlay two existing districts, a residential district and
the Harbor District. The town council placed the proposed
3
amendment on its legislative docket as Item No. 2016-54. The
overarching purpose of the amendment was to authorize "as of
right" operation of commercial parking lots on land within the
HPOD that "ha[d] some legal pre-existing nonconforming status or
[were] licensed as of May 1, 2014 as an open air parking lot
involving the temporary storage of vehicles." The amendment
then set out site-development standards governing operation of
the lots within the HPOD; those standards addressed, among other
things, the number of parking spaces allowed on the lots,
dimensional requirements, and demarcation of emergency-access
aisles and property boundaries.
The town council voted to refer Item No. 2016-54 to the
town's planning board, which held a public hearing on the
proposal in February 2016.3 Afterward, the board members voted
four to one not to recommend adoption of Item No. 2016-54,
partly on the belief that the amendment should be deferred until
a further parking study was completed. On March 24, 2016, the
town council took its own vote on the proposal,4 with seven
3 See G. L. c. 40A, § 5, second par. ("No zoning ordinance
or by-law or amendment thereto shall be adopted until after the
planning board in a city or town, and the city council . . . has
each held a public hearing thereon, together or separately, at
which interested persons shall be given an opportunity to be
heard").
4 A planning board's recommendation whether to adopt a
zoning amendment is "advisory in nature." Wallace v. Building
Inspector of Woburn, 5 Mass. App. Ct. 786, 787 (1977).
4
members voting for adoption and four members voting against it.
This resulted in Item No. 2016-54 failing to pass for lack of
two-thirds support.5
Two weeks later the town council voted to "reconsider" Item
No. 2016-54 and posted notice that it would do so at its May 5,
2016 meeting, which was later continued to June 16, 2016. At
the June 16 meeting, however, the council voted instead to
"withdraw[]" Item No. 2016-54, stating its "understanding [that]
future changes will be made to this agenda item." The council
then docketed a new item, which it called Item No. 2016-166, and
voted to refer it to the planning board and to schedule a joint
public hearing on July 21, 2016.
Item No. 2016-166 differed from Item No. 2016-54 in three
ways. First, in the definitions section, Item No. 2016-166
clarified that "[c]ommercial surface parking lots shall not
include structures, fully or partially enclosed, that
accommodate vehicle parking spaces." Second, in the section
governing computation of parking spaces, Item No. 2016-166 added
in two places a proviso that "the number of Commercial Surface
Parking spaces shall not exceed the number determined as of the
effective date of this ordinance," even where other uses of a
5 See G. L. c. 40A, § 5, fifth par. ("No zoning ordinance or
by-law or amendment thereto shall be adopted or changed except
by a two-thirds vote of all the members of the town council").
5
parcel are "subsequently discontinued." Third, Item No. 2016-
166 added a requirement that "[t]he lot owner shall submit to
the Building Commissioner a plan of the Commercial Surface
Parking lot drawn and stamped by a Registered Professional Land
Surveyor" and specified that "[a]ny changes to the lot
boundaries or internal configuration shall require that a new
record parking plan be prepared and filed in the same manner."6
At the public hearing on July 21, 2016, the town council
and the planning board jointly heard testimony, at the close of
which the planning board voted three to two to recommend
approval of Item No. 2016-166. The town council then voted
(1) eleven to two that "Item [No.] 2016-166 is not a proposed
zoning ordinance which has been previously acted upon
unfavorably by the [t]own [c]ouncil and is not the same
ordinance which was unfavorably acted upon by the [t]own
[c]ouncil as Item [No.] 2016-54"; (2) ten to three that "Item
[No.] 2016-166 contains specific, substantive, and material
changes that distinguish it from the content of Item [No.] 2016-
54"; and (3) eleven to two to adopt Item No. 2016-166.
In January 2017 the plaintiffs, who are owners of homes
located adjacent to some of the parking lots included in the
6 Item No. 2016-54 also required the preparation of a
"record parking plan drawn and stamped by a Registered
Professional Land Surveyor" but did not expressly require that
the lot owner file the plan with the town.
6
HPOD, filed a complaint for declaratory relief in the Land Court
challenging the town council's adoption of Item No. 2016-166.
The plaintiffs sought annulment of the town council's vote on
numerous grounds, including that the vote was invalid under
G. L. c. 40A, § 5, sixth par., because it came within two years
of the council's rejection of Item No. 2016-54. The judge
allowed the plaintiffs' motion for summary judgment on that
basis, denied the town's cross motion for summary judgment, and
entered judgment annulling the town's adoption of the amendment.7
The judge declined to address the plaintiffs' other arguments.
Both the town and the plaintiffs filed motions under Mass. R.
Civ. P. 59, 365 Mass. 827 (1974), to amend the judgment, which
the judge denied. The town then appealed the judgment and the
judge's order denying its rule 59 motion. The plaintiffs cross-
appealed, claiming that they are entitled to declaratory relief
on the arguments not addressed by the judge in his decision.8
7 The judge also dismissed the plaintiffs' claims against
defendants Hyannis Harbor Tours, Inc., and Marina Atsalis. On
appeal, the plaintiffs make no argument as to the dismissal of
the claims against these defendants.
8 Those arguments are as follows: (1) Item No. 2016-166 was
contrary to the town's land-use and planning objectives and not
substantially related to the public health, public safety,
public welfare, or public morals; (2) G. L. c. 40A, § 5,
required that the planning board prepare a written report with
recommendations, which it failed to do; (3) the planning board
had the right to determine in the first instance whether Item
No. 2016-166 was the same as Item No. 2016-54; and (4) the
7
Discussion. 1. Mootness. We address at the threshold
whether there remains an actual controversy between the parties.
The parties agree that the issue raised by the town's appeal --
whether the two-year statutory bar invalidated the vote on Item
No. 2016-166 -- is moot because, now that two years have passed
since the town council rejected Item No. 2016-54, there is no
bar to either proposal being reintroduced and reconsidered. The
parties urge us nonetheless to reach the issue because it is of
public importance and capable of repetition, but could evade
review. See Seney v. Morhy, 467 Mass. 58, 61 (2014). We need
not decide whether that exception to the mootness doctrine
applies, however, because we conclude that the issue is not
moot. Were we to determine that the vote on Item No. 2016-166
was valid, it would result in reversal of the judge's annulment
of the amendment, and there would be no need for reconsideration
or revote by the planning board or the town council. Because
our decision could therefore affect the concrete interests of
the parties, the issue is not moot. See Matter of M.C., 481
Mass. 336, 343 (2019).
With regard to the plaintiffs' cross appeal, the parties
again agree that the issues presented are moot but that we
should still decide them. We decline to do so. Because we
planning board did not hold a hearing that complied with G. L.
c. 40A, § 5.
8
conclude, as discussed further below, that the two-year bar
precluded the town council from considering Item No. 2016-166,
we need not address the various other claims pressed by the
plaintiffs. See note 8, supra. It is uncertain whether those
issues will arise in the future; even were the town to
reintroduce Item No. 2016-166, there will be new public
hearings, new testimony, and new votes taken by both the
planning board and the town council. Furthermore, if the issues
do reemerge, they would not evade review. The plaintiffs are
not entitled to an adjudication of their claims in these
circumstances. See Libertarian Ass'n of Mass. v. Secretary of
the Commonwealth, 462 Mass. 538, 547 (2012) ("declaratory relief
is reserved for real controversies and is not a vehicle for
resolving abstract, hypothetical, or otherwise moot questions");
M.C., v. Commissioner of Correction, 399 Mass. 909, 911 (1987)
(court "should not decide a moot issue if it has become a
theoretical dispute, if it is not apt to evade review should it
arise again, or if it is not likely to recur").
2. Applicability of two-year statutory bar. We turn to
the question presented by the town's appeal. The statutory
provision at issue states:
"No proposed zoning ordinance or by-law which has been
unfavorably acted upon by a city council or town meeting
shall be considered by the city council or town meeting
within two years after the date of such unfavorable action
9
unless the adoption of such proposed ordinance or by-law is
recommended in the final report of the planning board."9
G. L. c. 40A, § 5, sixth par. The purpose of the two-year bar
is to give some measure of finality to unfavorable action taken
by a municipal legislative body so that "members of the public
shall be able to ascertain the legislative status of a proposed
change at all times, and to rely on unfavorable action . . . as
a complete defeat of the proposal." Kitty v. Springfield, 343
Mass. 321, 326 (1961) (discussing predecessor statute).
In Kitty the Supreme Judicial Court construed the two-year
bar to apply to "any new action of the same character" as a
previously defeated proposal. Kitty, 343 Mass. at 324. While
no reported decision has addressed what it means for proposals
to be "of the same character" for purposes of G. L. c. 40A, § 5,
sixth par., we are guided by cases decided in two analogous
contexts.
9 The judge construed the "unless" clause of the statute as
referring to a planning board's final report on the earlier,
defeated proposal. That is, as applied to this case, the judge
concluded that, because the planning board voted against
recommending adoption of Item No. 2016-54, the two-year bar
applied even though the planning board later voted in favor of
Item No. 2016-166. In its reply brief, the town suggests that
the judge erred and that the relevant final report is the
favorable vote that the planning board recorded on Item No.
2016-166. The plaintiffs, for their part, appear to agree with
the town's reading of the "unless" clause, but argue that the
town council "considered" Item No. 2016-166 before the planning
board's vote on that item. We do not reach these issues,
neither of which has been adequately briefed.
10
First, several cases have considered whether new notice
must be posted, and another hearing held, before a planning
board or municipal legislative body can vote to recommend or
adopt an amendment that is different from the one delineated in
the original notice. The notice requirement is contained in the
second paragraph of G. L. c. 40A, § 5, and provides that notice
must be given "of the time and place of [the] public hearing, of
the subject matter, sufficient for identification, and of the
place where texts and maps thereof may be inspected"; any defect
in the notice will not invalidate a vote, however, "unless such
defect is found to be misleading." In analyzing predecessor
statutes, courts have held that, when changes are made to a
proposal during the legislative process, whether new notice and
hearing are required depends on the degree of similarity between
the amendment originally proposed and the one ultimately
recommended or adopted. Specifically, new notice and hearing
are not required if the changes to the original proposal are
"not of a fundamental character." Burlington v. Dunn, 318 Mass.
216, 218 (1945).10 Though the town contends that the purposes
10Accord Johnson v. Framingham, 354 Mass. 750, 752-753
(1968); Sullivan v. Selectmen of Canton, 346 Mass. 784 (1964);
Fish v. Canton, 322 Mass. 219, 223 (1948). See also Doliner v.
Town Clerk of Millis, 343 Mass. 10, 12-13 (1961) ("[c]hanges
made by the planning board after the public hearing" did not
render amendment invalid because they "did not change the
substantial character" of original proposal).
11
underlying the notice requirement and the two-year bar differ,
the purposes are at least related -- to let the public know
which amendments are up for consideration and which ones have
been rejected. The notice cases are therefore instructive given
the settled canon of construction that the parts of a statute
"shall be construed as consistent with each other so as to form
a harmonious enactment effectual to accomplish its manifest
purpose." Worcester v. College Hill Props., LLC, 465 Mass. 134,
139 (2013), quoting Selectmen of Topsfield v. State Racing
Comm'n, 324 Mass. 309, 313 (1949).
Second, in Bogertman v. Attorney General, 474 Mass. 607,
620 (2016), the Supreme Judicial Court considered the meaning of
the provision in art. 48 of the Amendments to the Massachusetts
Constitution prohibiting the certification of initiative
petitions that are "substantially the same as any measure which
has been qualified for submission or submitted to the people at
either of the two preceding biennial state elections." The
court construed this provision to bar any measure that "affirms
or negates essentially the same provisions [as a previous
measure], with little or no substantive difference." Id. at
621. We find Bogertman likewise instructive, as the aim of the
art. 48 bar is similar to that of G. L. c. 40A, § 5, sixth par.
-- "to prevent the constant forcing of . . . questions which
12
have been rejected" (quotation and citation omitted).
Bogertman, supra at 620.
With these cases guiding us, we conclude that proposed
ordinances or bylaws are the same for purposes of G. L. c. 40A,
§ 5, sixth par., if they share the same fundamental or essential
character, with little substantive difference. And applying
this standard to the facts, we have little trouble concluding
that Item No. 2016-166 was the same as Item No. 2016-54. As
discussed, the only differences between the two items were that
Item No. 2016-166 clarified that the HPOD does not include fully
or partially enclosed parking structures,11 clarified that lot
owners could not create more parking spaces by discontinuing
other uses on their parcels, and required that lot owners file
parking plans with the town. These were amendments that merely
facilitated enforcement of Item No. 2016-54. They did not
change the fundamental and essential character of the item -- to
allow for as-of-right operation of commercial parking lots
through creation of the HPOD.12
11We note that Item No. 2016-54 already provided that the
amendment was intended to apply to "open air parking lots."
12See Johnson, 354 Mass. at 752 (proposed zoning bylaw
authorizing golf clubs and tennis courts not fundamentally
changed by provisions omitting tennis courts and prescribing
minimum size for golf clubs); Sullivan, 346 Mass. at 784
(extending length of proposed zoning district was not
"fundamental" change); Doliner, 343 Mass. at 13 (changing zoning
for some small areas on map "did not change the substantial
13
Citing Ranney v. Board of Appeals of Nantucket, 11 Mass.
App. Ct. 112 (1981), the town argues that we must defer to the
town council's findings that the proposals were not the same and
that "Item [No.] 2016-166 contains specific, substantive, and
material changes that distinguish it from the content of Item
[No.] 2016-54." But Ranney concerned a different statute, G. L.
c. 40A, § 16, which imposes a two-year bar on a municipal
authority's reconsideration of a rejected application for a
variance or special permit. The critical difference between
that statute and G. L. c. 40A, § 5, sixth par., is that the two-
year bar of § 16 does not apply if the local "authority finds
. . . specific and material changes in the conditions upon which
the previous unfavorable action was based, and describes such
changes in the record of its proceedings." G. L. c. 40A, § 16.
It was this language that was the basis for the Ranney court's
determination that deference to the local board was warranted.
See Ranney, supra at 115-116. In contrast, G. L. c. 40A, § 5,
sixth par., gives the municipal legislative body no role in
deciding whether a proposed ordinance or bylaw is the same as
one previously rejected. Ultimately, that is a question of law
character of the [proposed bylaw]"); Dunn, 318 Mass. at 218-219
(similar). Cf. Fish, 322 Mass. at 223 ("identity of the
original propos[al]" to repeal zoning bylaw was "utterly
changed" by adoption of amendments "reducing the area
requirements in two kinds of districts and transferring certain
land from one district to another").
14
for the courts to decide. See Onex Communications Corp. v.
Commissioner of Revenue, 457 Mass. 419, 424 (2010).
Because we conclude here that, as a matter of law, Item No.
2016-54 and Item No. 2016-166 were fundamentally and essentially
the same, the town council's rejection of Item No. 2016-54
precluded it from considering Item No. 2016-166 for two years.
The vote on Item No. 2016-166 therefore came too soon, and the
judge was right to annul it.
Judgment affirmed.
Order denying motions to
amend judgment affirmed.