Home DALY DRY WALL, INC. vs. BOARD OF APPEALS OF EASTON & another.

3 Mass. App. Ct. 706

February 5, 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, Section 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, Section 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, Section 7A (as most recently amended by St. 1965, c. 366, Section 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 Section 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.

Home MERRY MOUNT, INC. vs. TOWN OF DARTMOUTH & others.

3 Mass. App. Ct. 706

February 6, 1975

The defendants appeal from a final decree of the Superior Court which declared that the board of health of the town of Dartmouth (board) was without power to promulgate two regulations designated as 23 and 24 and that those regulations are invalid. The defendants contend that the board was empowered by G. L. c. 111, Section 31, to make reasonable regulations in the area of concern to which regulations 23 and 24 were addressed. The plaintiff in its bill does not assert that the

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board does not have such a power but rather that the board acted unreasonably and arbitrarily in the exercise thereof. We agree that the board has such power. The defendants now concede that those regulations as promulgated are invalid. Therefore, in order to bring the decree into line with the scope of the relief sought by the plaintiff, the decree is to be modified to declare only that regulations 23 and 24 are invalid. As so modified, the decree is affirmed.

So ordered.