MISC 92120

September 12, 1979

Worcester, ss.

Sullivan, J.


The plaintiff, Colbert's Associates, Inc., owner of a freehold estate in possession in land in the Town of Boylston in the County of Worcester, complains, pursuant to the provisions of G.L. c. 240, §14A and c. 185, §l (j 1/2), of the action of the Planning Board of said Town in recommending an amendment to the zoning map to the town meeting held on June 26, 1978. The parties have agreed that the following is a proper statement of the relevant facts:

In conformity with M.G.L. Chapter 40A Section 5, the Town Planning Board gave proper legal notice of a hearing to be held by the Planning Board on June 21, 1978, to consider proposed changes to the Town's Zoning Bylaw.

The proposed zoning bylaw and zoning map to which the legal notice of the Planning Board referred were in the same form and of the same content as Exhibits "B" and "C" attached to the Petition, and were of the same form and of the same content of [sic] the relevant article on the warrant for a Special Meeting of the Town, to be and in fact held on June 26, 1978.

The relevant article on the above mentioned warrant included the language "or take any action relative thereto."

After the hearing held by the Planning Board on June 21, 1978, the Planning Board voted to change the required report and recommendation by the Planning Board by amending the Zoning Map in the following respects:

-Eliminating the Highway Business District on Route 140

-Cutting back the Commercial District on Route 70 to Diamond Hill Avenue

-Cutting the Highway Business District on Route 70 to 1000 feet from the Village Business District

The report and recommendation of the Planning Board at the Town Meeting on June 26, 1978, were identical in form and content to the texts and maps as amended by the Planning Board when it took a vote on June 21, 1978.

The Motion on the relevant article on the meeting warrant and the ensuing vote were identical in form and content as the texts and map as amended by vote of the Planning Board ....

It also was agreed that the following attachments to the Complaint might be introduced as exhibits: the zoning map as in effect prior to June, 1978 as Exhibit No. 1, the proposed zoning by-law as Exhibit No. 2, the proposed zoning map as Exhibit No. 3, the Planning Board report as Exhibit No. 4, and the zoning map as adopted as Exhibit No. 5.

The plaintiff suggests that the classification of its land as residential when previously it was zoned as commercial within two hundred feet of Route 70 is invalid, but the main thrust of its argument is that the action of the Planning Board in voting to amend the proposed zoning map in the three particulars set forth above was invalid without a new hearing. The plaintiff contends that after what its chief executive officer believed was the adoption of a final vote making no change in the district within which the plaintiff's land was located, the Planning Board then adopted three amendments to the zoning map.

The plaintiff points to G.L. c. 40A, §5 (a successor to §6 of said chapter) which reads as follows:

No zoning ordinance or by-law or amendment thereto shall be adopted until after the planning board in a city or town ... has held a public hearing thereon at which interested parties shall be given an oppor- tunity to be heard.

The plaintiff argues that the Planning Board cannot reframe the proposed zoning change during the hearing or a fortiori thereafter, and that any change of substance requires a new public hearing. The Supreme Judicial Court in construing the predecessor statute has consistently held that a new hearing is not required unless "fundamental" changes have been made. See Johnson v. Framingham, 354 Mass. 750 , 753 (1968); Doliner v. Town Clerk of Millis, 343 Mass. 10 , 13 (1961); Morgan v. Banas, 331 Mass. 694 , 697 (1954); Burlington v. Dunn, 318 Mass. 216 , 218-19 (1945). It is logical as the court said in Burlington that a hearing leads to revisions in the proposals under consideration. In the present case the members of the Planning Board "recessed" after the public hearing to consider the testimony and to vote on any changes; the public was allowed to stay. It was then that the vote to amend the map was adopted so far as three districts abutting the watershed were concerned.

At the ensuing town meeting attention principally was directed to a consideration of a proposed Industrial Park, and the change with which we are concerned was not the focal point of the meeting. The plaintiff's officer was allowed, however, to address the meeting twice in opposition to the change of which it now complains.

The crux of the decision with which we are faced is the determination as to whether the revision by the Planning Board of the lines of the zoning district with the result that all of the plaintiff's land is zoned residential is such a fundamental change as to require a new notice, publication and hearing before presentation to the town meeting. I hold that it is not and that the present case more closely resembles Doliner and Burlington, both supra than Fish v. Canton, 322 Mass. 219 (1948).

There also was testimony as to the character of the neighborhood and an attempt to show that the drawing of the district lines was vulnerable to attack. This essentially is a case of determination of a boundary line. Its placement is a matter of legislative discretion on the facts here for which the Court will not substitute its own judgment. Rosko v. Marlborough, 355 Mass. 51 , 53-54 (1968).

Judgment accordingly.