WILLIAM CONWAY, ET AL. v. TOWN OF LAKEVILLE.

This action was brought pursuant to G.L. c 240, § 14A, and G.L. c. 185, § l (j l/2), seeking to invalidate a certain zoning amendment because of alleged defects in its adoption. The plaintiffs have filed a motion for summary judgment, and in support thereof rely upon affidavits, including an affidavit of their counsel authenticating an appendix of documents relevant to the Town Meeting action which is at issue. The defendant Town has filed memoranda in opposition to the motion, as well as an affidavit of two owners of land within the area rezoned, both of whom signed a petition to initiate the zoning amendment. Counsel for each of the parties presented argument to the court, concerning the issues raised by the motion. The parties are in agreement that there are no disputed issues of material fact, and that judgment should enter as a matter of law, determining the validity or invalidity of the by-law.

After reviewing all matters entitled to consideration on a motion for summary judgment, I find that the following material facts are not in dispute and that, consequently, the case is appropriate for summary judgment as a matter of law. Community National Bank v. Dawes, 369 Mass. 550 , 553 (1976):

1. The plaintiffs individually are the owners of various parcels of land located in an area that was zoned as an industrial district ("the District") in the Town of Lakeville prior to the adoption of a zoning amendment (" Article 4") at a Special Town Meeting held on October 24, 1988.

2. On or about August 26, 1988, 25 registered voters of the Town of Lakeville submitted to the Board of Selectmen a petition stating, in material part:

We the undersigned registered voters in the Town of Lakeville, Massachusetts petition the Selectmen of said Town to include in the warrant at the Special Town Meeting the following amendment ...

There follows in the petition the text of the proposed article, proposing to rezone the area at issue from an industrial district to a "residence" district, and also a "protective By-Law for the Town of Lakeville, Massachusetts".

3. The Selectmen prepared and issued a warrant ("the warrant") for a Special Town Meeting to be held on October 24, 1988 and included therein Article 4 which read as follows:

To see if the Town will rezone the district, currently classified as an Industrial district as shown on a map in the custody of the Town Clerk/Town of Lakeville entitled "Map of Town of Lakeville, Massachusetts" and accompanying Protective By-law for the Town of Lakeville Massachusetts as initially adopted and subsequently amended by vote of the Town as follows:

Said land was zoned as Industrial via Article 43 at the April 21, 1964 Town meeting in Lakeville, Massachusetts; this land generally includes the area Northwest of School Street to the Town of Berkeley, Massachusetts and within which centrally lies the Northwest half (1/2) of Pierce Avenue; the total area of said district is approximately ± 1,080 acres; or act in relation thereto.

Submitted by Petition

4. Article 4 of the warrant, quoted above, omitted that portion of the Petition which indicated that the Industrial district was to be rezoned to a "residence" district.

5. There is no reference in the minutes of the meetings of the Board of Selectmen from August 26, 1988, the date of the submission of the petition, to October 3, 1988, of any motion or vote by that Board reflecting any independent discretionry action to include Article 4 in the warrant. The only reference to the Town Meeting appears in the minutes of September 19, 1988, upon which date the Board voted to schedule the Town Meeting for October 24th at 7:30 P.M., and to close the warrant for that meeting at 4:00 P.M. Monday, September 26th.

6. A legal advertisement appeared in the Middleboro Gazette on September 29th and October 6, 1988, advising that the Planning Board would hold a hearing "upon the petition of 25 registered voters to rezone the area in the vicinity of School Street/Pierce Avenue/and Malbone Street" on October 17, 1988 at 7:30 P.M.

7. On the appointed day, only one planning board member appeared for the scheduled hearing. In the absence of a quorum, no hearing was convened. The planning board member in attendance announced, at that time, that the hearing was cancelled and rescheduled for October 20, 1988. Notice of the hearing to be held on October 20th was not published in any newspaper.

8. The plaintiff Michael Wax appeared at the rescheduled planning board hearing. The plaintiff Lillian Conway was not in attendance on either the original or the rescheduled date of the hearing.

9. By the required two-thirds vote, Article 4 was adopted at the Special Town Meeting held on October 24, 1988, the vote being 282 in favor, 10 opposed. At the close of registration for the October 24, 1988 Special Town Meeting, there were 4,242 registered voters in the Town.

10. The planning board did not prepare or submit a written report with recommendation concerning the Town Meeting's consideration of Article 4 prior to the adoption thereof. The planning board, however, did give an oral report with recommendation prior to the vote adopting Article 4, at the October 24, 1988 Special Town Meeting.

The plaintiffs advance four arguments in support of their contention that the Town's attempt to amend the zoning by-law was ineffective. Each of the arguments is centered upon an alleged flaw in the procedure of adoption. A conclusion that any one of the four claims is well founded would warrant a declaration of the invalidity of the amendment. I will address the four arguments separately, in the order advanced by the plaintiffs.

I. THE VALIDITY OF THE INCLUSION OF ARTICLE 4 ON THE WARRANT

The plaintiffs claim that the proposal for Amendment should never have been placed before the Special Town Meeting, because the petition submitted to the Selectmen contained only 25 signatures. Chapter 39 of the General Laws, § 10, provides, in relevant part:

The selectmen shall insert in the warrant for . . . every special town meeting all subjects the insertion of which shall be requested of them in writing by 100 registered voters.

The Town concedes that the requirements of § 10 were not met, but argues that it is within the general authority of the Selectmen to place any matter on the Special Town Meeting warrant, at their discretion. The Town asserts that it exercised this authority, thus obviating reliance upon the citizen's petition provisions. In addition, the Town asserts that the signatures of two owners of land included within the area affected were sufficient to place the matter before the Special Town Meeting, in accordance with the provisions of G.L. c. 40A, § 5.

The plaintiffs must prevail on their claim, because the record before the Court unambiguously indicates that the basis for the inclusion of Article 4 in the warrant was that it was "submitted by petition." In addition to the evidence furnished by the warrant itself, the planning board advertisement concerning the Article identifies "the petition of 25 registered voters" as the source of the proposed zoning change. Nowhere in the minutes of the Board of Selectmen does there appear any evidence of indepenent action by that Board to adopt the citizen's proposal as its own for inclusion on the Warrant.

The deficiency above described cannot be remedied by virtue of the inclusion on the petition of the signatures of two owners of land in the area affected. In the first place, the petition simply does not, on its face, purport to be submitted by land owners. Moreover, although Chapter 40A, § 5 empowers a single land owner to initiate the zoning amendment process, the statute does not address the question of how such a proposal gets placed upon the warrant for a Special Town Meeting. The Legislature has clearly seen fit to require a specified minimum showing of voter support for the presentation of a warrant article to a Special Town Meeting. Because the petition in support of Article 4 did not contain the requisite amount of signatures, the measure should not have been placed upon the warrant. Accordingly, the Town Meeting action thereon was invalid, and must be annulled.

II. DEFICIENCIES IN THE TOWN MEETING WARRANT

The plaintiffs complain that the description of the action to be taken pursuant to Article 4 was insufficient as a matter of law. The warrant advised that Article 4 was a proposal to "rezone the district, currently classified as an Industrial district" but provided no indication of the classification (residential, business or otherwise) to which the district would be changed.

The legal standard by which the sufficiency of a warrant must be measured is outlined in G.L. c. 39, § 10 which provides that:

No action shall be valid unless the subject matter thereof is contained in the warrant.

The warrant must "indicate with substantial certainty the nature of business to be acted on" and "apprise voters of the nature of the matter with which the meeting is authorized to deal." Fish v. Canton, 322 Mass. 219 , 223 (1948). A notice in a warrant stating that a zoning proposal might be acted upon "in any way" has been held to be insufficient to authorize the reclassification of land by a Town Meeting vote. See Nelson v. Belmont, 274 Mass. 35 (1931). Article 4 in the warrant, as worded, would have theoreticaliy enabled the Special Town meeting to change the subject district from industrial to any other type of district, despite the fact that the planning board had not submitted a report with recommendation on any change other than what was contemplated by the petition.

It cannot be said that the description of Article 4 set forth with the requisite "substantial certainty" the nature of the proposal that was to be presented to the Town Meeting. The issue is not, as the Town suggests, whether the warrant was "misleading." The issue is (i) whether the warrant gave sufficient warning to all voters of the precise nature of the proposal to be debated and (ii) whether the warrant appropriately limited the scope of legislative action which could be taken at the meeting. It did not. Accordingly, the plaintiffs claim must be sustained upon this ground.

Although the rulings on the first two issues are dispositive of this case, for completeness' sake, I move on to a consideration of the other two issues raised by the plaintiffs.

III. THE CONTINUED DATE FOR THE PLANNING BOARD MEETING.

Plaintiffs contend that the hearing held by the planning board pursuant to its duty under G.L. c. 40A, § 5 was fatally defective, because notice of time and place of that hearing was not published in a newspaper as required by the statute. The Board did publish a notice that a hearing on this subject would be held on October 17, 1988. However, a quorum of Board members did not attend at that time. A single member of the Board rescheduled the hearing to October 20, 1988, announced that fact to those present for the scheduled hearing, and the matter went forward to consideration at that time. No newspaper notice of the continued date for the hearing was ever published.

The Town acknowledges that no hearing was held on the day for which appropriate newspaper notice was given. The Town asserts that the hearing was properly continued to a new date by the single member. The plaintiffs contend that, because no quorum was present on the date originally scheduled for the hearing, that a valid hearing could not have been held, and therefore, that if there was no valid hearing that there could not be a valid continuation of any such hearing. The plaintiffs also argue that less than a quorum of a board does not have the power to schedule or reschedule a hearing. This raises the issue of whether less than a quorum of a board has the power to validly continue a hearing which was properly scheduled and advertised originally.

There appears to be no statutory or case law on this issue. Roberts Rules of Order, however, are helpful in answering this question. Section 64 of Roberts Rules provide that "the only business that can be transacted in the absence of a quorum is to take measures to obtain a quorum, to fix the time to which to adjourn, and to adjourn, or to take a recess." This supports the notion that less than a quorum of a board has the inherent power to continue a meeting to a fixed date. Furthermore, in the absence of a controlling rule on point, it would be an exercise of form over substance to rule that a validly advertised hearing of a planning board could not be rescheduled to a date certain by less than a quorum of that board.

The fact that the planning board member present at the originally scheduled hearing announced that the hearing was canceled and that it was continued to a date certain, instead of announcing that the hearing was adjourned to a fixed date, is not material. The original hearing date was properly published and all those interested in attending presumably did so. Those present at the hearing were on actual notice of the fact that the hearing would be held on October 20, 1988. I therefore rule that the October 20, 1988 hearing was a valid continuation of the hearing scheduled for October 17, 1988.

IV. THE "REPORT" BY THE PLANNING BOARD.

The fourth issue upon which the plaintiffs rest their attack on Article 4 is the failure by the planning board to submit a written report to the Town Meeting prior to the time of the vote to adopt Article 4. In relevant part, G.L. c. 40A, § 5 provides:

No vote to adopt any such proposed ordinance or by-law or amendment thereto shall be taken until a reportwith recommendations by a Planning Board has been submitted to the Town Meeting or City Council, or 21 days after said hearing has elapsed throughout submission of such report. (Emphasis Supplied)

The plaintiffs assert that the use by the Legislature of the words "report with recommendations" and "submitted" is significant of an intent on the part of the Legislature to require that such a report be in writing. I do not agree.

The purpose behind the § 5 report provision is to provide the persons at the town meeting with knowledge of the position and advice of the planning board. See Doliner v. Town Clerk of Millis, 343 Mass. 10 , 13 (1961). An oral report by a member of the planning board can satisfy that purpose. If the Legislature had in fact intended the planning board to submit its report in writing, the Legislature could have used more precise language, such as incorporating the words "writing" or "filing" into the § 5 reporting requirement. While a better practice might be for planning boards to submit their reports in writing, thereby creating a clear record of compliance with § 5, the Legislature has not required that they do so.

I rule that the report required by § 5 as a prerequisite to the valid adoption of a zoning by-law amendment need not be in writing, and therefore, the oral report with recommendation submitted by the planning board at the Special Town Meeting satisfied the requirements of § 5.

In accordance with my rulings on the first two issues above, judgment shall be entered in favor of the plaintiffs declaring that the action of the Special Town Meeting of the Town of Lakeville concerning Article 4, effecting a reclassification from an Industrial district to a Residential district of certain land described therein was invalid, and of no force and effect whatsoever. Accordingly, the use by the plaintiffs of their land, within that district, shall be governed by the zoning bylaw, as it was in effect prior to said adoption, at least until such time as the zoning bylaw is amended by further remedial action of the Town Meeting.