JOSEPH DAVOLIO, JOSEPHINE WAGNER, ROBERT ABRAHAM, ALLEN BISHOP, JOHN SCIRPOLI, JOHN ZONA, JR., FLORENCE ZONA, AILI SCIRPOLI, LEONARD R. ERICKSON, ALDA SIVRET and MICHAEL J. MANNO vs. TOWN OF SHREWSBURY, BOARD OF SELECTMEN, ZONING BOARD OF APPEALS, TOWN MANAGER, PLANNING BOARD, SPAG'S SUPPLY, INC. and C.J. & S., INC.

Plaintiffs seek declaratory and injunctive relief under G.L. Chapters 240A, §14A; 185, §l (j 1/2); 231A, §1; 40, §53; 249, §5; and 43B, §14. They request declarations that zoning by-law amendments adopted by the Town of Shrewsbury (the "Town") violate the Massachusetts Constitution and General Laws; that the amendments were adopted by invalid procedure; and that votes to sell public land were invalidly adopted.

There was a trial on March 9, 10 and 11, 1992, taken before a stenographer, who has prepared a transcript. Nineteen exhibits (some with multiple parts and one of which was a video tape) were introduced into evidence and are incorporated in this Decision for purposes of any appeal. Exhibit 9 (Affidavit of Maurice DePalo) was introduced as a means of allowing into evidence its various exhibits. All the exhibits to Exhibit 9 are in evidence except Exhibit DD (the original of which was introduced as Exhibit 10).

The following witnesses testified: Robert Abraham (a neighbor); John H. Bowles (Chairman of the Town's Park and Recreation Commission); Robert A. Weisman (Vice Chairman of the Town's Planning Board); Richard D. Carney (Town Manager of the Town); Ronald Gauch (long-time member of the Town's Board of Selectmen); Joseph Davolio (a neighbor); Joan A. Waters (a neighbor); Josephine Wagner (owner of Ms. Water's house and also a resident in the Spag's Area), all for Plaintiffs; and Norman A. Abend (an experienced traffic engineer, employed by Spag's); Frederick E. Litchfield (the Town's Engineer Planner); Joseph Allen (Chairman of the Planning Board of the Town); and Maurice DePalo (Spag's Manager).

I viewed the area in question on March 11, 1992.

On all the evidence, I find and rule that the zoning by-law amendments are valid (on the assumption that they are read as continuing to require a finding under G. L. c. 40A, §6, first paragraph and its local counterpart); Plaintiffs have standing to attack the zoning votes; and that the land sale votes are valid. More particularly, I find and rule:

1. Plaintiffs are all residents of the Town.

2. The Town is a municipal corporation duly organized and existing under the laws of the Commonwealth, located in the County of Worcester. The individual Defendants are duly authorized and act as the Board of Selectmen, Planning Board, Zoning Board of Appeals and Town Manager of the Town.

3. Defendants Spag's Supply, Inc. ("Spag's") and C.J. & S., Inc. ("C.J. & S.") are Massachusetts corporations both with principal places of business at 5 Beverly Road, Shrewsbury.

4. On December 9, 1991, at a Special Town Meeting the Town passed eight votes which Plaintiffs claim relate to this action. Ishall refer to the votes by their Article numbers in the Warrant. Article 5 authorizes the Selectmen to sell approximately 1.225 acres of land at the corner of Spag's Alley and Harrington Avenue to C.J. & S. for not less than $270,000. Article 6 authorizes the Selectmen to sell to C.J. & S. for $1.00 a .071 acre parcel at the corner of Spag's Alley and Harrington Avenue and authorizes a discontinuance of a portion of Harrington Avenue for the purpose. Each of Articles 5 and 6 provides that the area described is to be combined with the other area for purposes of sale. The land involved in Articles 5 and 6 is the "Ball Field".

5. Article 7 is an acceptance by the Town of $50,000.00 from Spag's for the development and equipping of playfields. Article 8 authorizes the Selectmen to purchase for playground purposes 19.7 acres of land (the "Maple Avenue Site") at the north side of Maple Avenue in the Town and provides that for that purpose, "the sum of $720,000 shall be appropriated in the following manner: $270,000 be transferred from the sale of land under Article 5, 450,000 by accepting a donation of C.J. & S. Inc."

6. Article 9 rezones from a "Residential B-2" district to a "Commercial-Business" district a parcel of land (the "Hillside Avenue Parcel") abutting the existing Commercial-Business District. Article 10 creates a Town-wide exemption from dimensional requirements for certain land owned by the Town.

7. Article 11 amends Section V ("New Construction and New Uses") of the Town's Zoning By-Law (the "By-Law") by adding the following paragraph:

(G.) To permit in a Commercial-Business district, as of right, the erection of an addition to a building upon an adjoining lot which was acquired after October 1, 1991, and is owned by the same party as the abutting lot if the building area of such addition (if the addition was standing alone as a separate building) would otherwise meet the dimensional requirements of Table II except for side and/or rear yard requirements.

8. Article 12 amends Section VII, Table 2, (dimensional requirements) of the By-Law to provide a new footnote as follows:

(9) On a lot in the Commercial-Business district created by joining two (2) abutting lots and which resulting lot abuts a public way on three (3) or more sides, the front yard requirement of Table II of Section VII will apply to only one yard of the new lot abutting a public way, which yard shall be selected by the lot owner, and the other yards of the new lot which abut a public way shall be a minimum of 50 feet; except that no structure may be erected in any front yard abutting Route 9 or Route 20 unless the minimum 75 feet front yard requirement of the bylaw is satisfied.

The Attorney General approved the Article 9, 10, 11 and 12 votes on March 5, 1992.

9. One of Plaintiffs' claims is that the votes are defective under G. L. c. 43B, the Home Rule Procedures Act. On January 17, 1992, I dismissed that claim. Various individuals comprising a "Committee to Preserve Open Space" were originally included as Plaintiffs for purposes of the Chapter 43B claim. With the dismissal of the Chapter 43B claim, the sole Plaintiffs were Mr. Davolio and Ms. Wagner. However, Plaintiffs moved that the others be returned to the case, to pursue ten-taxpayer claims as to the proposed land sale, and I allowed the motion. At the request of counsel, I sought appointment to the Superior Court to remove any question as to jurisdiction to hear the matters relating to the land sale, and I was appointed April 28, 1992. I allowed Defendants' motion to dismiss as to the Zoning Board of Appeals and the Planning Board. They are not proper parties to any of the relief sought by Plaintiffs.

10. The Ball Field is owned by the Town. The Hillside Avenue Parcel is owned by C. J. & S. The Maple Avenue Site is owned by the Worcester Foundation for Experimental Biology. The Town has an option to purchase the Maple Avenue Site.

11. The Hillside Avenue Parcel is now zoned "Commercial-Business", by virtue of Article 9, which rezoned it from a "Residential B-2" District. The Ball Field is in a "Commercial-Business" district. The Hillside Avenue Parcel is to be used by Spag's for parking accessory to Spag's' operations. The Hillside Avenue Parcel has been outlined in red on Exhibit 1 and includes lots 23 through 28, 30, 31 and 32 and 45 on that Exhibit. The Ball Field is the northerly part of "Lot 97 (Ward School Play Ground)" as shown on Exhibit 1. The allocation of that lot between the firehouse and the Ball Field is shown on the aerial photograph, Exhibit 2.

12. Spag's' operations sprawl over a large area (the "Spag's Area") on the northerly side of Route 9, betwen Harrington and Lakeview Avenues and bounded northerly by Short Street and Elmo and Muzzy Avenues. Spag's directly, or through C.J. &. S. (which holds title for Spag's), owns much of, but by no means all, the land in the Spag's Area. Spag's Area has some eleven or twelve blocks, crisscrossed by several private and public ways, only some of which are paved and some of which are in part only paper streets.

13. From my view of Spag's Area and its surroundings, I find that Route 9 is a heavily travelled major highway in the neighborhood of Spag's Area, with numerous businesses on either side. Approaching Spag's Area from the east, Harrington Avenue is a major feeder street leading northerly off Route 9. Spag's Alley is the first street leading left off Harrington Avenue, the intersection being about 500' northerly of Route 9. One encounters first a car sales business at the corner, then the Town fire station and, at the intersection of Spag's Alley, the Ball Field. The Ball Field consists of a baseball diamond with an extremely shallow outfield and a basketball hoop. There are also two or three benches and limited landscaping. The whole Ball Field is a rough square of about 200' on each side.

14. The Hillside Avenue Parcel is now covered mostly with small trees. The area to the north of it, in the Residence B-2 District, has a scattering of small residential structures and trailers, but is more unoccupied than occupied, so that it is difficult to call it a neighborhood. The area to the east of the Hillside Avenue Parcel (to the north of Muzzy Avenue), in contrast, is a neighborhood of modest homes.

15. Spag's Area as a whole is a city planner's nightmare. Spag's conducts discount retail operations from a multitude of buildings. Spag's gradually bought properties around its core buildings and simply converted the buildings to its sales activities. There has been a gradual shift of use of the Spag's Area over the years, from residential to business. Large parts of the Spag's Area are covered by parking lots, servicing the heavy traffic drawn by Spag's. Spag's also uses these lots to park -- apparently on a long term basis -- numerous trailers, most of which will remain in place even after the proposed additions.

16. The core of Spag's activities is in the block formed by Route 9 and Baker, Muzzy and Harrington Avenues. There is a long rectangular building along Baker Avenue, running back from Route 9. Spag's expansion plans (which give rise to the votes attacked in this case), involve the construction of an addition to the Baker Avenue building, to be used as a truck receiving facility, and the establishment of a parking lot on the Hillside Avenue Parcel.

17. Plaintiff Abraham lives at the corner of Muzzy and Harrington Avenues, just outside Spag's Area, in the Residence B-2 zoning District approimately 550' from the Ball Field. Plaintiff Wagner owns a residence within Spag's Area, on Veranda Street (within the Commercial Business zoning District) about 450' from the Ball Field; Mrs.Wagner's daughter, witness Waters, lives in the house. Plaintiff Davolio lives on Harrington Avenue, across from the end of Muzzy Avenue, slightly closer to the Ball Field than Mr. Abraham. The residences of the other Plaintiffs were not revealed at trial -- presumably, they are more remote from Spag's Area.

18. Plaintiff Abraham and other neighbors use the Ball Field occasionally, including Tee Ball games. The Town has no organized activities there. The Ball Field is very limited in size and use of it is greatly hampered by the absence of any parking.

19. By letters dated December 2, 1991; December 2, 1991 and November 25, 1991, respectively, the Park & Cemetery Commission, the Fire Department and the School Committee agreed to the sale of the Ball Field (Exhibits Q, R and S to Exhibit 9). Earlier, in October, the Parks and Recreation Department had stated that it was opposed to the sale of the Ball Field. On reconsideration of the availability of alternative sites, one of which would be at the Maple Avenue Parcel, the Department changed its position to that expressed in the letter. I attach no significance to this change in position.

20. The use of the Hillside Avenue Parcel for Spag's parking, in the eyes of the Town's Planning Board, would be a considerable improvement of the parking situation in Spag's Area, and I agree. Parking is now a problem in the Spag's Area; cars park on lawns and traffic backs up with cars looking for spaces close to Spag's buildings. After concern about parking was expressed at initial public meetings, Spag's amended its proposal so as to add parking, the Hillside Avenue Parcel. There is to be a buffer zone of trees and other vegetation around the parking lot on the Hillside Avenue Parcel.

21. Spag's has delivered into escrow (the terms of which did not appear) a deed to the Town of a small portion of the Hillside Avenue Parcel, including a set of restrictions (Exhibit 10). The restrictions provide that no building (other than a parking attendant booth) may be erected on the Hillside Avenue Parcel, the Hillside Avenue Parcel shall be used only for parking of automobiles and small trucks, and no overnight parking is to be allowed.

22. In addition to the additional parking, there will be changes in the loading, trucking and traffic patterns which will reduce congestion on the streets, particularly Baker Avenue. Truck deliveries on Baker Avenue will be reduced by about 50%. The changes include additional traffic lanes and new signals. The proposed changes will create safer traffic in Spag's Area.

23. The various traffic, parking and related changes are described in a Traffic Impact Analysis by Abend Associates (Exhibit 14). The Analysis concludes that the changes will be beneficial from traffic, parking and safety standpoints and I accept those conclusions.

24. The Town understands that it will have to comply with the Uniform Procurement Act in its sale of the Ball Field.

25. Articles 9, 10, 11 and 12 were initially proposed by Spag's. It is not clear who drafted the proposed Articles.

26. The Town took the Ball Field (together with the land on which the Fire Station now stands) by eminent domain by a taking recorded at Worcester Deeds at Book 2807, Page 238 on February 18, 1941 (Exhibit 17). That was pursuant to a Town Meeting vote of February 10, 1941 (Exhibit 16). Both the Taking and the Town Meeting vote state that the purposes of the taking were "for school, playground and other related municipal purposes".

27. At trial, Plaintiffs agreed that they have no quarrel with Article 10 (which the parties stipulate relates only to Town-owned land). Plaintiffs contend that the other amendments to the By-Law (Articles 9, 11 and 12) violate the Massachusetts Constitution and the General Laws, in various specifics. They first allege that Articles 9, 11 and 12 are contract zoning, which Plaintiffs identify as having been adopted solely for the economic benefit of a private party (Spag's and C.J. & S.) in exchange for money -- specifically money to buy other land and playground equipment and to make improvements to a traffic signal. Plaintiffs cite Sylvania Electric Products, Inc. v. Newton, 344 Mass. 428 (1962).

28. Plaintiffs' witnesses state that at early public hearings Spag's representatives stated that the arrangements would have to include exemption from site plan review and special permits, that Article 5 through 11 were a package and that without the rezoning there would be no money to purchase the Maple Avenue Site. They further testified that at the Town Meeting the Town's representatives stated that the proposals were intertwined.

29. Mr. DePalo admitted that he had submitted a written proposal to the Selectmen dated September 9, 1991 (not in evidence) in which Spag's stated that the zone changes were necessary for Spag's addition and that the offer to pay $720,000 was subject to conditions, including the conveyance of the Ball Field, the use of the $720,000 to purchase the Maple Avenue Site (of which $500,000 would be characterized as a gift), and issuance to Spag's of all necessary permits to build the addition and that the By-Law would be amended to allow the project to proceed without site plan review, special permits or variances.

30. Mr. DePalo testified -- and counsel suggests in his brief -- that Articles 11 and 12 will permit Spag's to proceed with its addition as planned and are therefore Spag's hope, but that if they are invalidated, Spag's nonetheless intends to purchase the Ball Field, as long as Spag's can obtain a building permit to construct a free-standing commercial building on the Ball Field as a matter of right.

31. Spag's reminds us that the Ball Field is -- and has all along been -- zoned Commercial-Business. Spag's suggests that it could build a free-standing structure as a matter of right, and Mr. Allen (Chairman of the Planning Board) agreed. It is not clear what the impact of dimensional requirements would be on such a structure.

32. On the isolated question of the imposition of the restrictions on the Hillside Avenue Parcel, the arrangements are usual and easily within Sylvania, which, as is sometimes forgotten, upheld Newton's rezoning. Plaintiffs' attack is broader, however. Plaintiffs essentially allege that Spag's bought the zoning amendments.

33. I conclude Spag's originally approached the Town on the basis that all the proposals were tied together -- and even further -- that no special permits or site plan review would be required. When the Town objected to the no-special-permit/site plan-review portion of the package Spag's backed off on that.

34. Spag's says there is not, and never was, any binding contract between the Town and Spag's; if the zoning amendments are upheld, Spag's can change its mind and not purchase the Ball Field. I agree that no contract exists. On the other hand, if circumstances have not changed, why should Spag's not go forward, if the zoning amendments hold up? As a practical matter, the Town could be reasonably comfortable that matters will unfold as a package.

35. Spag's also argues that it is prepared to go ahead even if Articles 9, 11 and 12 are stricken; in effect, that it will embrace the less desirable alternative if it has to. The implication is that the Ball Field is worth $720,000 to it with or without zoning relief and that, therefore, it wasn't buying zoning relief. Whether Spag's would go ahead as suggested is not determinative, so I have not delved into that.

36. Spag's also says it wlll obtain the Ball Field only if it is the successful bidder in the Uniform Procurement Act process. Its point is that there is no direct link between the zoning amendments and its acquisition of the land and that it is not to be the beneficiary of a rigged bidding process (a straw man, since Plaintiffs never suggested that). I am not persuaded of the relevance of this argument; in any event, the chances are very good that Spag's (as the abutter) can count on being the high bidder.

37. Spag's argues that contract zoning applies only where there is a rezoning and Articles 11 and 12 do not involve a rezoning. That is a literally correct reading of Sylvania but it is too narrow here.

38. In addition to the various points raised by Spag's (none of which, as I state above, do I find determinative, but which have some weight in the balance), there is no showing that the Town required anything of Spag's; and there is no showing as to the value of the Ball Field, from which it might be inferred that more than a fair price was involved.

39. A zoning by-law is presumed valid and one who challenges it not only has the usual burden of persuasion but must establish invalidity beyond a reasonable doubt. Rosko v. Marlborough, 355 Mass. 51 (1968). Subject to my conclusions below as to G. L. c. 40A, §6, I conclude that Plaintiffs have not met that burden.

40. Plaintiffs cast the question in terms of whether zoning relief has been adopted solely for the economic benefit of a private party in exchange for money. I have no doubt that Spag's derives an economic benefit from these Articles but it is an entirely different matter to say that is the Articles' sole benefit. Spag's' expansion plans result in a substantial improvement of an often chaotic traffic and parking situation, which has heretofore frustrated the Town's planning officials. Plaintiffs argue that the improvements found by Mr. Abend could be accomplished by Spag's without Articles 11 and 12 but I am by no means clear that is so, and certainly the rezoning of the Hillside Avenue Parcel was necessary.

41. Looking at Articles 11 and 12 separately, Article 11 allows expansion onto an adjoining lot -- acquired after October 1, 1991 -- without compliance with side and rear yard requirements (all other dimensional requirements apply). As explained by the Chairman of the Planning Board, Article 11 was intended to cure a provision of the existing By-Law (Section IV.B.2, page 14 of Exhibit 7) which (absent a variance) limited expansion of a non­conforming use to an owner's original (1967) lot -- i.e., no expansion to a later-acquired lot and the Planning Board recommended the amendment to facilitate the expansion of business in the Commercial-Business district, where there are many undersized lots. Mr. Allen was not asked the reason for the October 1, 1991 date and did not give one.

42. Mr. Allen testified that Spag's' building on Baker Avenue is dimensionally non-conforming, so that, for Spag's to expand onto the Ball Field it would have needed a variance before the passage of Article 11.

43. Mr. Allen further testified that Article 11 applied not only to Spag's. There are a significant number of undersized lots in the Town's Commercial-Business district.

44. Mr. Allen stated (and I agree) that the effect of Article 12 is that, for a lot in a Commercial-Business district combining two lots and which combined lot faces on three or more public ways -- front yard setbacks need apply only to one of the street yards, the other street yards to be 50'. Mr. Allen stated that the reason for the Article was that theretofore the front yard requirement (75') would apply on all the street yards (which the Planning Board viewed as unduly onerous); with the amendment, all but one street yard can be 50', increasing design flexibility. Mr. Allen stated there are other properties in the Town which could benefit from Article 12. He also explained that Routes 9 and 20 were dealt with specially because the Town wished to protect against possible state highway widenings and that the requirement of combined lots was a crude way of limiting Article 12 to large lots.

45. Mr. Litchfield, the Town's Engineer Planner, testified that he had identified at the Planning Board's request nine other parcels which could benefit f rom Article 12. No similar list was attempted for Article 11 because it could apply in many instances. The minutes of the Novmber 25, 1991 meeting of the Planning Board, to which Mr. Litchfield reported, indicate that the Board recommended approval of the various zoning Articles "on their own merits without regard to the acquisition of the land along Maple Avenue" and that the Board discussed the other sites which could be affected and determined that most were along Routes 9 and 20.

46. Plaintiffs argue that Article 9, the rezoning of the Hillside Avenue Parcel, is spot zoning. I conclude to the contrary. In light of the changes in Spag's Area to commercial use over the years, the lack of residences in the immediate vicinity of the Hillside Avenue Parcel, and the clear benefit of the additional parking to the general area which includes Spag's Area, I conclude that Article 9, while it benefits Spag's, also has a reasonable relationship to the public welfare, safety and the purposes of G. L. c. 40A.

48. Plaintiffs next allege that Article 11 is defective in that it (a) violates the requirement of district uniformity found in G. L. c. 40A, §4, (b) allows the alteration of a non-conforming structure without the finding required by G. L. c. 40A, §6 ("Section 6 Finding") and (c) grants a disguised variance in defiance of the requirements of G. L. c. 40A, §10. They also argue that Article 12 is arbitrary and violates the requirement of district uniformity and that Articles 11 and 12 constitute spot zoning.

49. I will deal later with the Section 6 Finding argument. The thrust of Plaintiffs' arguments on the other Article 11 and 12 points is that Articles 11 and 12 were desired by Spag's and proposed by it as a means of obviating zoning relief otherwise necessary for the addition as proposed by Spag's; further, that to avoid challenge, the relief was dressed up as amendments of general applicability, bolstered by Mr. Litchfield's report -- a "fig leaf of rationalization", to quote National Amusements, Inc. v. City of Boston 29 Mass. App. Ct. 305 (1990).

50. In the absence of much more specific evidence than that produced, I decline to approach the problem cast in terms of conspiracy. In presuming validity, the case law presumes that the Town Meeting acted with acceptable motivation.

51. What can be said on an objective basis, however? Plaintiffs rely on SCIT v. Planning Board of Braintree, 19 Mass. App. Ct. 101 (1984) on the question of district uniformity. I conclude that is mistaken. The defect raised in SCIT was the ability of the Planning Board there to pick and choose among uses otherwise allowed as of right. Here there is no board involved.

52. Attacking Articles 11 and 12 as spot zoning does not add substantially to the discussion. Spot zoning is usually considered in terms of a rezoning, which Articles 11 and 12 are not. In any event, a spot zoning argument would eventually come down to the same question as is involved in Plaintiffs' other approaches whether Articles 11 and 12 have a reasonable relationship to the purposes of Chapter 40A -- or whether they are arbitrary, unreasonable or substantially unrelated to the public health, safety, convenience, morals or welfare, see Canteen Corporation v. Pittsfield, 4 Mass. App. Ct. 289 (1976).

53. I conclude that Article 12 is valid. It is not unusual to provide relief from front yard setback requirements on all street frontages. Plaintiffs make much of the fact that under Article 12 an owner fronting on two streets must comply as to both, whereas in the much rarer case of three or more, relief is granted. However, Shrewsbury is entitled to its own answer to the question of how many streets are too many.

54. I have more difficulty with Article 11. When combined with Section IV.B. of the By-Law, Article 11 on its face produces this result: in all districts (except Neighborhood Business and Office Research districts where the By-Law apparently allows no expansion), expansion of a non-conforming structure is allowed, as long as there is a Section 6 Finding by the Board of Appeal and as long as the expansion is limited to a lot which existed in 1967 (and there are percentage limitations in Rural, Residential and Apartment districts as well); if expansion is to pass outside the 1967 lot, a variance is necessary. Now comes Article 11, which says that if (and presumably only if) you expand onto an adjoining lot, you can do so "as of right", and with side and rear yard requirements waived, as long as your lot is in a Commercial-Business District and as long as you acquired the adjoining lot after October 1, 1991.

55. Article 11 is certainly a cumbersome way to deal with Section IV.B.'s provision concerning adjoining lots. Why not simply make an exception for lots in a Commercial-Business District? Mr. Allen suggested Article 11 had implications beyond Section IV.B., but I do not see the need to discuss them.

56. Plaintiffs point to Cross v. Planning Board of Chelmsford, 345 Mass. 618 (1963) and suggest that Article 11 is just as arbitrary as the by-law amendment held invalid there. I cannot find any zoning rationale for Article 11's reference to the October 1, 1991 acquisition date (like the 625' test in Cross). However, if Article 11 ought to apply to pre-October 1, 1991 acquisitions as well as post, should that invalidate it as applied to post October 1991 acquisitions? If Article 11 is valid generally -- as I conclude it is -- must it be poisoned because it is not inclusive enough? My answer to these questions is, no.

57. Among other things, we do not have a plaintiff who (as in Cross) is disadvantaged by the arguably unreasonable element in the by-law. I am free to focus on the half-full part of the glass.

58. Plaintiffs assert that Article 11 allows expansion of a non-confarming structure onto an adjoining lot without a Section 6 Finding, in contravention of Section 6 as recently interpreted by the Appeals Court in McLaughlin v. City of Brockton, 32 Mass. App. Ct. 930 (1992). No, say Defendants -- McLaughlin deals with expansion of use, not of structure. Irrelevant, say Plaintiffs, citing Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 (1987).

59. If Article 11 dispensed with a Section 6 Finding, I would agree with Plaintiffs. Article 11 certainly can be read as Plaintiffs suggest -- "as of right" can be read giving a free ride all the way -- no variance needed to go onto the adjoining lot and no Section 6 Finding and no similar finding by the Shrewsbury Board of Appeals under Section. IV.B.4 of the By-Law. However, to "harmonize superficially discordant provisions" (Lee v. Board of Appeals of Harwich, 11 Mass. App. Ct. 148 , 154 (1981)) and to avoid conflict with Chapter 40A, I interpret Article 11 as limited to providing an exception to Section IV.B.2 of the By-Law, leaving intact the rest of Section IV. As so interpreted, I conclude Article 11 is valid.

60. Defendants, by Supplemental Trial Memorandum filed after trial, suggest that a Decision of the Board of Appeal dated April 28, 1992 supplies the requisite Section 6 Finding. That Decision is not in evidence and was not argued by counsel and thus I have nothing further to say about it.

61. Plaintiffs argue that the zoning amendments were initiated by Spag's and C.J. & S., not by persons or bodies authorized to initiate amendments under G. L. c. 40A, §5. Section 5 allows initiation by "an individual owning land to be affected by change or adoption". C.J. & S. clearly qualifies as to Article 9, the Hillside Avenue Parcel. By stipulation Article 10 is not of concern. Spag's and C.J. & S. are affected by Article 11 and apparently also by Article 12, although its relationship to the Spag's proposal was not made clear. In any event, on the facts here, I conclude strict compliance with Section 5 in this particular is not mandatory, Hallenborg v. Town of Billerica, 360 Mass. 513 (1971).

62. Plaintiffs also attack the votes to sell the Ball Field on various grounds. They argue that: G.L. c. 40, §15 was not complied with, firstly in that there was no considered determination that the Ball Field was not needed for a public purpose. Plaintiffs' arguments here come down to the assertion that the Parks and Recreation and Cemetery Commission had its arm twisted by Town officials eager for the benefits to flow from Spag's expansion, that there were no real alternative playground sites available and that the Ball Field is in active use. I have stated above (19) that I discount the first assertion; as to the other two, nothing presented by Plaintiffs leads me to see the necessity of second-guessing the Town's officers in the normal course of their duties.

63. Plaintiffs next argue that G. L. c.40, §15 requires a two-thirds vote of "the inhabitants" of the Town and that votes (186 to 22 on Article 5 and 201 to 14 on Article 6) of a Town Meeting will not suffice. Plaintiffs forward no authority for their position (other than pointing, by contrast, to G. L. c. 40, §15A's reference to a vote at a "town meeting"). Plaintiffs' position is flatly contradicted by the last sentence of §17 of Chapter 553 of the Acts of 1953, the enabling legislation for Shrewsbury's Limited Town Meeting form of government:

Action in conformity with all provisions of law now or hereafter applicable to the transaction of town affairs in town meetings, shall, when taken by any representative town meeting in accordance with the provisions of this act, have the same force and effect as if such action had been taken in town meeting open to all the voters of the town as organized and conducted before the establishment in said town of representative town meeting government.

I conclude the December 9, 1991 votes of Shrewsbury's representative town meeting were votes of the "inhabitants" of the Town.

64. Finally, Plaintiffs allege that the method by which the Town established the minimum selling price for the Ball Field violates the Uniform Procurement Act, G. L. c. 30B ("UPA"). Defendants respond that the Town recognizes that it will have to comply with the UPA and is prepared to do so. I accept that response and find that concerns about the UPA are premature.

65. Plaintiffs state that the Ball Field is park land. I find to the contrary. The Ball Field was taken for "school, playground and other related municipal purposes". Those words do not add up to a park and as it exists on the ground the Ball Field is a playground, not a park. The distinction between the two is recognized in G. L. c. 45, §14.

66. Defendants have attacked the standing of Plaintiffs to challenge the zoning Articles under G. L. c. 240, §14A. I find that Plaintiffs Abraham, Wagner and Davolio, who reside in or own properties close to the Spag's complex, have standing.

67. Defendants also contend that Plaintiffs have no standing to bring a ten taxpayer action under G. L. c. 40, §53. There was no showing at trial that Plaintiffs were taxable inhabitants (it is admitted they are inhabitants). Further, the only Article involving the incurring of an obligation by the Town is Article 8, which Plaintiffs do not contest, other than its being linked to other Articles which they do dispute. However, the issue of standing as to the non-zoning Articles (including Plaintiffs' suggestion first raised in post-trial brief that mandamus lies) has not been developed sufficiently and I decline to pass on it, finding as I do that the votes are valid substantively.

68. To summarize, all the Articles attacked by Plaintiff are valid; Article 11, as to non-conforming uses, is restricted in application to allowing expansion to an adjoining lot as of right and does not dispense with the necessity of a Section 6 Finding.

Judgment accordingly.