FELICIA R. PENN and PHILLIP R. DOHERTY, v. TOWN OF BARNSTABLE, HYANNIS HARBOR TOURS, INC., and MARINA ATSALIS.

The Zoning Act governs how municipalities may amend, add to, or repeal their zoning ordinances and bylaws. In 2013, the Town of Barnstable began an effort to reform its regulation of commercial parking in and around Hyannis Harbor, and chose to do so by amending the Town's zoning ordinance. The amendment called for creation of the Hyannis Parking Overlay District (the "HPOD"). Plaintiffs Felicia Penn and Phillip Doherty own single-family residential lots within the proposed district. They claim that the Town failed to follow the procedures found in the Act, G.L. c. 40A, § 5, when it adopted the HPOD amendment. This Court agrees.

The case comes before the Court on the parties' cross-motions for summary judgment. Here are the undisputed facts: in 2013, Town planning staff conducted a study of commercial parking lots between Main Street in Barnstable and Hyannis Harbor, and their effects upon nearby residential areas. The study found that all of the parking lots within the study area had operating licenses from the Town, but not all of the lots had obtained proper zoning approvals. The study also found that some lots that had received zoning approval were licensed to operate more parking spaces than their zoning approvals allowed.

Following staff's analysis, in December 2015, the Parking Committee of the Town's legislative body, its Town Council, proposed an amendment to the Town's zoning ordinance. The Council placed the proposal on its legislative docket and called it Item No. 2016-54. The amendment proposed to create the HPOD. The amendment provided that within the HPOD, all of the requirements of the two underlying zoning districts within the HPOD – a Residential B District and the Harbor District – would remain in force, except for those that the HPOD's new regulations specifically altered or superseded. The latter regulations proposed to authorize, in turn, the operation of commercial parking lots, as of right, on any parcel that (1) was legally nonconforming under the zoning ordinance, or (2) had a Town open-air parking lot operating license as of May 1, 2014.

By unanimous vote, the Council referred Item No. 2016-54 to the Town's Planning Board. At a public hearing in February 2016, the Planning Board voted not to recommend adoption of Item No. 2016-54. On March 24, 2016, the Council took its own vote on the proposal. Seven council members voted for it, but four voted against it. Item No. 2016-54 thus failed to pass for lack of two-thirds support. See c. 40A, § 5.

Things did not end there. Two weeks later, the Council voted unanimously to "reconsider" Item No. 2016-54. The Council advertised that it would hear Item No. 2016-54 at a meeting scheduled for May 5, 2016. On May 5, 2016, the Council voted to continue discussion of the item to a Council meeting scheduled for June 16, 2016. At that meeting, the Council took three actions. First, the Council voted unanimously to "withdraw" Item No. 2016-54, with the understanding that it would be "changed." The Council then docketed a new zoning amendment, which it called Item No. 2016-166. Finally, the Council voted unanimously to refer Item No. 2016-166 to the Planning Board, and to schedule a joint public hearing with the Board on July 21, 2016. The record's silent as to whether the Board had any input into the scheduling of the joint hearing.

Item No. 2016-166 was identical to Item No. 2016-54 but for three things. First, Item No. 2016-166 changed Item No. 2016-54's definition of an allowed "Commercial Surface Parking Lot" in proposed § 240-24.1.10.3 of the ordinance. Item No. 2016-166 added this sentence to that definition: "Commercial surface parking lots shall not include structures, fully or partially enclosed, that accommodate vehicle parking spaces." This excluded parking "structures" from the benefits of the HPOD. Second, Item No. 2016-166 changed how proposed §§ 240-24.1.10.5(B)(1)(b) and (c) of the ordinance would compute "Commercial Surface Parking Spaces." Item No. 2016-166 proposed that "the number of Commercial Surface Parking Spaces shall not exceed the number determined as of the effective date of this ordinance, even if any other principal use is subsequently discontinued." Third, Item No. 2016-166 added a requirement to proposed § 240-24.1.10.5(B)(3)(a) of the ordinance, 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, known as the 'record parking plan.'" This requirement also was proposed to apply to any change to a parking lot's boundaries or its internal configuration.

The Planning Board had held no hearings on Item No. 2016-54, or any other Council HPOD proposal, between its February 22, 2016 hearing (where it had rejected Item No. 2016-54) and the Council's June 16 meeting. On July 21, 2016, the Planning Board and the Council convened a joint hearing and accepted public testimony. After all testimony concluded, the Planning Board closed its part of the hearing, and voted three to two to recommend approval of Item No. 2016-166. Following that vote, the Council took three votes of its own. The Council first voted 11-2 that Item No. 2016-166 "is not a proposed zoning ordinance which has been previously acted upon unfavorably by the Town Council and is not the same ordinance which was unfavorably acted upon by the Town Council as Item No. 2016-54." The Council next voted 10-3 that Item No. 2016-166 "contains specific, substantive and material changes that distinguish it from the content of Item No. 2016-54." Finally, the Council voted 11-2 to adopt Item No. 2016-166.

Plaintiffs Penn and Doherty filed this suit in January 2017 under G.L. c. 231A, § 1, and G.L. c. 240, § 14A. They sought in Count I of their Amended Complaint a declaration that the Town violated G.L. c. 40A, § 5 when it created the HPOD. Their principal argument is that once the Town Council rejected Item No. 2016-54 on March 24, 2016, it was barred from considering it or any similar item for two years. In Count II of their Amended Complaint, Penn and Doherty sought a declaration that the adoption of the HPOD ordinance was not a lawful exercise of municipal zoning power. They argue that the ordinance constitutes "spot zoning" because it applies to select lots, and if implemented, would disturb the uniformity of the Residential B and Harbor Districts.

Chapter 40A, § 5 lists the steps a municipality must take before it may amend its zoning ordinance. Four of § 5's provisions bear on this case:

No zoning ordinance . . . 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.

. . .

No vote to adopt any such . . . amendment . . . shall be taken until a report with recommendations by a planning board has been submitted to the . . . city council, or twenty-one days after said hearing has elapsed without submission of such report. After such notice, hearing and report, or after twenty-one days shall have elapsed after such hearing without submission of such report, a city council . . . may adopt, reject, or amend and adopt any such proposed ordinance or by-law.

. . .

No zoning ordinance . . . or amendment thereto shall be adopted or changed except by a two-thirds vote of all the members of the town council. . . .

. . .

No proposed zoning ordinance or by-law which has been unfavorably acted upon by a city council . . . shall be considered by the city council . . . within two years after the date of such unfavorable action unless the adoption of such proposed ordinance . . . is recommended in the final report of the planning board.

While municipalities enjoy broad powers to adopt or amend zoning ordinances, see Sturges v. Town of Chilmark, 380 Mass. 246 , 253 (1980), the Legislature insists that municipalities comply strictly with § 5 when they do so. See Town of Canton v. Bruno, 361 Mass. 598 , 603 (1972) (interpreting a prior version of the Zoning Act); Cherkes v. Town of Westport, 393 Mass. 9 , 11 (1984). Penn and Doherty point to one chief mistake in the Town's adoption of Item No. 2016-166: it came "within two years" of the Council's rejection of Item No. 2016-54, an item that hadn't been "recommended in the final report of the planning board" on Item No. 2016-54.

Whether § 5 limited the Council's ability to approve Item No. 2016-166 turns on two questions: (a) whether the Council "considered" Item No. 2016-54 after rejecting it on March 24, 2016; and (b) whether Item No. 2016-166 is materially different from the "unfavorably acted upon" Item No. 2016-54. Chapter 40A does not define "consider," and none of the parties has suggested what it means. Black's Law Dictionary defines "consider" as "to think about, or to ponder or study and to examine carefully." There are several points where the Council "considered" Item No. 2016-54, as Black's Law Dictionary uses the word, after rejecting it on March 24, 2016. Thinking and pondering certainly happened on April 7, 2016 when, in the Council's own words, it "reconsidered" Item No. 2016-54 and scheduled it for a hearing at the Council's May 5, 2016 meeting. It happened again on June 16, 2016, when the Council voted to "withdraw" Item No. 2016-54, immediately introduce Item No. 2016-166, refer that item to the Planning Board, and schedule a joint hearing on it for July 21, 2016. Thinking and pondering also happened on July 21, 2016, when the Council took testimony on and took three votes pertaining to Item No. 2016-166. The Court need not determine at which point the Council crossed the line: it's clear that the Council "considered" something within two years of rejecting Item No. 2016-54.

The next question is whether Item No. 2016-166 is close enough to Item No. 2016-54 to come within the scope of § 5's ban on reconsideration of defeated items that haven't received a planning board's blessing. The Town argues that Item No. 2016-166 escapes the ban because the items are different – not just in their item numbers (the Town concedes that changing a number, by itself, isn't sufficient to allow a rejected item to be reconsidered), but in three substantive particulars. The Town struggles to identify, however, how much change is needed to turn a rejected zoning measure into a sufficiently different one under § 5.

It appears that no court has considered this question in the context of § 5's two-year prohibition on reconsideration of rejected zoning proposals. The question has popped up, however, in connection with a different issue under § 5. In McLean Hospital Corp. v. Town of Belmont, 8 LCR 155 (2000), aff'd, 56 Mass. App. Ct. 540 (2002), a town's board of selectmen submitted to the town's planning board a proposed zoning amendment. The planning board held a public hearing and timely submitted a report recommending adoption of the amendment. But town meeting had a mind of its own: there members approved a version of the amendment that (a) increased a proposed limit on maximum floor area in one proposed subdistrict from 580,000 to 600,000 square feet; (b) reduced the same limit in another proposed subdistrict from 200,000 to 150,000 square feet; and (c) changed the method of calculating a similar limit in another proposed subdistrict.

Opponents of the amendment in McLean contended that the town failed to follow § 5's notice and hearing requirements. They argued that if town meeting wanted to adopt an amendment that differed from the one the board of selectmen and the planning board had recommended, the town needed to begin the § 5 process anew. The McLean court disagreed. It held that "[c]hanges in a zoning amendment that are within the scope of the original proposal do not require further notice." The court held that the variations adopted at town meeting constituted "changes in the degree, and not in the type, of the regulations imposed by the [originally proposed] amendment, and relatively minor changes at that." The court thus concluded that the town did not need to re-notice or re-study what town meeting had adopted. McLean, 8 LCR at 162.

The § 5 notice provisions at issue in McLean serve a different purpose, of course, from § 5's two-year bar on reconsideration of failed zoning proposals. Section 5's notice provisions aim at giving the public a fair opportunity to participate in the process of legislating zoning. See generally Martin R. Healy, et al., 1 Massachusetts Zoning Manual § 13.5.3(a), 3–19 (MCLE 2013). By contrast, § 5's two-year bar on reconsideration of defeated proposals attempts to protect that same public from having to mount repeated campaigns against narrowly backed zoning propositions that can't even win planning-board support. See Kitty v. City of Springfield, 343 Mass. 321 , 324 (1961). The two provisions nevertheless wrestle with the same problem: when are two proposals substantially the same? McLean presents a useful and practical way of answering that question. Using it in the context of analyzing § 5's two-year bar on reconsideration of defeated zoning proposals also promotes uniformity in the application of § 5, an accepted aim of statutory interpretation. See Worcester v. College Hill Props., Inc., 465 Mass. 134 , 138-39 (2013), and cases cited.

It's clear that Item No. 2016-166's makeover of Item No. 2016-54 would not have required new notice and study of "amended" Item No. 2016-54 under McLean, and hence Item No. 2016-166 is within the scope of § 5's two-year bar on reconsideration of Item No. 2016-54. Most of Item No. 2016-166 copies Item No. 2016-54 verbatim. True, Item No. 2016-166 withholds its benefits from parking garages, reduces parking when structures on a lot are demolished or when shared parking is abandoned, and requires submission of a professionally prepared parking plan. But these changes are minor adjustments to what Item No. 2016-54 proposed in the first place: creation of an overlay district that regulates commercial parking lots in and around the Hyannis Harbor. Item No. 2016-166 didn't change the HPOD's boundaries. It didn't expand its benefits beyond Item No. 2016-54's notion of "Commercial Surface Parking Lots," and it didn't propose to count as a protected "parking spaces" areas excluded under Item No. 2016-54. Item No. 2016-116's "record parking plan" requirement likewise didn't expand Item No. 2016-54's scope: the plan merely facilitates enforcement of Item No. 2016-54's requirements.

The Town thus failed to comply with c. 40A, § 5 in adopting Item No. 2016-166. The Court thus will ALLOW Penn and Doherty's motion for summary judgment against the Town, and DENY the Town's cross-motion for summary judgment. The Court will further ANNUL the zoning amendments adopted via Item No. 2016-166. (Since Penn and Doherty haven't attributed the Town's mistake to the conduct of defendants Hyannis Harbor Tours or Marina Atsalis, the Court will DISMISS Penn and Doherty's claims against them.) Because the Court will annul the amendments on procedural grounds, the Court need not address Penn and Doherty's claims that (a) the amendments aren't substantially related to public health, safety, welfare, and morals; (b) § 5 obligated the Planning Board to report its July 21, 2016 recommendations to the Town Council in writing, even though the Council was physically present for the Board's vote on those recommendations; and (c) the Town failed to follow G.L. c. 40, § 32A's requirements with respect to publication of summaries of proposed and adopted zoning amendments.

One additional comment. The Court has concluded only that c. 40A, § 5 barred consideration of Item No. 2016-54 and its sister provision, Item No. 2016-166, within two years of March 24, 2016. This Decision does not address whether, as of the date of this Decision, the Town is now free to "consider" Item No. 2016-54 or similar proposals again. The Court leaves that question to another day.

Judgment shall enter accordingly.