Posted by: Patricia Salkin | October 14, 2019

MA Appeals Court Finds Town Council Violated a Two-Year Bar Provision When It Adopted a Zoning Amendment

This post was authored by Matthew Loeser, Esq.

In 2013. the Town of Barnstable supervised a study of commercial parking lots in and around Hyannis Harbor and determined that, while all of the lots had valid operating licenses, not all had zoning approval. The town further found that in some instances there were inconsistencies between the number of parking spaces allowed by the licensing authority and the number of parking spaces approved by the zoning authority. To resolve these discrepancies and create uniformity, a subcommittee of the town council proposed to amend the town’s zoning ordinance to create the HPOD, which would overlay two existing districts: a residential district and the Harbor District.

However, the town’s planning board and town council failed to pass the amendment. Instead, the council voted to “withdraw the amendment, Item No. 2016-54, stating its “understanding that future changes will be made to this agenda item.” The council then docketed a new item, called Item No. 2016-166. In 2017 the plaintiffs, who were owners of homes located adjacent to some of the parking lots included in the HPOD, filed a complaint for declaratory relief in the Land Court challenging the town council’s adoption of Item No. 2016-166. The Land Court concluded that the two proposals were substantially the same, thus triggered the application of the two-year bar, and annulled the town’s adoption of the amendment.

Pursuant to G. L. c. 40A, § 5, “once a municipal legislative body rejects a proposed zoning ordinance or bylaw, it generally may not reconsider the same proposal for two years.” The court determined that if it found the vote on Item No. 2016-166 was valid, that decision would result in reversal of the judge’s annulment of the amendment, and there would be no need for reconsideration or revote by the planning board or the town council. Since the court’s decision could affect the concrete interests of the parties, it found the issue was not moot.

The court next found that proposed ordinances or bylaws were the same for purposes of G. L. c. 40A, § 5, as they shared the same fundamental or essential character, with little substantive difference. Specifically, the only differences between the two items were that Item No. 2016-166 clarified that the HPOD did not include fully or partially enclosed parking structures, clarified that lot owners could not create more parking spaces by discontinuing other uses on their parcels, and required that lot owners file parking plans with the town. Moreover, Item No. 2016-166 did not change the fundamental and essential character of the item, which was to allow for as-of-right operation of commercial parking lots through creation of the HPOD. As such, the town council’s rejection of Item No. 2016-54 precluded it from considering Item No. 2016-166 for two years, and as the vote on Item No. 2016-166 was done before this time expired, the judge properly annulled it.

Penn vs. Town of Barnstable, 2019 WL 4924989 (MA App. 10/7/2019)

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