Felicia R. PENN & another
TOWN OF BARNSTABLE & others.
April 11, 2019.
Zoning, Amendment of by-law or ordinance.
Municipal Corporations, Town council.
Statute, Construction. Moot Question .
Practice, Civil, Moot case.
ACTION commenced in the Land Court Department on January 5,
2017. The case was heard by Michael D. Vhay, J., on motions
for summary judgment, and motions to amend the judgment were
considered by him.
S. McLaughlin, Jr., Assistant Town Counsel, for town of
W. Kirk, Osterville, for the plaintiffs.
Hanlon, Desmond, & Shin, JJ.
to G. L. c. 40A, � 5, sixth par., once a municipal
legislative body rejects a proposed zoning ordinance or
bylaw, it generally may not reconsider the same proposal for
two years. At issue is whether the town of Barnstable’s
(town) legislative body, its town council, violated the
two-year bar when it adopted a zoning amendment calling for
the creation of the Hyannis Parking Overlay District (HPOD),
despite having rejected a similar proposal to create the HPOD
a few months earlier. On the parties’ cross motions for
summary judgment, a judge of the Land Court concluded that
the two proposals were substantially the same, triggering
application of the two-year bar and annulling the town’s
adoption of the amendment. We agree and thus affirm.
relevant facts are undisputed. In 2013 the town 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
also determined 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.
resolve these discrepancies and create uniformity, a
subcommittee of the town council proposed in December 2015 to
amend the town’s zoning ordinance to create the HPOD, which
would overlay two existing districts, a residential district
and the Harbor District. The town council placed the proposed
amendment on its legislative docket as Item No. 2016-54. The
overarching purpose of the amendment was to authorize
"as of right" operation of commercial parking lots
on land within the HPOD that "ha[d] some legal
pre-existing nonconforming status or [were] licensed as of
May 1, 2014 as an open air parking lot involving the
temporary storage of vehicles." The amendment then set
out site-development standards governing operation of the
lots within the HPOD; those standards addressed, among other
things, the number of parking spaces allowed on the lots,
dimensional requirements, and demarcation of emergency-access
aisles and property boundaries.
town council voted to refer Item No. 2016-54 to the town’s
planning board, which held a public hearing on the proposal
in February 2016. Afterward, the board members voted
four to one not to recommend adoption of Item No. 2016-54,
partly on the belief that the amendment should be deferred
until a further parking study was completed. On March 24,
2016, the town council took its own vote on the
proposal, with seven members voting for adoption
and four members voting against it. This resulted in Item No.
2016-54 failing to pass for lack of two-thirds
weeks later the town council voted to "reconsider"
Item No. 2016-54 and posted notice that it would do so at its
May 5, 2016 meeting, which was later continued to June 16,
2016. At the June 16 meeting, however, the council voted
instead to "withdraw[ ]" Item No. 2016-54, stating
its "understanding [that] future changes will be made to
this agenda item." The council then docketed a new item,
which it called Item No. 2016-166, and voted to refer it to
the planning board and to schedule a joint public hearing on
July 21, 2016.
No. 2016-166 differed from Item No. 2016-54 in three ways.
First, in the definitions section, Item No. 2016-166
clarified that "[c]ommercial surface parking lots shall
not include structures, fully or partially enclosed, that
accommodate vehicle parking spaces." Second, in the
section governing computation of parking spaces, Item No.
2016-166 added in two places a proviso that "the number
of Commercial Surface Parking spaces shall not exceed the
number determined as of the effective date of this
ordinance," even where other uses of a parcel are
"subsequently discontinued." Third, Item No.
2016-166 added a requirement 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" and ...