Penn v. Town of Barnstable

         Argued April 11, 2019.

          Zoning, Amendment of by-law or ordinance. Municipal Corporations, Town council. Statute, Construction. Moot Question . Practice, Civil, Moot case.

          CIVIL 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.

         Charles S. McLaughlin, Jr., Assistant Town Counsel, for town of Barnstable.

         Edward W. Kirk, Osterville, for the plaintiffs.

         Present: Hanlon, Desmond, & Shin, JJ.

          OPINION

         SHIN, J.

         Pursuant 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.

          Background .

          The 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.

          To 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.

         The 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.^[3] 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,^[4] 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 support.^[5]

          Two 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.

         Item 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 ...