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18-P-1124                                             Appeals Court

 FELICIA R. PENN & another1      vs.   TOWN OF BARNSTABLE & others.2


                             No. 18-P-1124.

          Suffolk.        April 11, 2019. - October 7, 2019.

               Present:    Hanlon, Desmond, & Shin, JJ.


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 for the plaintiffs.


    SHIN, J.    Pursuant to G. L. c. 40A, § 5, sixth par., once a

municipal legislative body rejects a proposed zoning ordinance


    1   Philip R. Doherty, trustee.

    2   Hyannis Harbor Tours, Inc., and Marina Atsalis.
                                                                       2


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
                                                                   3


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


     3 See G. L. c. 40A, § 5, second par. ("No zoning ordinance
or by-law 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").

     4 A planning board's recommendation whether to adopt a
zoning amendment is "advisory in nature." Wallace v. Building
Inspector of Woburn, 5 Mass. App. Ct. 786, 787 (1977).
                                                                   4


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




     5 See G. L. c. 40A, § 5, fifth par. ("No zoning ordinance or
by-law or amendment thereto shall be adopted or changed except
by a two-thirds vote of all the members of the town council").
                                                                  5


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 specified that "[a]ny changes to the lot

boundaries or internal configuration shall require that a new

record parking plan be prepared and filed in the same manner."6

     At the public hearing on July 21, 2016, the town council

and the planning board jointly heard testimony, at the close of

which the planning board voted three to two to recommend

approval of Item No. 2016-166.   The town council then voted

(1) eleven to two that "Item [No.] 2016-166 is not a proposed

zoning ordinance which has been previously acted upon

unfavorably by the [t]own [c]ouncil and is not the same

ordinance which was unfavorably acted upon by the [t]own

[c]ouncil as Item [No.] 2016-54"; (2) ten to three that "Item

[No.] 2016-166 contains specific, substantive, and material

changes that distinguish it from the content of Item [No.] 2016-

54"; and (3) eleven to two to adopt Item No. 2016-166.

     In January 2017 the plaintiffs, who are owners of homes

located adjacent to some of the parking lots included in the


     6 Item No. 2016-54 also required the preparation of a
"record parking plan drawn and stamped by a Registered
Professional Land Surveyor" but did not expressly require that
the lot owner file the plan with the town.
                                                                   6


HPOD, filed a complaint for declaratory relief in the Land Court

challenging the town council's adoption of Item No. 2016-166.

The plaintiffs sought annulment of the town council's vote on

numerous grounds, including that the vote was invalid under

G. L. c. 40A, § 5, sixth par., because it came within two years

of the council's rejection of Item No. 2016-54.   The judge

allowed the plaintiffs' motion for summary judgment on that

basis, denied the town's cross motion for summary judgment, and

entered judgment annulling the town's adoption of the amendment.7

The judge declined to address the plaintiffs' other arguments.

Both the town and the plaintiffs filed motions under Mass. R.

Civ. P. 59, 365 Mass. 827 (1974), to amend the judgment, which

the judge denied.   The town then appealed the judgment and the

judge's order denying its rule 59 motion.   The plaintiffs cross-

appealed, claiming that they are entitled to declaratory relief

on the arguments not addressed by the judge in his decision.8




     7 The judge also dismissed the plaintiffs' claims against
defendants Hyannis Harbor Tours, Inc., and Marina Atsalis. On
appeal, the plaintiffs make no argument as to the dismissal of
the claims against these defendants.

     8 Those arguments are as follows: (1) Item No. 2016-166 was
contrary to the town's land-use and planning objectives and not
substantially related to the public health, public safety,
public welfare, or public morals; (2) G. L. c. 40A, § 5,
required that the planning board prepare a written report with
recommendations, which it failed to do; (3) the planning board
had the right to determine in the first instance whether Item
No. 2016-166 was the same as Item No. 2016-54; and (4) the
                                                                      7


    Discussion.    1.    Mootness.   We address at the threshold

whether there remains an actual controversy between the parties.

The parties agree that the issue raised by the town's appeal --

whether the two-year statutory bar invalidated the vote on Item

No. 2016-166 -- is moot because, now that two years have passed

since the town council rejected Item No. 2016-54, there is no

bar to either proposal being reintroduced and reconsidered.         The

parties urge us nonetheless to reach the issue because it is of

public importance and capable of repetition, but could evade

review.   See Seney v. Morhy, 467 Mass. 58, 61 (2014).     We need

not decide whether that exception to the mootness doctrine

applies, however, because we conclude that the issue is not

moot.   Were we to determine that the vote on Item No. 2016-166

was valid, it 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.      Because

our decision could therefore affect the concrete interests of

the parties, the issue is not moot.      See Matter of M.C., 481

Mass. 336, 343 (2019).

    With regard to the plaintiffs' cross appeal, the parties

again agree that the issues presented are moot but that we

should still decide them.    We decline to do so.    Because we



planning board did not hold a hearing that complied with G. L.
c. 40A, § 5.
                                                                    8


conclude, as discussed further below, that the two-year bar

precluded the town council from considering Item No. 2016-166,

we need not address the various other claims pressed by the

plaintiffs.   See note 8, supra.   It is uncertain whether those

issues will arise in the future; even were the town to

reintroduce Item No. 2016-166, there will be new public

hearings, new testimony, and new votes taken by both the

planning board and the town council.   Furthermore, if the issues

do reemerge, they would not evade review.    The plaintiffs are

not entitled to an adjudication of their claims in these

circumstances.   See Libertarian Ass'n of Mass. v. Secretary of

the Commonwealth, 462 Mass. 538, 547 (2012) ("declaratory relief

is reserved for real controversies and is not a vehicle for

resolving abstract, hypothetical, or otherwise moot questions");

M.C., v. Commissioner of Correction, 399 Mass. 909, 911 (1987)

(court "should not decide a moot issue if it has become a

theoretical dispute, if it is not apt to evade review should it

arise again, or if it is not likely to recur").

    2.   Applicability of two-year statutory bar.    We turn to

the question presented by the town's appeal.    The statutory

provision at issue states:

    "No proposed zoning ordinance or by-law which has been
    unfavorably acted upon by a city council or town meeting
    shall be considered by the city council or town meeting
    within two years after the date of such unfavorable action
                                                                   9


     unless the adoption of such proposed ordinance or by-law is
     recommended in the final report of the planning board."9

G. L. c. 40A, § 5, sixth par.   The purpose of the two-year bar

is to give some measure of finality to unfavorable action taken

by a municipal legislative body so that "members of the public

shall be able to ascertain the legislative status of a proposed

change at all times, and to rely on unfavorable action . . . as

a complete defeat of the proposal."   Kitty v. Springfield, 343

Mass. 321, 326 (1961) (discussing predecessor statute).

     In Kitty the Supreme Judicial Court construed the two-year

bar to apply to "any new action of the same character" as a

previously defeated proposal.   Kitty, 343 Mass. at 324.   While

no reported decision has addressed what it means for proposals

to be "of the same character" for purposes of G. L. c. 40A, § 5,

sixth par., we are guided by cases decided in two analogous

contexts.




     9 The judge construed the "unless" clause of the statute as
referring to a planning board's final report on the earlier,
defeated proposal. That is, as applied to this case, the judge
concluded that, because the planning board voted against
recommending adoption of Item No. 2016-54, the two-year bar
applied even though the planning board later voted in favor of
Item No. 2016-166. In its reply brief, the town suggests that
the judge erred and that the relevant final report is the
favorable vote that the planning board recorded on Item No.
2016-166. The plaintiffs, for their part, appear to agree with
the town's reading of the "unless" clause, but argue that the
town council "considered" Item No. 2016-166 before the planning
board's vote on that item. We do not reach these issues,
neither of which has been adequately briefed.
                                                                  10


     First, several cases have considered whether new notice

must be posted, and another hearing held, before a planning

board or municipal legislative body can vote to recommend or

adopt an amendment that is different from the one delineated in

the original notice.   The notice requirement is contained in the

second paragraph of G. L. c. 40A, § 5, and provides that notice

must be given "of the time and place of [the] public hearing, of

the subject matter, sufficient for identification, and of the

place where texts and maps thereof may be inspected"; any defect

in the notice will not invalidate a vote, however, "unless such

defect is found to be misleading."   In analyzing predecessor

statutes, courts have held that, when changes are made to a

proposal during the legislative process, whether new notice and

hearing are required depends on the degree of similarity between

the amendment originally proposed and the one ultimately

recommended or adopted.   Specifically, new notice and hearing

are not required if the changes to the original proposal are

"not of a fundamental character."    Burlington v. Dunn, 318 Mass.

216, 218 (1945).10   Though the town contends that the purposes


     10Accord Johnson v. Framingham, 354 Mass. 750, 752-753
(1968); Sullivan v. Selectmen of Canton, 346 Mass. 784 (1964);
Fish v. Canton, 322 Mass. 219, 223 (1948). See also Doliner v.
Town Clerk of Millis, 343 Mass. 10, 12-13 (1961) ("[c]hanges
made by the planning board after the public hearing" did not
render amendment invalid because they "did not change the
substantial character" of original proposal).
                                                                  11


underlying the notice requirement and the two-year bar differ,

the purposes are at least related -- to let the public know

which amendments are up for consideration and which ones have

been rejected.   The notice cases are therefore instructive given

the settled canon of construction that the parts of a statute

"shall be construed as consistent with each other so as to form

a harmonious enactment effectual to accomplish its manifest

purpose."   Worcester v. College Hill Props., LLC, 465 Mass. 134,

139 (2013), quoting Selectmen of Topsfield v. State Racing

Comm'n, 324 Mass. 309, 313 (1949).

       Second, in Bogertman v. Attorney General, 474 Mass. 607,

620 (2016), the Supreme Judicial Court considered the meaning of

the provision in art. 48 of the Amendments to the Massachusetts

Constitution prohibiting the certification of initiative

petitions that are "substantially the same as any measure which

has been qualified for submission or submitted to the people at

either of the two preceding biennial state elections."     The

court construed this provision to bar any measure that "affirms

or negates essentially the same provisions [as a previous

measure], with little or no substantive difference."     Id. at

621.   We find Bogertman likewise instructive, as the aim of the

art. 48 bar is similar to that of G. L. c. 40A, § 5, sixth par.

-- "to prevent the constant forcing of . . . questions which
                                                                     12


have been rejected" (quotation and citation omitted).

Bogertman, supra at 620.

     With these cases guiding us, we conclude that proposed

ordinances or bylaws are the same for purposes of G. L. c. 40A,

§ 5, sixth par., if they share the same fundamental or essential

character, with little substantive difference.    And applying

this standard to the facts, we have little trouble concluding

that Item No. 2016-166 was the same as Item No. 2016-54.        As

discussed, the only differences between the two items were that

Item No. 2016-166 clarified that the HPOD does not include fully

or partially enclosed parking structures,11 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.   These were amendments that merely

facilitated enforcement of Item No. 2016-54.     They did not

change the fundamental and essential character of the item -- to

allow for as-of-right operation of commercial parking lots

through creation of the HPOD.12


     11We note that Item No. 2016-54 already provided that the
amendment was intended to apply to "open air parking lots."

     12See Johnson, 354 Mass. at 752 (proposed zoning bylaw
authorizing golf clubs and tennis courts not fundamentally
changed by provisions omitting tennis courts and prescribing
minimum size for golf clubs); Sullivan, 346 Mass. at 784
(extending length of proposed zoning district was not
"fundamental" change); Doliner, 343 Mass. at 13 (changing zoning
for some small areas on map "did not change the substantial
                                                                   13


    Citing Ranney v. Board of Appeals of Nantucket, 11 Mass.

App. Ct. 112 (1981), the town argues that we must defer to the

town council's findings that the proposals were not the same and

that "Item [No.] 2016-166 contains specific, substantive, and

material changes that distinguish it from the content of Item

[No.] 2016-54."   But Ranney concerned a different statute, G. L.

c. 40A, § 16, which imposes a two-year bar on a municipal

authority's reconsideration of a rejected application for a

variance or special permit.   The critical difference between

that statute and G. L. c. 40A, § 5, sixth par., is that the two-

year bar of § 16 does not apply if the local "authority finds

. . . specific and material changes in the conditions upon which

the previous unfavorable action was based, and describes such

changes in the record of its proceedings."   G. L. c. 40A, § 16.

It was this language that was the basis for the Ranney court's

determination that deference to the local board was warranted.

See Ranney, supra at 115-116.   In contrast, G. L. c. 40A, § 5,

sixth par., gives the municipal legislative body no role in

deciding whether a proposed ordinance or bylaw is the same as

one previously rejected.   Ultimately, that is a question of law



character of the [proposed bylaw]"); Dunn, 318 Mass. at 218-219
(similar). Cf. Fish, 322 Mass. at 223 ("identity of the
original propos[al]" to repeal zoning bylaw was "utterly
changed" by adoption of amendments "reducing the area
requirements in two kinds of districts and transferring certain
land from one district to another").
                                                                 14


for the courts to decide.   See Onex Communications Corp. v.

Commissioner of Revenue, 457 Mass. 419, 424 (2010).

    Because we conclude here that, as a matter of law, Item No.

2016-54 and Item No. 2016-166 were fundamentally and essentially

the same, the town council's rejection of Item No. 2016-54

precluded it from considering Item No. 2016-166 for two years.

The vote on Item No. 2016-166 therefore came too soon, and the

judge was right to annul it.

                                   Judgment affirmed.

                                   Order denying motions to
                                     amend judgment affirmed.
