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HomeMy WebLinkAbout1981-04-25FRANCl~1 X, THE COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE ATTORNEY GENERAL JOHN W, Mc COR~AI2K BTATE~ OlrlrlC£ BUILDING ONE ABHBUR?Ohl PLACE, BOBTON O2101~ Daniel Long, Town Clerk Office of Town Clerk Town Building North Andover, Massachusetts August 4, 1981 01845 Dear Mr. Long: I regret that I must enclose the amendment to general by-laws adopted under Article 29 of the warrant for the North Andover Annual Town Meeting held April 25 and 27, 1981, with the disapproval of the Attorney General endorsed thereon. Amongst other requirements a money article defeated at an annual town meeting would require a two-thirds vote at a special town meeting. The vote required to pass an article is a matter of substantive law. Towns may regulate the procedures of a town meeting but not matters of substance. G.L.c. 39, §15. Blomquist v. Arlington, 338 Mass. 594 (1959). Ogden v. Selectmen of Free- towq, 258 Mass. 139, 141 (1927). For the other requirements of your by-law, your attention is invited to the case of Young v. Town of Westport, 302 Mass. 597 (1939). truly yours, enclosure HFO/ehm August 4, 1981 Boston, Massachusetts The foregoing amendment to the general by-laws adopted under Article 29 of the warrant for the North Andover Annual Town Meeting held April 25 and 27, 1981, is hereby disapproved. KRANCIB X. BI~L.L~T'?I THE COMMONWEALTH Of MASSACHUSETTS DEPARTMENT OF THE ATTORNEY GENERAL JOHN W, M(] CORI~IA, r-K aTAT[ OFF'ICI BUILDINO ONE: A~=HBURTON PLACE:, BOBTON OZIO8 Daniel Long Town Clerk of North Andover Office of Town Clerk North Andover, Massachusetts August 4, 1981 01845 Dear Mr. Long: I regret that I must enclose the amendment to general by-laws adopted under Article 24 of the warrant for the North Andover Annual Town Meeting held April 25 and 27, 1981, with the disapproval of the Attorney General endorsed thereon. General Laws c. 59, §20A, as inserted by Ch. 580 of the Acts of 1980 states in pertinent part: No city, town, county, district,.public authority or other governmental entity shall make any change or impose any fee for goods provided or services rendered in excess of the cost of furnishing such goods or providing such services. The Conservation Commission fees established by this by-law do not necessarily correspond to the cost of the services furnished by the town. This would be especially so in the case of a large scale development where the fee would bear no relation to the cost of services actually furnished. V.~ry ~uly yours, ~sn~i~cnz~~er al enclosures HFO/ehm August 4, 1981 Boston, Massachusetts The foregoing amendment to the general by-laws adopted under Article 2~ of the warrant for the North Andover Annual Town Meeting held April 25 and 27, 1981 it ~d. TOWN OF NORTH ANDOVER D.~c~ Lo.a, Tow~ Clerk SI~CTION D~PARTM~N'I' The Honorable Francis X. Bellotti Attorney General of Massachusetts One Ashburton Place Boston, Mass. 02108 Dear Attorney General: TOWN BUILDING. NoRra IN~)OVi/R, MISS. 01845 May ~ ~ 1981 At our Annual Town Meeting held in No,th Andover Middle School April 25 and 27, 1981 the following Zoning By-Laws Articles appeared in the Warrant and was voted upon are hereby submittes for your approval. ARTICLE 67. ARTICLE 67: To see if the Town will vote to amend its Zoning Map by changing from l-l, Industrial I District, to R-2, Residence 2 District, the following described parcel of land: the Veteran Auditorium of our Northeasterly: by the center lien of Turnpike Street Southerly: by the property line between Edward W, Phelan, et ux and Agnes Kmiec and Louis G. Fiore, et ux. Westerly: by the center line of Chestnut Street. Under the ARTICLE 68. Petition of Edward W. Phelan aforesaid Article 67 it was VO~ED UNANIMOUS to ADOPT the Article. ARTICLE 68: To sec if the Town will vote to amend its zoning map by changing from a general business district to a residence 4 district, the following described parcel of land: Beginning at a point in the Southeasterly line of Browns Court, a distance of 75.00 feet, distant from the intersection of the Southwesterly bound of Water Street, and the Southeasterly bound of Browns Court; thence along said Southeasterly bound of Browns Court in a direction South, 37° 5' 00" W, a distance of 125.06 feet to a point; thence turning and running South 50° 47' 03" W, a distance of 69.76 feet; thence turning and running South 52° 53' 22" E a distance of 17.14 feet; thence turning and running North 50° 50' 60" E, 125.16 feet to a point; thence turning and running North 51 ° 15' 24" W, a distance of 91.29 feet to the point begun at. Petition of Harold McPhee and others Under the aforesaid Article 68 it was VOTED UNANIMOUS to ADOPT the Article with the following correction. the fifth line after 03'' change the W to E. TOWN OF NORTH ANDOVER D~NII~ LON(], TowII Clerk I~.I~-'~ION DEPAR~IEWI' TOWN BUILDING NORTII ANDOVER, MASS. 018d~ May b~, 1981 ARTICLE 69. ARTICLE 69: To sec'if the Town will vote to amend the Zoning By-Laws by adding the following definition to Section 2.2 Driveways: A way located on a lot which provides vehicular access to the buildings on the lot. Each driveway shall service no more than one lot. Petition of the Board of Fire Engineers Under the aforesaid Article it was VOTED UNANIMOUSi, to ADOPT the Article as amended by adding after the last sentence the words EXCEPT BY SPECIAL PEF~ffT. ARTICLE 7 1. ARTICLE 7h To see if the Town will vote to change the zoning of the hereinafter described property from Residence three (R-3) to Business One (B-l): A certain parcel of land situated on Turnpike Street, North Andover, Essex County, Massachusetts, being shown on "Plan of Land in North Andover, Massachusetts, owned by Carl E. Lager, dated August 1966, by the Pembroke Land Survey Co., Joseph A. Esposito, Jr., Land Surveyor," which plan is recorded with the North Essex Registry of Deeds as Plan NO. 523. Said lot is more particularly bounded and described as follows: Beginning at an iron pipe set in Turnpike Street at the Southwesterly corner of the granted premises at a point hy land now or formerly of Paul and Jannett W. Schmottlach, thence running N 45 degrees 47' 27" W three hundred sixty (360) feet to a set iron pipe; thence turning and running N 31 degrees 19' 03" E one hundred sixty-one and 28/100 (161.28) feet to a set iron pipe in the stone wall at land now or formerly of Peter and Louise Aziz; thence turning and running S 34 degrees 48' 47" E four hundred three and 36/100 (403.36) feet by land now or formerly of said Aziz, Sebastine and Ann D'Emandele, Mariano J. and COra~ Tomarchio and part of land now or formerly of Simone Gioia, thence turning and runnmg S 44 degrees 12' 33" W eighty and 40/100 (80.40) feet by land now or formerly of Paul and Jannett W. Schmottlach to the point of beginning. Containing an area of 44,216 square feet of land, all as shown on said plan. Petition of James P. Gordon and others Under the aforesaid Article 71 it was voted to ADOPT the Article. AFFIF~ATIVE 167 NEGATIVE 22 TOWN 01: NORTH DAm~ LO~, Town Clerk TOWN BULLDINO Noa~'a AN~OV~.~, MASS. 01845 May b~, 1981 ARTICLE 72. ARTICLE 72: To see if the Town will vote to change the zoning of the hereinafter described property from Residence Four (R-4) to Business Four (B-4): A certain parcel of ]aTld being shown as Lot "B" on a certain plan entitled "Plan of Land in Andover and North Andover, Mass., Owned by Daniel J. and Katherine B. Connelly, Stowers Associates, Reg'd. Land Surveyors, March, 1966", filed as Plan No. 5465 with the North District Essex Registry of Deeds, and said parcel be/ng more particularly bounded and described as follows: NORTHEASTERLY by Turnpike Street, or Salem Turnpike, so<ailed, one hundred and fifty and 03/100 (150.03) feet, more or less, as shown on said plan; NORTHWESTERLY, by land now of one Cataido, twohundred fifty-three and 07/100 (253.07) feet, more or less, as shown on said plan; SOUTHWESTERLY, by other land of said Cataido, one hundred fifty (150) feet, more or lesa, as shown on said plan; and SOUTHEASTERLY, by other land of said Cataldo, two hundred fifty (250.00) feet, more or less, as shown on said plan. Containing 30,800 square feet, more or less. Petition of Dennis F. Conneliy, Jr. and others Under the aforesaid Article it was VOiD UNANIMOUS to ADOPT the Article. ARTICLE TOWN OF NORTH ANDOVER DANIEL LON~, Town Clerk BDECTIDN DEPART~NT TOWN BUILDING NORTH ANDOYglI, MASS, 01846 May ~, 1981 ARTICLE 74: To see if the Town will vote to amend the North Andover Zoning By-Law and Map to change from Residential - 5 (R-5) to General Business (G.B.) a parcel of land located at or near the corner of Chickering Road and Walker Road consisting of 98,660 square feet of land, more or less. The portion of said parcel fronting on Chiekering Road and consisting of 32,790 square feet, more or less is currently zoned (G.B.). This petition seeks to re-zone the northeasterly portion of said parcel which consists of 45,870 square ft., more or less. The entire parcel is more particularly bounded and described as follows: DESCRIPTION OF ENTIRE PARCEL Beginning at a concrete bound on the northwesterly side of Chickeriug Road, (Route 125), said point is 144.'/feet northeasterly from the centerline of the Boston and Maine Railroad as measured along the northwesterly line of Chickering Road; thence by a curve to right having a radius of 28.34 feet and along said curve, fifty-nine and eighty- one hundredths (59.8]) feet to an iron pipe along the easterly line of a road to Meadowview Apartments; thence N 33 deg. 3?' W, three hundred ninety five 005) feet along said road to an iron pipe; thence by a curve to the right having a radius of 45.00 feet and along said curve fifty-nine and eighty seven hundredths (59.8/) feet to an iron pipe; thence N 73 deg. 39' E two hundred eighty nine and four tenths (289.4) feet by land of Meadowview Apartments to a drill hole in a stone wail; thence {4 deg. 05' E two hundred ninety five (295) fee( aiong said stone wall and land now or formerly of N.E. industries, inc., to an iron pipe in the northwesterly side of Chickering Road to the point of beginning. Containing 2.27 acres, more or less. The part sought to be rezoned is more particularly bounded and descril)ed as that portion of the above described premises, bounded as follows: Southerly: By the Zoning Line, 400.00 feet, more or less; Westerly: By Walker Road, as shown on said plan: Northerly: By land now or formerly of Meadowview Apartments, 289.40 feet, more or less; Easterly: By land now or formerly of N.E. Industries, Inc. The entire parcel is shown on a plan recorded with the Essex North Registry of Deeds as Plan No. 7158. Petition of V. Scott Fo[fansbee and others Under the aforesaid Article 7~ it was VOTED UNANIMOUS ~o ADOPT the Article. e t TOWN OF NORTH ANDOVER DAi~I~ Lo.c, Town Clerk NI.E~ON D~PAETM~N~ TOWN BUILDING NORTII AI~DOVER, MASS. 01845 r~ay [. 1981 ARTICLE ?5. ARTICLE 75: To see if the Town will vote to amend its Zoning By-Law by changing the zoning map of the town by changing from R-2 to R-5 the parcel of land hereinafter described: Land Off Bradford St,, No. Andover, Ma., and more particularly bounded and described as follows: Beginning at a point on the easterly side of Bradford St. at land N/F of No. Andover Pine Crest Realty Trust; thence running northeasterly, by land N/F of No. Andover Pine Crest Realty Trust 206.82 ft.; thence running easterly by land N/F of No. Andover Pine Crest Realty Trust 67.00 ft.; thence running southeasterly by land N/F of No. Andover Pine Crest Realty Trust 247,00 ft.; thence running southwesterly by land N/F of No. Andover Pine Crest 67.85 ft.; thence running westerly by land N/F of David Beauvais and Valerie Markosian 205.00 ft.; thence running southeasterly by' land N/F of David Beauvais and Yalerie Markosian 193.00 ft.; thence running northwesterly on Bradford Street by land N/F of No. Andover Pine Crest Realty Trust 290.66 feet to point of beginning. Petition of C. Lincoln Giles and others Under the aforesaid Article 75 it was VO~BD to ADOPT the Article. A A?IW OATIV 37. ARTICLE 76. ARTICLE 76: To see if the Town will vote to amend the Zoning By-Law as follows: Delete Sec. 4.124 Business I District (9) and insert the following: "Sec. 4.12~ Business I District (9) Residential uses including one and two family dwellings. Apartments shall be allowed where such use is not more than 50~t0 of the total Boor space in the building." Sec. 4, Table h Summary of Use Regulations - Permitted Use, Multi-family Dwellings and apartments: Delete the word "No" and insert the word, "Yes"; One-family Dwelling, Business 1: Delete the word "No" and insert the word "Yes"; Two-family Dwelling, Business I: Delete the word "No" and insert the word "Yes." Petition of the Planning Board Under the aforesaid Article 76 it was VOTED UNANIMOUB::to ADOPT the Article ARTICLE 77. TOWN OF NORTH ANDOVER DAN~m LONe, Town Clerk ~[~CTIOI'i' DNPAR'I'M~NT ~1'O W~ BUILDING NORTH AIqI~OVER, MASS. 0154~ May 4, 1981 ARTICLE 77: To see if the Town will vote to amend its Zoning By-Law by changing the zoning map of the Town to include the parcel of land hereinafter described within the Residential 4 District: Land of Riverview, Ferry, North Main and Ashland Streets, North Andover, Mass., and more particularly bounded as described as follows: Beginning at a point on the Easterly boundary of the Merrimack River at land N/F of James and Katrenia Griva; thence running Easterly by land N/F of Griva; a distance of 262 feet: thence running Southerly along the Western boundary of the B. & M. Railroad Right of Way a distance of 380 feet to the Cochichewich Brook; thence running in a Southeasterly course along Cochichewich Brook a distance of 140 feet; thence running Easterly along Cochichewich Brook by land N/F of Center Realty Trust 160 feet to the centerline of Sutton Street; thence running Southwesterly along the centerline of Sutton Street by land N/F of Center Realty Trust 145 feet to the centerline of North Main Street 250 feet to the centerline of Ashland Street; thence running Southeasterly along the centerline of Ashland Street a distance af 705 feet; thence running Northwesterly along the side lot of land N/F of Liles and Larochelle to the Merrimack River; thence running Northeasterly along the Merrimack River a distance of 1,035 feet to the Eastern terminus of North Main Street; thence running Southeasterly 240 feet to the Western boundary of Riverview Street by land N/F of Comm. of Mass. Greater Lawrence Sanitary District; thence running Northerly along the Western boundary of North Main Street by land N/F of Comm. of Mass, Greater Lawrence Sanitary District 600 feet; thence running Westerly by land N/F if Com. of Mass. Greater Lawrence Sanitary District 90 feet; thence running in a Northeasterly course 200 feet to the Eastern boundary of the Merrimack River; thence running Northeasterly along the Merrimack River to the point of beginning. Petitition of the Planning Board Under the aforesaid Article 77 it was VOTED toADOPT the ARTICLE. with the following Amendment. Athe end of the Article add. "Exclude from the above mentioned re-zonig the following parcels of land: land owned n/f by Vincent B. Landers frontingon North Main St. consisting of 41,~5 ft.sq, more or less and known as Assessors parcel number 22 on plat 2~; land owned n/f by Rosario Finnochiaro fronting on North Main St. consisting of 24,320 ft. sq. and known as Assessors parcel number 5 on plat 28; and land owned by Raymond Finnochario fronting on Riverview St. consisting of 39,850 ft. sq. and known as Assessors parcel number 2 on plat 28, land owned by Louis J. Kmiec fronting oni:~he corner of Ashland and Ferry Street consisting of 9,750 ft. sq. more or less and known as Assessors parcel number 3 on plat 17; land owned n/f by Gregory & Stella Frederick fronting on the corner of North Main and Ferry Street :consisting of 24,275 ft. sq. more or less and known as Assessors parcel number 6 on plat 28. ~he vote on Article 77 AFFIRMATIVE 153 NEGATIVE 10 ATTEsT.All re~uirementsA TRUE COPY°f the law//~ve~~been complied with. TO VN OF NORTH ANDOVER D~'w_~ Lo.c, Town Clerk ELECTION D~'AETMENT TOWN BUILDING NORTH A~OVEI~, MASS. 0154/~ Honorable Francis X. Bellotti Attorney General of Massachusetts State House Boston, Mass. Dear Mr. Bellotti: The following members of the North Andover Planning Board are all duly elected and have been sworn to said office. ~aul A. Hedstrom Michael P. Roberts Vincent Turano John J. Burke Erich Nitzsche Chairman Vice -Chairman Clerk North Andover Planning Board ATTEST: TOWN OF NORTH ANDOVER HASSACHUSETTS April 25, 1981 THE PLANNING BOARD MAKES THE FOLLOWING RECOMMENDATIONS ON ZONING AMENDMENT ARTICLES FOR ANNUAL TOWN MEETING, April 25, 1981: ARTICLE 67 ARTICLE 68 - Re-zone parcel on Browns Court ARTICLE 69 Definition for Zoning By-Laws ARTICLE 71 - Re-zone parcel on Route 114 Re-Zone parcel on Turnpike Street - FAVORABLE - FAVORABLE - FAVORABLE - FAVORABLE ARTICLE 72 Re-zone parcel on Turnpike Street - UNFAVORABLE ARTICLE 74 - Re-zone parcel on Chickering Road - FAVORABLE ARTICLE 75 - Re-zone parcel on Bradford Street - UNFAVORABLE ARTICLE 76 - Correct Table 2 in Zoning By-Law - FAVORABLE ARTICLE 77 Re-zone parcel on Riverview/Ashland FA¥ORABLE TOWN OF NORTH ANDOVER MASSACHUSETTS May 5, 1981 Daniel Long, Town Clerk Town Office Building North Andover, Mass. 01845 Dear Mr. Long: This shall serve as notification that legal noti~ces were mailed on Articles 67, 68, 69, 71, 72, 74, 75, 76, and 77 and passed at April 25, 1981 Annual Town Meeting. Very truly yours, PLANNING BOARD Paul A. Hedstrom, Esq. Chairman jw ATTEST: yA 7J~UE COPY TOWN OF NORTH ANDOVER D~mm Lo~o, Town Clerk I~.~ECTION DEPARTMENT ~he Honorable Francis X. Bellotti Attorney General of Massachusetts One Ashburton Place Boston, Mass. 02108 TOWN BUILDING NORTH ANDOVER, MASS. 01845 May 1~, 1981 Dear Attorney General: At our Armual Town Meeting held in the Veterans Auditorium of our North Andover Middle SchoOl April 25 and 27 1981 the following Articles appeared in the Warrant and was voted upon and are hereby submitted for your approval. . AR~I CLE 21. ARTICLE 21. To see if the Town will vote to amend its General By-Laws, Section 3.12 as follows: BUILDING PERMIT FEES: The estimmed construction costs of new buildings shall be based upon a cost factor of $20 per square foot. Estimated construction cost of adaitions, alterations and remodeling shall be the actual contract price. The permit fees shall be $5.00 per thousand based on the estimated costs of construction. There shall be a minimum fee of $10 per permit. Building permit fees shall not be required for municipally-owned buildings or structures. Petition of the Building Inspector ARTICLE Under the aforesaid Article it was V0~ED UNANIMOUS to Adopt the Article. ARTICLE 24. To see if the Town will vote to amend the By-Laws of the Town of North Andover in the following manner: I. Amend the first sentence of Chapter 3, Section 3.5 {A) which now reads, "The Conservation Commission shall be empowered to require a performance guarantee for work authorized by any order issued by said Commission under Section 40 of Chapter 131 of the General Laws," so as to read ns follows: "The Conservation Commission shall be empowered to require a performance guarantee for work authorized by any order issued by said Comnfission under Section 3.5 (B) (WETLANDS PROTECTION) of the By-Laws of the Town." 2. Amend Chapter 3, Section 3.5 (B) (WETLANDS PROTECTION) by the addition of the following paragraph: "7. Any application submitted under this By-Law will not be considered complete until such time that a fee is submitted to the Conservation Commission of the Town of North Andover. Said fee to be calculated in accordance with the following criteria: (a.) Proposed Roadways and Driveways; Five dollars ($5.00) for every ten (10) $ feet, or part thereof, of linear length, measured along the centerline, within ,~ one hundred (100) feet of areas subject to this Section. ~ ~! (b.) Structures and/or Associated Appurtenances; Tewnty-five dollars ($25.00) for each proposed structure within one hundred (100) feet of areas subject to this Section. (c.) Filling, Altering, Dredging or Removing; Five dollars ($5.00) for every one hundred (100) square feet, or part thereof, of Filling, Altering, Dredging or Removing not associated with criteria (a.) or (b.) above. (d.) Total fee submitted in accordance with (a.), (b.), and/or (c.} above, shal} not be less than Twenty-five dollars ($25.00). Petition of James Lafond and others Und~er the aforesaid Article it was voted to ADOPT the Article AR~I CLE 25. Under the TOWN OF NORTH ANDOVER DAm~ Lo~o, Town Clerk ~EC~ION DNPAR~M~i"I' TOWN BUII2DI~O NOnTH AI~OOVER. MASS. 01845 May h, 1981 aforesaid Article it was ARTICLE 25: To see if the Town will vote to amend the Town By-Laws by deleting from Section 7,2 Impoundment of Dogs, the following words: "Which is waived on the first offense." (This amendment would require the payment of a $10.00 administrative fee by the owner of an impounded dog for the first and subsequent offenses.) Petition of the Selectmen VO~ED UNANIMOUS to Adopt the Article. ARTICLE 26. Under the ARTICLE 26: To see if the Town will vote to amend the Town By-Laws by adding the following new section: Section 7.$ License Fees. "The dog license fees as provided for in Chapter 140, Section 139 of the Mass. General Laws shall be increased hy one dollar." The existing Section 7.5 shall be renumbered Section 7.6. Petition of the Selectmen aforesaid Article it was VO~gD UNAI~IMOUS to Adopt the Article. ARTICLE 29. Under the ARTICLE 29: To see if thc Town will vote to amend the Town of North Andover General By-Laws by adding to Chapter 2: Town Meeting, Section 2.10 the following: "any money article which has been voted down or defeated at an Annual Town Meeting may not be considered at a Special Town Meeting unless it is an extreme emergency, recommended by the Board of Selectmen and the Advisory Board and passed at the Slx'cial Town Meeting by a two-thirds vote of the meeting." Petition of Constance A. Connors and others aforesaid Article it was VOTED to Adopt the Article. TOWN OF NORTH ANDOVER Town Clerk The Honorable Francis X. Bellotti Attorney General of Massachuestts One Ashburton Place Boston, Mass. 02108 RECEIVED f¢ i981 ~partm~t c[ A~orney_ ~enera! TOWN BU~I~G NOR~ ANDOV~, ~A8~. 0184~ May 11 1981 Dear AttOrney General: At our Annual Town Meeting held in the Veteran's Auditorium of our North Andover Middle School April 25 and 27 1981 the following Article appeared in the Warrant and was voted upon and hereby submitted for your approval. ARTICLE 31. ARTICLE 31: To see if the Town will vote to amend its General By-Laws by adding to Section 3.5, the following sub-section: (D) The Conservation Commission shall be empowered to establish "Guidelines Governing Organization and Operation of the North Andover Conservation Commission" and the positions of Associate and Honorary Members. The Guidelines shall include (1) Name and purpose, (2) List of duties of officers, (3) Election of officers, (4) Duties of members, (5) List and duties of committees, (Vl) Operating rules, and other items as found necessary by the Conservation Commission. Appointment of Associate and Honorary Members shall be subject to a majority vote of the Board of Selectmen. Petition of James R. Lafond and others It was voted to adopt the Article with the following amendments. Line three(3) by striking out (and the positions of Associate and Honoray Members) and stiking out the last sentence (Appointmen of Associate and Honorary Members shall be subject to a majority vote of the Board of ~electmen) All requirements of the law have been complied with, ATTEST: TOWN OF NORTH ANDOVER DANIEL LONG, Town Clerk ELEC~ON DEPARTMEN~ TO W'I~ BUILDING NORT~ ANDOVER, MASS. 01845 May ~, 1081 ARTICLE 32. ARTICLE 32: To see if the Town will vote to amend its General By-Laws in the following manner: 1) Delete, in the last sentence of Section 3.7 (A), the words "to assist the Town Counsel," so as to read, "The Selectmen may employ Special Counsel whenever, in their judgment, the necessity therefore arises." 2) Amend Section 3.? (B) ~emoving the word "all" in the first sentence and the words "all" and "any and all" in the second sentence so that Section 3.7 (B) will now read: "B. Duties: The Town Counsel shall, subject to the direction of the Selectmen, conduct the prosecution, defense or compromise of legal proceedings to which the Town is a party and the prosecution or defense as the case may be, of legal proceedings by or against any Town officer, board or committee. He shall prepare or approve legal instruments to which the Town is a party or in which any right of interest of the Town is involved, shall advise any Town officer, board, or committee upon legal matters and proceedings affecting the performance of his or its official duties, and shall perform such other duties as may be imposed upon him by these By-Laws or vote of Town." 3) Amend 3.5 (Conservation Commission) by the addition of the following subsection: "3.S (C) Upon recommendation of the Conservation Commission, the Board of Selectmen may employ Special Counsel to assist the Conservation Commission in carrying out the legal aspects, duties and requirements of Sections 3.5 (A) and 3.5 (B)." Petition of James R. Lafond and others Under the aforesaid Article it was VOTED to Adopt the Article. AFFI I~MATIVE 172 N~ATIVE 116 All requirements of the law have been complied with. AT'lEST: / THE COMMONWEALTH OFiMASSACHUSETTS DePARTMEN~ OF The AttoRneY GENERAL JDHN W, ONE AMH ~ L,I RTl3 N August 3, 1981 Daniel Long Town Clerk of North Andover Office of Town Clerk North Andover, Massachusetts 01845 Dear Mr. Long: I enclose the amendments to zoning by-laws adopted under Articles 67, 68, 69, 71, 72, 74, 75, 76 and 77 of the warrant for the North Andover Annual Town Meeting held April 25 and 27, 1981, with the approval of the Attorney General endorsed thereon. Very truly yours, O ' Connell Assistant Attorney General enclosure HFO/ehm Augusti3, 1981 Boston, Massachusetts The foregoing amendments to the zoning iby-laws adopted under Articles 67, 68, 69, 71, 72, 74, 75, 76 and 77 of the warrant for the North Andover Annual Town Meeting held April 25 and 27, 1981, are hereby approved, i THE COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE ATTORNEY GENERAL JOHN W, MC I~ORIdACK B'rATE: OFF'IDs` BUILDINI~ ON[ ABHBURTON I=I,,,A~~', BOBTON 02108 August 4, 1981 Daniel Long Town Clerk of North Andover Office of Town Clerk North Andover, Massachusetts 01845 Dear Mr. Long: I enclose the amendments to general by-laws adopted under Articles 21, 25, 26, 31 and 32 of the warrant for the North Andover Annual Town Meeting held April 25 and 27, 1981, with the approval of the Attorney General endorsed thereon. Very t.ruly yours, Henry F- 0 onne Assistant Attorney General enclosure HFO/ehm August 4, 1981 Boston, Massachusetts The foregoing amendments to the general by-laws adopted under Articles 21, 25, 26, 31 and 32 of the warrant for the North Andover Annual Town Meeting held April 25 and 27, 1981, are hereby approved. TOW~ 01~ NORTH A~DOV~R M~ASSACHUSETTS May 5, 1981 Daniel Long, Town Clerk Town Office Building North Andover, Mass. 01845 Dear Mr. Long: This shall serve as'notification that legal nott:ces were mailed on Articles 67, 68, 69, 71, 72, 74, 75, 76, and 77 and passed at April 25, 1981 Annual Town Meeting. Very truly yours, PLANNING BOARD Paul A. Hedstrom, Esq. Chairman jw ATTEST: A ~UE COPY~-~ 'rowlg oF NOI~TH ANDOVER MASSACHUSETTS April 25, 1981 THE PLANNING BOARD MAKES THE FOLLOWING RECOMMENDATIONS ON ZONING AMENDMENT ARTICLES FOR ANNUAL TOWN MEETING, April 25, 198I: ARTICLE 67 ARTICLE 68 - Re-zone parcel on Br~wns Court ARTICLE 69 - Definition for Zoning By-Laws ARTICLE 71 - Re-zone parcel on Route 114 Re-Zone parcel on Turnpike Street - FAVORABLE FAVORABLE - FAVORABLE - FAVORABLE ARTICLE 72 - Re-zone parcel on Turnpike Street - UNFAVORABLE ARTICLE 74 - Re-zone parcel on Chickerin§ Road - FAVORABLE ARTICLE 75 - Re-zone parcel on Bradford Street - UNFAVORABLE ARTICLE 76 - Correct Table 2 in ~onin§ By-Law - FAVORABtE ARTICLE 77 - Re-zone parcel on Riverview/Ashland FAVORABLE TOWN OF NORTH ANDOVER DA-'~mL LO.~'G, Town Clerk ELECTION DEP~RT]VfENT TOVVN BUILDING ~'OI/TH ANDOVE~. MASS. 01845 May 4, 1981 Honorable Francis X. Bellotti Attorney General of Massachusetts State House Boston~ Mass. Dear Mr. Bellotti: The following members of the North Andover Planning Board are all duly elected and have been sworn to said office. Paul A. Hedstrom Michael P. Roberts Vincent Turano John J. Burke Erich Nitzsche Chair~mn Vice-Chairman Clerk North Andover Planning Board TOWN 0~' NORTH ANDOVER HASSACHUS'ETTS April 25, 1981 THE PLANNING BOARD MAKES THE FOLLOWING RECOMMENDATIONS ON ZONING AMENDMENT ARTICLES FOR ANNUAL TOWN MEETING, April 25, 1981: ARTICLE 67 - Re-Zone parcel on Turnpike Street - FAVORABLE ARTICLE 68 - Re-zone parcel on Br~wns Court - FAVORABLE ARTICLE 69 - Definition for Zoning By-Laws - FAVORABLE ARTICLE 71 - Re-zone parcel on Route 114 - FAVORABLE ARTICLE 72 - Re-zone parcel on Turnpike Street - UNFAVORABLE ARTICLE 74 ARTICLE 75 ARTICLE 76 ARTICLE 77 Re-zone parcel on Chickering Road - FAVORABLE Re-zone parcel on Bradford Street - UNFAVORABLE Correct Table 2 in ~Zoning By-Law FAVORABLE Re-zone parcel on Riverview/Ashland FAVORABLE the owner of the home occupation and residing in such dwelling. (5) Real estate signs no~ to exceed twenty-four (24) inches by thirty-six (36) inches in size which shall advertise only the rental, lease or sale of the premises upon which they are placed. (6) a) Farming of field crops and row crops, truch gardens, orchards, plant nurseries and green houses. b) On any lot of at least three (3) acres, the keeping of a total of not more than three (3) cf any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional ~cre of lot size to nine (9) acres the keeping of one additional animal or bird; but not the keeping of any animals, birds, or pets of persons not resident on such lot. c) On any lot of at least ten (10) acres, the keeping of any number of animals or birds regardless of ownership and the operation of ecluest- rian riding academies, stables, stud farms, dairy farms, and poultry __batteries. d) The sale o£ prg~ucts raised as a result of the abOVe uses oh the subject land. (7) Swimming pools~in'excess of two feeth depth shall be considered a structure 'and permitted provided such pools are enclosed by a suitable wall or fence at least four feet in height to be determined by the Building Inspector to prevent the entrance of persons other than those residing at the pool location and further provided that such pools are located to the rear of the front building line of the house and no closer to a side or rear lot line that ten (10) feet. (19) Hotel or motel (Special Permit required). (20) Parking, indoor storage and other accessory uses associated with the above uses, provided that such accessory use shall not be injurious, noxioup, or offensive to the neighborhood. Business 1 District, .~_ ~ ~ . (1) Retail establishments. (2) Personal service establishments. (3) Professional offices, banks, real estate offices an~ insurance offices. (4) Eating or drinking uses may be permitted only as a secondary use within a permitted primary use. ...~. -~ (5) Place of worship. .... · (6) Nonprofit school. (7) Public building or use and public service corporation. -13- .(8) (lo) 4.12.5 (2) (3) (4) (5) (?) Residential use. a) Farming of field crops and row crops, truck gardens, orchards, plant nurseries, and greenhouses. b) On any lot of at least three (3) acres, the keeping of a total of not more than three (3) of any kind or assortment of animals or birds in addition to the household pets of a family living on such lot, and for each additional acre of lot size to nine (9) acres the keeping of one additional animal or bird; but not the keeping of any animale, %irds~ or pete of persons not resident on such lot. c) On any lot of at least ten (10) acres, the keeping of any number of animals or birds regardless of ownership and the operation of equestrian riding academies, stables, stud farms, dairy fams, and poultry batteries. d) ~h~ sale of products ~aised as a result of the above uses on the subject land. Swimming and/or tennis clu~s shall be permitted with a Special Permit. Parking, indoor storage and other accessory uses customarily associated with the above uses, provided that such accessory use shall not be injurious, noxious or offensive to the neighborhood. Business 2 District (1) Retail establishmente. Personal service establishments. Professional offices, banks, real estate offices and insurance offices. Business and other offices.' Public building or use and public service corporation. Swimming and/or tennis clubs shall be permitted with a Special Permit. Place of worship. E~ting and drinking establishments. Nonprofit school or private school for profit or museum. Indoor place of amusement or assembly. Automotile service station (limited to one in each 2,000 linear feet of street or highway as measured along centerline). -14- ATTEST- A True Cop> Town ~ Table 1 SUMNARy OF USE REGULATIONS ~ermitted Use Res.- Res. Res. Bus. Bus Bus.i Bus, Gen'l Ind Ind. Ind. Ind. ,. ,2&34 2 3 4 3us. 2 3 Agricultural UseI Yes Yes Yes Yes Yes Yes Yes No Yes Yes Yes Yes Art Gallery No No No Yes Yes Yes Yes Yes Yes Yes Yes No Auto Service Sra.1 No No No No Yes1 Yes~ No Yes1 No Yes No SP Auto & vehicle No No No No No No No Yes No Yes No No repair, body shop" Bus garage No No No No No No No Yes No Yes No Yes Business & other No No No No1 Yes Yes Yes Yes Yes Yes Yes Yes ~ffices ' ~ ~ar wash N° No No No No No No Yes No Yes No No : ~emetery , ' Yes Yes Yes No No No No No No No No No ~ating & drinking No No NoI No1 Yes Yes NoI Yes No1 No1 No1 BP ~stablishmen% ~uneral Parlor No No No No Yes Yes No ? -Yes No No No No ' ~olf Course Yes Yes Yes No No No No No Yes Yes Yes Yes 3ues~ House ' No Yes Yes No' No No' No No' No' No .No No ~elistop No No No No No" No No No SP SP ' SP No Indoor Place of No No No No Yes Yes No Yes No No No No zmusement or assembly ~umber, fuel storage No No No No No No No Yes No Yes No Yes ~r contractor's yard ~anufacturing1 No No No No No No ~No No Yes Yes Yes Yes ~edical Center1 No No No No Yes Yes Yes Yes Yes Yes Yes No - ~otel or Hotel No No SP No No No Yes No No No No No ~ulti-family dwell- No No Yes No1 SP No No No No No No No lng & apartments ~ew car sales1 No No No No No Yes No Yes No No No No (onprofit school Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes ~ursing & coeval- SP SP SP No No No Yes No No No No No ;scent homes' Indoor ice skating No No No No No No No No SP No SP No Facilities ,~ )ne-family dwelling Yes Yes Yes No No No No No No No No No' ~ersonal service No No No1 Yes Yes Yes~ No1 Yes No1 No1 No1 Nb~- ~stablishment ~lace of worship Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes ~rinting & repro- No No No No Yes Yes Yes Yes Yes Yes Yes Yes tucti on ~rivate school for Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes Yes )to fit :rofessional offices No1 No1 Yes1 Yes Yes Yes Yes Yes Yes Yes Yes Yes ~ublic building or SP SP SP Yes Yes Yes Yes Yes Yes Yes Yes Yes- ~se ?ublic garages & No No No No No No No No No No Ye~ No ~ccessory buildings Public Service No No No No No No No No No No Yes No ]orporation P ?able Permitted Us~ Res. Res. Res.'Bus~ Bus', Bus. Bus, aen'l Ind, Ind. In~. Ind. 8 ~,2~3 4 ~ ~ 2 3 4 Bus. 1 2 3 Public Sanitary No No No No No No No No No No Yes Disposal Sits Public Storage No No No No No No No No No No Yes No of Equipment Recreation area SP SP SP SP SP SP ~P SP SP No SP No Research & develop- No No No No No Yes Yes Yes Yes Yes Yes Yes ment facilities Retail establish- No No N01 Yes Yes Yes No1 Yes1 No1 No1 N°l N°l ment Rooming house Yes1 Yes Yes1 No No No No No No No No No T~T~ depot No No No No Yesl Yes No Yes-- No' No No No Town houses No No Yes No SP No No No No No No No Two-family dwelling No Yes Yes .No No No No No No No No No Veterinary hospital No No- No No No No No No No Yes No No & kennel Warehousing& No No iNo No 'No No No Yes No1 Yes No1 Yes wholesaling .- . Munioipal recrea- Yes Yes No No No No No No No No ..No No tion areas 1See detailed district use regulations. SP= with Special Permit only. No%e~ This chart is for summary information purposes ouly and is no% a substitute for the detailed district use regulations contained in Sectic~ 4 of this ~y-Law. ~.xe~3 mlO.T. &doo eum~ Y TOWN OF NORTH ANDOVER DA~.~,~ LONe, Town Clerk ELE~'TION DEPARTM~N~ ~he Honorable Francis X. Bellotti Attorney General of Massachusetts One Ashburton Place Boston, Mass. 02108 TOW~' BUILDING No~l ANDOVZR. MASS. 0184§ May ~, 1981 Dear Attorney Oeneral: At our Annual Town Meeting held in the Veteran Auditorium of our North Andover Middle School April 25 and 27, 1981 the following Zoning By-Laws Articles appeared in the Warrant and was voted upon are hereby submittes for your approval. AI~ICLE 67 · ARTICLE ~: To see if the Town Nil vo~ to amid i~ Zoning M~ by ~ from L1, {ndustH~ { ~Hc~ to R-2, R~dence 2 Distfi~, the ~llo~ng described par~] of land: Under the ARTICLE 68. Northeasterly: by thc center lien of Turnpike Street Southerly: by the property line between Edward W. Phelan, et ux and Agnes M. Kmiec and Louis G. Fiore, et ux. Westerly: by the center line of Chestnut Street. Petition of Edward W. Phelan ~ aforesaid Article 67 it was V0~ED UNANIMOUS to ADOPT the Article. ARTICLE 68: To'see if the Town will vote to amend its zoning map by changing from a general business district to a residence 4 district, the following described parcel of Iand: Beginning at a point in the Southeasterly line of Browns Court, a distance of 75.00 feet, distant from the intersection of the Southwesterly bound of Water Street, and the Southeasterly bound of Browns Court; thence along said Southeasterly bound of Browns Court in a direction South, 37 ° 5' 00" W, a distance of 125.06 feet to a point; thence turning and running South 50° 47' 03" W, a distance of 69.76 feet; thence turning and rdnnin8 South 52 ° .53' 22" E a distance of 17.14 feet; thence turning and running North 50° 50' 60" E, 125.16 feet to a point; thence turning and running North 51 ° 15' 24" W, a distance of 91.29 feet to the point begun at. Petition of Harold McPhee and others I Under the aforesaid Article 68 it was VOTED UNANIMOUS to ADOPT the Article with the following correction. the fifth line after 03'' change the W to E. ARTIGLE 69. TOWN OF NORTH ANDOVER Dmvn~ Ix)Nc, To~n Clerk ~..~I'ION DRPARTIVfRNT ARTICLE 69: To see if the Town will vote to amend the Zoning By-Laws by adding the following definition to Section 2.2 Driveways: A way located on a lot which provides vehicular access to the buildings on the lot. Each driveway shall service no more than one lot. Petition of the Board of Fire Engineers TO ~Fi%]' ]3UILDING NORTFI ANDOVER. MASS, 01845 May ~, 1981 Under the aforesaid Article it was VO~ED UNANIMOU~, to ADOPT the Article as amended by adding after the last sentence the words EXCEPT BY SPECIAL PERMI?. ARTY CLE 71. ARTICLE 71: To see if the Town will vote to change the zoning of the hereinafter described property from Residence three (R-3} to Business One (B-l): A certain parcel of land situated on Turnpike Street, North AndoYer, Essex County, Massachusetts, being shown on "Plan of Land in North Andover, Massachusetts, owned by Carl E. Lager, dated August 1966, by the Pembroke Land Survey Co., Joseph A. EsposJto, Jr., Land Surveyor," which plan is recorded with the North Essa{ Registry of Deeds as Plan NO. 523. Said lot is more particularly bounded and described as follows: Beginning at an iron pipe set in Turnpike Street at the Southwesterly corner of the granted premises at a point by land now or formerly of Paul and Jannett W. Schmottlach, thence running N 4.5 degrees 47' 27" W three hundred sixty (360) feet to a set iron pipe; thence turning and running N 31 degrees 19' 03" E one hundred sixty-one and 28/100 (161.28) feet to a set iron pipe in the stone wall at land now or formerly of Peter and Louise Aziz; thence turning and running S 34 degrees 48' 47" E four hundred three and 36/100 (403.36) feet by land now or formerly of said Aziz, Sebastine and Ann D'Emandele, Mariano J. and Cora Tomarchio and part of land now or formerly of Simone Gioia, thence turning and running S 44 degrees 12' 33" W eighty and 40/100 (80.40) feet by land now or formerly of Paul and Jannett W. Schmottlach to the point of beginning. Containing an area of 44,216 square feet of land, all as shown on said plan. Petition of James P. Gordon and others Under the aforesaid Article 71 it was voted to ADOPT the Article. :AFFIRMATIVE 167 NEGATIVE 22 TOWN OF NORTH ANDOVER DA,'Vm~ LOle~, Town Clerk ELECTION DEPARTMENT TOWN' BUILDII~G May 11., 1981 ARTICLE 72. Under ~he ARTICLE 72: To see if the Town will vote to change the zoning of the hereinafter described property from Residence Four (R-4) to Business Four (B-4): A certain parcel of land being shown as Lot "B" on a certain plan entitled "Plan of Land in Andover and North Andover, Mass., Owned by Daniel J. and Katherine B. Connelly, Stowers Associates, Reg'd. Land Surveyors, March, 1966", filed as Plan No. 5465 with the North District Essex Registry of Deeds, and said parcel being more particularly bounded and described as follows: NORTHEASTERLY by Turnpike Street, or Salem Turnpike, so-called, one hundred and fifty and 03/100 (150.03) feet, more or less, as shown on said plan; NORTHWESTERLY, blt land now of one Cataldo, two hundred fifty-three and 07/100 (253.071 feet, more or less, as shown on said plan; SOUTHWESTERLY, by other land of said Cataldo, one hundred fifty (150) feet, more or less, as shown on said plan; and SOUTHEASTERLY, by other land of said Cataldo, two hundred fifty (250.00) · feet, more or less, as shown on said plan. Containing 30,800 square feet, more or less. Petition of Dennis F. Connelly, Jr. and o~hers aforesaid Article it ~as VOTED UNANIMOUS to ADOPT the ArticLe. ARTICLE Under TOWN OF NORTH ANDOVER D~ LON~, Town Clerk ~.,ECTION TOWN BUILDING NOR~ ANDOVER, MASS. 01845 1981 ARTICLE 74: To see if the Town will vote to amend the North Andover Zoning By-Law and Map to change from Residential - 5 (R-5) to General Business (G.B.) a parcel of land located at or near the corner of Chickering Road and Walker Road consisting of 98,660 square feet of land, more or less. The portion of said parcel fronting on Chickering Road and consisting of 52,790 square feet, more or less is currently zoned [G.B.). This petition seeks to re-zone the northeasterly portion of said parcel which consists of 45,870 square ft., more or less. The entire parcel is more particularly bounded and described as follows: DESCRIPTION OF ENTIRE PARCEL Beginning at a concrete bound on the northwesterly side of Chickering Road, (Route 125), said point is 144.7 feet northeasterly from the centerline of the Boston and Maine Railroad as measured along the northwesterly line of Chickering Road; thence by a curve to right having a radius of 28.34 feet and along said curve, fifty-nine and eighty- one hundredths (59.81) feet to an iron pipe along the easterly line of a road to. Meadowview Apartments; thence N 53 deg. 57' W, three hundred ninety five 005'1 feet along said road to an iron pipe; thence by a curve to the right having a radius of 45.00 feet and along said curve fifty-nine and eighty seven hundredths (59.87) feet to an iron pipa; thence bi 73 deg, 59' E two hundred eighty nine and four tenths (289.4) feet by land of Meadowview Apartments to a drill hole in a stone wall; thence 14 deg. 05' E two hundred ninety five (2951 feet along said stone wall and land now or formerly of N.E. Industries, Inc., to an iron p~pe in the northwesterly side of Chickering Road to the point of beginning. Containing 2.27 acres, more or less, The part sought to be rezoned is more particularly hounded and described as that portion of the above described premises, bounded as follows: Southerly: By the Zoning Line. 400.00 feet, more or less; Westerly: By Walker Road, as shown on said plan: Northerly: By land oow or formerly of Meadowview Apartments, 289.40 feet. more or less; Easterly: By land ~ow or formerly of N.E. Industriesa Inc. The entire parcel is shown on a plan recorded with the Essex North Registry of Deeds as Plan No. 7158. Petition of V. Scott Follansbee and others the aforesaid Article 74 it was VOTED UNANIMOUS ~o ADOPT the Article. TOWN OF NORTH ANDOVER TOWN BUILDING NORTH ANDOVER. ~ASS. 01845 May k, 1981 A~ICLE 75 ARTICLE 75: To see if the Town will vote to amend./ts Zoning By-Law by changing the zoning map of the town by changing from R-2 to R-5 the parcel of land hereinafter described: Land Off Bradford St., No. Andover, Ma., and more particularly bounded and described as follows: Beginning at a point on the easterly side of Bradford St. at land N/F of No. Andover Pine Crest Realty Trust; thence running northeasterly, by land N/F of No. Andover Pine Crest Realty Trust 206.82 ft.: thence running easterly by land N/F of No. Andover Pine Crest Realty Trust 67.00 ft.: thence running southeasterly by laud N/F of No. Andover Pine Crest Realty Trust 247.00 ft.; thence running southwesterly by land N/F of No. Andover Pine Crest 67.85 ft.; thence running westerly by land N/F of David Beauvais and Vaierie Markosian 205.00 ft.; thence running southeasterly by land N/F of David Beauvais and Valeric Markosian 193.00 ft.; thence running northwesterly on Bradford Street by land N/F of No. Andover Pine Crest Realty Trust 290.66 feet to point of beginning. Petition of C. Lincoln Giles and others Under the aforesaid Article 75 it was VOTED to ADOPT the Article. AFFIRMATIVE 1~6 NEGATIVE 37. ARTICLE 76. Under ARTICLE 76: To see if the Town will vote to amend the Zoning By-Law as follows: Delete Sec. 4.124 Business I District (9) and insert the following: "Sec. 4.124 Business I District (9) Residential uses including one and two family dwellings. Apartments shall be allowed where such use is not more than 50% of the total floor space in the building." Sec. 4, Table h Summary of Use Regulations - Permitted Use, Multi-family Dwellings and apartments: Delete the word "No" and insert the word, "Yes"; One-family Dwelling, Business h Delete the word "No" and insert the word "Yes"; Two-family Dwelling, Business !: Delete the word "No" and insert the word Petition of the Planning Board the aforesaid Article 76 it was VOTED UNANIMOUB to ADOPT the Article TOWN OF NORTH ANDOVER ELECTION TOWN BUILDING NORTH ANDOVER. MASS. 01845 May h, 1981 ARTICLE 77. ARTICLE 77: To see if the Town will vote to amend its Zoning By-Law by changing the zoning map of thc Town to include the parcel of land hereinafter described within the Residential 4 District: Land of Riverview. Ferry, North Main and Ashland Streets, North Andover, Mass.. and more particularly bounded as described as follows: Beginning at a point on the Easterly boundary of the Merrimack River al land N/F of James and Katrenia Griva; lhence running Easterly by land N/F of Griva; a distance of 262 feet: thence running Southerly along the Western boundary of the B, & M. Railroad Right of Way a distance of 380 feet to the Cochichewich Brook; thence running in a Southeasterly course along Cochichewich Brook a distance of 140 feet; thence runmng Easterly along Cochichewich Brook by land N/F of Center Realty Trust 160 feet to the centerline of Sutton Street; thence running Southwesterly along the centerline of Suttun Street by [and N/F of Center Realty Trust 145 feet to the centerlinc of North Main Street 250 feet to the centcrllne of Ashland Street; thence running Southeasterly along the centerline of Ashland Street a distance of 703 feet; thence running Northwesterly along the side lot of land N/F of Liles and Larochelle to the Merrimack River; thence running Northeasterly along the Merrimack River a distance of 1,035 feet to the Eastern terminus of North Main Street; thence running Southeasterly 240 feet to the Western boundary of Riverview Street by land N/F of Comm. of Mass. Greater Lawrence Sanitary District; thence running Northerly along the Western boundary of North Main Street by land N/F of Comm. of Mass. Greater Lawrence Sanitary District 600 feet; thence running Westerly by land N/F if Com, of Mass. Greater Lawrence Sanitary District 90 feet; thence running in a Northeasterly course 200 feet to the Eastern boundary of the MerJ,lmack River; thence running Northeasterly along the Merrimack River to the point oT beginning. Petitition of the Planning Board Under the aforesaid Article 77 it was VOTED toADOPT the ARTICLE. with the following Amendment. Athe end of the Article add. "Exclude from the above mentioned re-zonig the following parcels of land: land owned n/f by Vincent B. Landers frontingon North MainSt. consisting of ~1,?~5 ft.sq, more or less and known as Assessors parcel number 22 on plat 26; land owned n/f by Rosario Finnochiaro fronting on North Main St. consisting of 2~,320 ft. sq. and known as Assessors parcel number 5 on plat 28; and land owned by Raymond Finnochario frontingon Riverview St. consisting of 39,850 ft. sq. and known as Assessors parcel number 2 on plat 28, land owned by Louis J. Kmiec fronting on~he corner of Ashland and Ferry Street consisting of 9,750 ft. sq. more or less and known as Assessors parcel number 3 on plat 17; land owned n/f by Gregory & Stella Frederick fronting on the corner of North Main and Ferry Street consisting of 24,275 ft. sq. more or less and known as Assessors parcel number 6 on plat 28. The vote on Article 77 AFFIRMATIVE 153 NEGATIVE 10 All requirements of the law ~v~e been complied with. ,, 594 338 Mass. 594 Blomquist ~. Arlington. ROBERT C. BLOMQUIST & others vs. Tows or ARLINGTON. Middlesex. December 2, 1958. -- February 27, 1959. Pre~nt: W~ms, C.J., Ro~, WmL~s, Co~, & W~r~O~E, JJ. Mun~p~ CoW~s, To~ meet~g, By4aws aM ordinances, ployees. La~ ~ F~t. E~e, Judicial notice. ~ ~ f~r ~ s~tement~ by · ~s~er re~erred to to~ bydaw~ ~hose con- tents were not the ~ubjec~ o~ ~d~gs, the s~temen~ were findings fa~t b~d~g on t~ couP, but ~ so ~r as the statements embraced tM co~cfion o~ by-la~s properly before ~his court, ~hey were m~ of law not b~d~g upon ~s ~ourt. ~597] TMre can be no judlc~l notice of ~wn by-izw~. A prov~io~ in the "Rule~" for town meefin~ con~a~ed in the bydaws of ~on, ~Mt the "duties of the moderator, and the government o~ the town meeting, not specially provid~ ~or by l~w, or by . . · [such~ rule, s~ be determ~ed by tM rules of practice con,[ned Robert's Rule~ of Order," could not govern ~he n~ber of votes nece~ ~W for subst~t[ve action by the town, ~nd ~ ~ ~ited ~own mee~ ~g ~ ~Mt to~, w~ch Md the s~dard ~orm of ~epresen~five meet~g gove~m~n~ ~der G. L. c. 43A, ~ vote to ~mend ~ by-~w by m~jorRy of ~he to~n meeting members present ~M vot~g but by th~ ~ m~jofity o~ the entire number o~ to~ meeting members was va~d ~d e~ecti~e notwi~hstand~g ~h~ tM numar of votes required for an ~en~en~ o~ ~ by4~w w~s not so "specia~y pro~ded for" ~M Robot's R~es o~ Order provid~ tM~ a byd~w ~ght "be amended z~ a~y re~lar busi~e~ meet~g by ~ vo~ o~ tM ~]or~y of tM mem~p." ~59~599] Fo~o~g accept~ce by ~on of St. 1952, e, 503, es~bl~ng ~here~ a to~ ~r fo~ of gover~ent and pro~d~g ~ ~ 15 (d) "~b]ect to the cl~s~c~t~on pla~ as established ~ow or hereMter by the ~w~ by-~ws, tM to~ manger sha~ fix ~he compe~afion ~wn o~ce~ a~d employees," an amen~ent ~dop~ed at · ~own mee~ lng ~ere~s~g the s~S ~hereW~ore fixed for the m~num, ~st step ~ate, ~M maxum ~afies of members of the fire and pohce men~ in the town's clarification and PW plan est~b]ished by byd~w ~der G. L. c. 41, ~ 108A, ~ ~mended ~hrou~h St. 19~8, c. 351, did no~ merely fix m~m~ and ~x~um salaries w~hL~ w~ch tM town ~nager co~d set the ~mounts p~y~ble, bu~ ~tse~ fixed tM ~mo~ts payable, and entitled members o~ ~he dep~rtm~n~ who h~d re~ched and were reeei~g m~ s~laries ~t the time of tko W be p~d the ~cre~sed m~x~um ~mo~ thereafter; the tion ~M PW plan was not inconsistent w~th suck provision of S~.1952, 338 Mass. BILL IN I 1957. The suit ~ Harold E. Joseph A, WILKI~S~ seeks a bind vote of the ¢lassificatio] creasing sal manent me] fondant, an those depar their ]ntere suit in thei' their own r: persons are O'Connor, 3 who filed ~ decree dec] appealed. The tow~ sentative t c. 43A; (2 town empl police dope (3) St. 195 manager fo In accor through St in 1949 ad, "Classifica t The reCor references to and "¢lassific~' ~ The first Plan. The of shall consist o; be listed in s, Section 2. T TON, gs of :aced ;vets daws neat by a less ~ded ~tire rein ~d 838 Mass. 594 595 Blomquist v. Arlington. BILL IN EQUITY, filed in the Superior Court on May 6, 1957. The suit was heard by Lurie, J., on a master's report. Harold E. 3£agnuson, for the plaintiffs. Joseph A. Purcell, Town Counsel, for the defendant. W~LK~rCs, C.J. This bill in equity under G. L. c. 231A seeks a bin(hng declaration as to the validity and effect of a vote of the annual town meeting purporting to amend the classification and pay plant of the town of Arlington by in- creasing salaries. The plaintiffs, nine in number, are per- manent members of the fire or police department of the de- fendant, and have been chosen by the other members of those departments as a committee to protect and promote tMir interests under the vote. The plaintiffs bring this suit in their individual capacities and seek to enforce/only their own rights. The defendant does not argue that::]~her persons are interested and should be joined. See Kilroy v. O'Connor, 324 Mass. 238. The case was referred to a master, who filed a report, which was confirmed. From a final decree declaring that the vote was invalid, the plaintiffs appealed. The town has accepted (t) the standard form of repre- sentative town meeting government provided by G. L. c. 43A; (2) the provisions of G. L. e. 31, which bring all town employees, including the members of its fire and police departments, within the classified civil service; and (3) St. I952, c. 503, entitled, "An Act establishing a town manager form of government for the town of Arlington." In accordance with G. L. c. 41, § 10SA (as amended through St. 1948, c. 351)., a vote of the annual town meeting in 1949 adopted, as part of the by-laws, article 7C entitled, "Classification and [Pay Plan." = At a special town meeting ~ The record does not refer consistentlrV' to the plan or plans. There are references to "classification and pay plan/ "classification plan," "pay plan," and "classification plan and pay plan." ' The first three sections of article 70 are: "Section 1. Thc Classification Plan. The ofilcial cl~sification plan when established by vote of the town, shal! consis~ of a classification for positions in the service of the town and shall be listed in a schedule to be known as schedule A, and made a part hereof. Section 2, The Pay Plan. The official pay plan, when established by vote 338 Mass. 594 596 ...... ~ ..... Blomquist e. Arlington. later in 1949 the classification plan was adopted as article 7C, § 1, schedule A, and the pay plan was adopted as article 7C, § 2, schedule B. These were later amended from time to time. The disputed vote occurred at an ad]ourned session o[ the annual town meeting, duly called and held on March 20, 1957. TM vote, wlfich is set forth in a footnote,t was to ~crease the nfinim~, step rote 1, and the ~mum salaries for grades PF 2, PF 3, PF 4, PF 5, and PF 6 in the classifica- tion plan, article 70, ~ 1, schedule A, and in the PW plan,. article 7C, { 2, schedule B? Upon ~he motion, 106 votes were in the a~rmative, and 91 were in the negative. The moderator dectgred thaC ~he motion was lost, because i~ lacked a majority of the entire membership of 251, w~ch he ~led was neeessaW to amend ~ by-law under Roberfs Rules of Order. of the to~, s~ll con~ist of the 'nimum and ms,mum salaries to be paid · ' ' ~cluded in the classification plan, as such to alt employees m ~ny ~s~on ~ ~ ~lished by vote of the town. S~d ss~ ~[,~ }~n~ht~,~eS~ ~.....~e~on 3. ~mendment of eu the ~wmO~ included here~ for the ~hns ~e cla~fcstlon p~u, or.. p ~ manner ~ro~ded by law, or m ~. · ' ~ · a ~e amc.cea m me - ' a licable. ~mstm~on ther~2f~_~ Y .~ ~. l~ws o~ the Wwn, ~chever m. pP the manner prov?e~ ~y me u~- ~s ~ be ~t fo~h in the pay plan may minimum sn~ mammum m~a~e .... ~ ......t~n~ 'or as .ro~de~ estab~ or c~n~e~ u~.-~W T, hy ~w, whichever is appncsme. ~ "That the classification plan -- schedule A and pay plan -- schedule B as . hereb are amended by strik- a,tablished by article 7.C~of Vhe ,by ~.?2.,be~ a__~3 776 'y'step 1 7- ~ nut the words and hgUmS nnm~,-. ~Zho PF 2 of said scneames ~ -'--..~ ~4 428' where ~ey ~ppear~ ~ .~: ..... S4 ,,L~i)4~imam -- $4,852' where ~hey ~p~ear l~ ~ d ..... a~4m~ ~s i~ertig~ in pts~e thereof thp~w°ms ,~mL ~,178' where y~V ~ by st~n~ out the ~or~ a~u ~ff~n~ ~se~g ~ place ther~t me ~ppear in ~ade P~ 4 o~ s~m scne~m~ wolds ~nd fi~es 'ma~mu~ ~ $5,~0; ~nd by s~ng ou~ the worde and fi urea 'm~ximum ~ 55,~0 whe e ~heY appear ~ ~de PF 5 of r ~d fi~res ' rn~mum ~ ..... ~,~'nol~ee~heteof6heword , . .... ~ $~8' where they ~,a hv stri~ out the wom~2~ -~- n :~n~ in ,lace t~r~l m~ ..... .... ~. _nz~ 6 of said schedules a~u ~.-- e appear m gr~= 5~ ~ o. ~nO., ,, ~ Before the vo~e schedule B co~iued the ~oRo~ng: PF ~ gnuu~l (ponce and fire) Maximum Grade Minimum Step 1 PF 1 $2286 $2~72 $2460 4094 4428 I~F 2 3776 4852 FF $ 5178 PF 4 5640 PF 5 684B 33S Mass. Section 9 for Govern, moderator, specially p~ be deferral: Rules of ( tion), so of the tow, lng: "68. Rules of C that have: ment~ ma: a vote of amendmc business thirds vo~ The m! and member~ requiredI change pay plar meeting by a requi~ ship have b~ is adal: which: o[ fact byAaxx findin~ Saugu specto: these prope rulinl :7C, ~0, ~ tO ties 5ca- lan, The ~ he :rt's Said i the >r in V bfi .e~ 1 they bed- 338 Mass. 594 597 Blomquist v. Arlington. Section 9 of article 2 of the town by-laws, entitled "Rules for Government of Town Meetings," is: "The duties of the moderator, and the government of the totem meeting, not specially provided for by law, or by the foregoing rules, shall be determined by the rules of practice contained in Robert's Rules of Order Revised (Seventy-Fifth Anniversary Edi- tion), so far as they are adapted to the condition and powers of the town." In this edition of Robert's Rules is the follow- ing: "68. Amendments of Constitutions, By-laws, and Rules of Order. Constitutions, by-laws, and rules of order, that have been adopted and contain no rule for their amend- ment, mny be amended at any regular business meeting by a vote of the majority of the entire membership; or, if the amendment was submitted in writing at thc previous re~flar business meeting, then they ma~be amended by a two- thirds vote of those voting, a quorum being present." The master found, in so far as they are questions of fact and material, (1) that whether a majority of the entire membership or a majority of those present m~d voting is required to amend the classification plan, or to establish or change the minimum and maximum salaries set forth in the p~y plan, is a question involving the government of the totem meeting which is not specifically provided for by statute or by any provision of the by-laws of the town, and (2) that a requirement of a vote of the majority of the entire member- ship at a regular business meeting, to amend by-laws that have been adopted and contain no rule for their amendment, is adapted to the condition and powers of the town. In so far as these two statements reflect the contents of by-laws which are not made the. subject of findings, they are fmd.ings of fact which we must accept. We have no knowledge of by-laws beyond the extent to which they are in evidence or findings properly brought to our attention. Cerwonka v. Saugus, 316 Mass. 152, 153. Sunderland v. Building In- spector of No. Andover, 328 Mass. 6~8, 641. But in so far as these two statements embrace the construction of by-laws properly before us or of the legal effect of statutes, they are rulings of law not binding upon us. 598 338 Mass. 594 1. The first issue is whether the vote was valid. We pass by the questions whether the pay plan is part of a town by-law; whether figures relating to salaries in the classifica- tion plan are surplusage; and whether thc reference to the classification plan in the vote of March 20, 1957, also is surplusage. Coming directly to § 68 of Robert's Rules of Order vised, we are at once struck by its dubious application to town meeting government. The phrase "regular business meeting" would be an inept description of a town meeting, whether annual or special. The phrase "previous regular business meeting" would be even more inept. The two phrases in the same sentence must refer to the same type of meeting. Even by forced cmmtruc~ion, the phrase "previ- ous regular business meeting" would run counter to statute and to settled law. Literally it would embrace a previous town meeting which after completion of the warrant had adjourned_~rithout day. By G. L. c. 39, § 10 (as amended through St. 1954, c. 32), "The warrant for all town meetings shall state . . . the subjects to be acted upon .... No action shall be valid unless the subject matter thereof is contained in the warrant." This means that "the subjects to be acted upon must be suftlciently stated in the warrant to apprise voters of the nature of the matters with which the meeting, is authorized to deal." Burlington v. Dunn, 318 Mass. 216, 219. Loring v. }Vestwood, 238 ~[ass. 9, 10. Section 68 should not be construed so as ~t~ circumvent this principle, nor would its scope be confined ;~ adiourned town meetings where the warrant had not been completed. The facts of this case,' however, do not compel a decision based upon tenuous interpretations. This is because we are of opinion that the imposition of a requirement of a vote of a maiority of the entire membership is one of substance and not of practice. By § 9 of article 2 of the town by-laws the topics made subject to "the rules o[ practice contained in Robert's Rules" are "the duties of the moderator, and the government of the town meeting." These are procedural matters. The legal effect of any given number of votes upon 338 Mass. any subject Selectmen o. given the r contended l conferred b subiect to ~ at town me Cases tel eedural ma the author] are not inc Walsworth llnless "aC meetings' 238 Mass. to an ap[ Mass. 597 an interpr We 2. 'The ~ tiffs to be questions Two of tl serted in ~ maximum can fix s: pay the r police or mum sal~ the incre answered There master. to mem[ containe{ step 2, When th establish 594 ~ he ~ to I~SS ing, ~wO ~ of u~e :led nas ~ets ant ~ich I0. Ws wn 338 Mass. 594 599 BIomquist v. Arlingtou. any subiect considered is one of substantive law. Ogden v. Selectmen of Freetown, 25S Mass. 139, 141. Section 9, if given the meaning as ruled by the moderator and as now contended by the town, would be in excess of the authority conferred by the enabling act. "A town may pass by-laws, subject ~o this section, for the regulation of the proceedings at town meetings." G.L. (Ter. Ed.) c. 39, § 15. Cases relied upon by the defendant which deal with pro- cedural matters, and in wldch there is no attempt to irnpair ttm authority of the town meeting to act by majority vote, are not inconsistent with our holding but tend to confirm it. Walsworth v. Casassa, 219 Mass. 200 (no change in by-law unless "adopted by two consecutive legally called town meetings" a~ least two months apart). Loring v. Westwood, 238 Mass. 9 (by-law making estimate a condition precedent to an appropriation). Compare Young v. Westport, 302 5~ass.-3~7. In Merrill v. Lowelg, 236 Mass. 403, there was an interpretation of a statute, constituting the city charter. We conclude that t~he vote was valid. 2. The next issue the master entitles, "The right of plain- tiffs to be paid at maximum." Upon this he reported certain questions of law which were not reached by the tria[ judge. Two of these are: (1) Are the increased salary figures in- serted in the classification plan and the pay plan merely the maximum and minimum within which the to~'a manager ms,mum as"kmended t0 all those me pay the t police or fire department who had previously reached maxi- mum salary and ~eceived compensation at that rate before the increase? We think that the first question should be answered in the negative and the second in t.he affirmative. There now become material other facts found by the master. Those parts of schedule B of the pay plan relating to members of the police and fire departments originally contained figmres representing established nfinimum, step 1, step 2, and maximum salaries for the respective grades. When the classification plan and the pay plan were originally established by vote of the town meeting in I949 the members 600 338 Mass. 594 Blomquist ~.. Arlington. of those two departments who Md served at least three years as permanent civil service appointees were placed at maxi- mum salary in their respective grades. Up to March, 1953, employees serving under the classification and pay plan were eligible for a step rate increase after serving one year in a grade. Sometime in 1953 the town manager dropped one step rate for members of the two departments, so that they became eligible for maximum after two years' service, and all members thus eligible were paid at maximum. Later the town meeting amended the classification and pay plan so as to provide only tin'ce step rates of pay (minimum, step 1, and maximum) witkin a particular grade. There- after members of the police and fire departments attained max/mum salary, as amended from time to time by the town meeting, upon serving two years in any grade. Since the .establishment of the classification plan and pay plan all members who had been ori~nally placed at, or subsequently attained, maximum salaw have been so paid in their respec- tive grades under the plans as amended and changed from time to time by vote of the town meeting. The source of the town's authority to establish the classification and pay plan is G. L. e. 41, § 10SA (as amended through St. 1948, c. 351). The autt'.ority is express that "a town by vote of the town at a t.:~wn meeting, ['may] establish, and from time to time amend, a plan establishing minimum and ma.,dmum salaries to be paid to employees in positions so classified, and such salary plan may provide for the attainment of such maximum salaries by periodical step-rate increases based on length of service.''~ As we said ~ The ~tatute reads: "A city by ordinance and a town by by-law may es- tablish, and from time to time amend~ a plan classifying any or all positinns~ other than those filled by popular election and those under the direction and control of the school committee, into groups and clas~es doing substantially similar work or having substantially equal responsibilities. Such city or town may in like manner or in a city by vote of the city, vouncil, subject to the provisions of its charter, and in a town by vote of the ~own at a town meeting, establish, and from time to time amend, g plan establishing minimum and maximum salaries to be paid to employees in positions so classified, and such salary' plan may provide for the attainment of such maximum salaries by periodical step-rate increases based on length of service. Nothing in this sec- tion shall be construed to conflict with the provisions of chapter thirty-one. Any by-law adopted under the provisions of this section shall not be subject to section thirty-two of chapter forty." 338 Mass. 594 in Robinson v. "The plan by employees." The defend plaintiffs is c c. 503, § 15 ( provisions of ~ subject to th~ hereafter by t the compensal to removal by provides, "All in the to~m o consistent wit of the town ~ force and cftc vote " classification'. at the time ~ their respecti~ by § 108A, ra lng the plan, made subject The plainti officials, such have any ant been establist required for attain maxin present, bill, ~ in this respec 3. Before necessity an~ 1957 annual lation (filed a ~ This must in the plaintiffs tha It i~ enough for I 1953, : plan c year 'opped ?rviee, Later : plan []~ere- :ained tOWI1 ,~ the tz all ~eutly from the reded t hat }ting :es ill t' for ,lical said :bdly - the 'qng, ' '~ by ,j,ct 338 Mass. 594 601 Blomquist v. Arlington. in Robinson v. Selectmen of }Va{ertown, 336 Mass. 537, 541, "The plan by its terra lutes the compensation of the affected empIoyees." The defendant argues that the compensation of the plaintiffs is controlled by the special statute, St. 1952, c. 503, § 15 (d), which reads: "Subject to all applicable provisions of chapter tlfirty-one of the General Laws, and subject to the ctassification plant as established now or hereafter by the town by-laws, the town manager shall fix the compensation of all town off%ers and' employees subject to removal by him." It should be noted that § 46 of c. 503 provides, "All laws, by-laws, rules and re~dlations in force in the town of Arlington when this act takes effect, not in- consistent with its provisions, whether enacted by authority of the town or any other authority, shall continue in full force and effect until otherwise provided by law, by-law or vote .... " We perceive no inconsistency between the classification and pay plan and c. 503, § I5. The plaintiffs at the time of the vote had all attained the maximum for their respective grades. The to~-n meeting, as permitted by § 10SA, raised the maximum for those grades by amend- ing the plan, to which the power of the town manager was made subject by c. 503, § 15. The plaintiffs in their brief contend that "administrative officials, such as boards or heads of departments, do not have any authority to fix salaries after such a pay plan has been established other tha~ specify the length of service required for increases fror~ minimum to step rates or to attain maximum." In discharging our duty under the present bill, we are'~ot confronted by any further question in this respect. 3. Before the master there was an issue as to "the necessity and adequacy of the appropriation" made at the 1957 annnal town meeting. The record contains a stipu- lation (filed after the fihng of the master's report) that there ~ This must include the pay plan. We need not resolve the issue raised by the plaintiffs that the classification plan should not include the salaxy figures. It is enough for present purposes that in Arlington it doe~. 602 338 Mass. 594 Blomquist v. Arlington. was a special town meeting on November 4, 1957, at which it was voted: "That the town appropriate the sum of $12,501.83 for personal services of members of the police department and the sum of $17,031.90 for personal services of members of the fire department for the purpose of com- pensating the members of said departmenls at salaries pro- vided for by the vote of the town of 106 in the affirmative and 91 in the negative at the adjourned session of the 1957 annual town meeting held on March 20, 1957, under article 27 of the warrant for said annual town meeting, if said vote shall be determined in the proceeding for a declaratory judgment or decree of certain members of said departments now pending in the Middlesex Superior Court to be legally effective to amend the pay plan established under section 2, article 7C of the by-laws of the town, for the period [rom the effective date 'o£ said vote to the end of the year 1957, said sums ta be taken from available funds now in the treasury and expended under the direction of the town manager." The defendant does nob refer to the stipulation in its brief. In the circumstances, we do not regard the ~hird issue as one presently requiring a binding declaration by us. ~. The several interlocutory decrees appealed from si~rmed, and the~'fmal decree is reversed, and a new fmal decree is to be entered in accordance ~vith this opinion. So ordered. 338 Mass. 603 D~ Sue[olk. Present: WI Neglige~z~, InvRci Declaration, Sp Whore allegations evidence warr~ though the dec proof ~ad whic' A plaintiff's proof A de~karatlon all~ motor vehicle ( was in~ured in in its operatic the defendant on a journey] i to attend to ¢ tween them,' ' Evidence that th~ in the defend~ amusement d~ in which the ! ~ lower rent f~ was an invite~ for [niuries re operation whi Tog~. Wr The action Philander ~ Thomas D. plaintiff. WILE[INS, accident on vehicle owne tion contain, ~ld the the t to the r 3, Oil the him e of kich ~,ted ding five ,d to ~uce :mdc le to ntiff .~C~ ~ount :~ the Mass.] OGDEN t~. SELECTMEN OF FREETOW'~'. 139 it related to the four weeks immediately preceding the ownership of the store by the plaintiff, it cannot be said that the discretion of the judge in admitting the evidence was wrongly exercised. See Nob'es v. Meharrty, 213 Mass. 598. The exceptions in each case are overruled. So ordered. C~ES H. OGOE..~ & others vs. SELECTMEN OF FP~EETOV~ & others. Brls~ol. October 25, 1926.-- Januaw 4, 1927. Present: Ev~o, c.g., Caos,L C~aaonn, Wa~, & S~N~aSON, Mi~n~dpa~ Corp~aHoas, ~ising and appropriation of money, meeting, Moderator. Under an appropriate wa=an~ at a ~peclal meeting of a to~m ha~%g no by-laws, one hundred twelve votes were c~t in favor of and eighty-nine votes against a pro~sal that a ce~ain sum be r~ed and appropriated for the co,traction of certa~ streets, ~ ¢on~unction with lke sums contribut~ by the State and county. U~n the vote, the moderator "ruled that a~ a special meet~g a tw~tMrds vote ~ necess~ to make an appropriation, the article was declar~ lost." Hdd, that (1) The vo~e was valid; by it money was raised and appropriated for a generM pubic use and the sum so rais~l and approp/ated became a part of the general tax le~ for the year; (2) The vote containing no mention of an incu=hg of ~debtedness, s~atuto~ pro~s[ons relative to a vote by two t~ds of those voting were inapplicable: the moderator's mlMg w~ ermn~us; (3) The moderator's declaration was a mere statemen~ of option; it was not ~t~ ~ duties as prescribed ~ G. L. o. 39, ~ 15, ~d w~ of no binding force. The mere fac~, that at ~ a~ual to~ meeting a~iclea in the w~ant relating to the ra2ing and expenditure of money for work to be done on co,Mn streets was voted do~, did no~ affect the validity of vote for the s~e pu~ae passed at a later spedal tonm meeting duly wan~ed. The mere facts, ~hat after the vote at the special town meeting above described was passed, another speda[ ~own meeting was called and articles in the warrant, seeking action to rescind the vote at the previous meeting and to deter~ne how the money voted at the pre;%us meeting shmfld be raised, were lost, and further aRicles, '%0 ~a~se and appro- priate'' money for the purpose of the work on the described struts, were laid on the table, did not affect the validity of the vo~ at earlier spedal meeting. Whet~ the StMe or tko count' or the to~ took the fim~ step in the pm~gs as to the construction of the road, to w~ch ~he vote a~ the fi~ r~cial meet~g related, was of no con~uence in dete~g, in a suit ia ~uiW under G. L. c. 40, { 53, to enjoin the expen~tu~ of fun~ under that vo~, whether such expenditure was proper. Bi~ ~ s~m~, filed in ~he Superior Cour~ on Aught 13, 1926, under G. L. e. 40, { 53, by eleven taxable inhabitants of the town of Freetown. In the Superior Court, the s~t was heard by Hammed, upon the bill and answer. It appeared from the answer tha~ the to~ had no by-laws. Mter the action at the special meeting of March 30, 1926, described in the opinion, another special ~own meeting was called for April 23, 1927, ~he warrsn~ con,along articles substance (2) "To s~ if the town ~ vote to resdnd the action" taken ~t the pre~o~ special meeting; (3) to deter- ~ne how the sum voted at the protons special meeting ~o~d be raised; and (4 and 5) to see if the town wo~d vote ~o"raise and appropriate ~ha~ sum. Ar~icl~ 2 and 3 were de~e~ted and articles 4 and 5 were laid on the table. Other tasteful facts a~6~ed in the ples~ngs are stated h the opi~on. By order of the judge, a final decr~ entered dis~ing the bill. The plaint~s appeMed. ~. Rose~b~g & T. F. O'B~e~, for the pl~tiffs, sub~t~ed a brief. ~. H. Pot~, (W. B~ P~J, Jr., with h~,) for the defend- ants selectmen o~ ~reeto~ and another. E. L. Mar&ant, for the defendsn~ Canedy Co~tmcfion Company, sub~tted s brief. Rrna, C.J. T~s ]s $ bill in eq~ty by eleven ta~ayers to restrain an Mlegedillegsl ex, on&lure of money by ~he ~own of Freetown. The case was heard upon b~l ~d answer. The relevsn~ facts thus &sclosed are that at a ~eeial town meeting held on March 30, 1926, upon ~ warmn~ containing ~ appropriate article, it was voted that $12,500 be raised and appropriated for the construction of asphMt macadam on ~or~h M~in Street, in conjunction with eke sums con- tribu~ed by ~he S~ate and county, and of water bound mscs~m on Braley Road. On the record further is st of voters cbc cast in favm the 5loderal vote is nece'. declared The vote can be rais~ called for th 590. By th priated for appropriate year. It b, amount in G. L. c. 59, in the vote incur indeb' of statute were inapp] The decl article was to the fore, record of t one. Its p § 15, that proceeding declaratior the vote and the one side declared a: ator was matter of Townsend 549. Th{ of no bin~ deelaratio of the leg,' 180 Mass I¥[[M~S.] OGDEN V. SELECTMEN OF FREETOWN. 141 further is stated: "Vote taken by paper ballot and names of voters checked as ballots were east. The number of votes cast in favor of the article were 112; those opposed $9. As the Moderator nded that at a special meeting a two-thirds vote is necessary to make an appropriation, the article was declared lost." The vote as shown by the record was a valid vote. !~toney can be raised and appropriated at a special town meeting called for that purpose. Freeland v. Hastings, 10 Allen, 570, 590. By the vote as recorded money was raised and appro- priated for a general public use. The sum so raised and appropriated became a part o[ the general tax levy for the year. It became the duty of the assessors to include that amount in the sum to be assessed to defray town charges. G. L. c. 59, § 23. No mention was made in the article nor in the vote as to incurring indebtedness. No authoriW to incur indebtedness existed nnder the vote. Hence provisions of statute relative to a vote by two thirds of those votLng were inapplicable. The declaration by the moderator to the effect tha~ the article was lost was a mere expression of opinion by him as to the force and effect of a Vote stated in full terms on the record of the to~vn. The o~ce of moderator is an ancient one. Its powers are extensive. It is provided in G. L. c. 39, § 15, that the moderator "shall preside and regulate the proceedings, decide all questions of order and make public · declaration of all votes .... " The public declaration of the vote in question included the statement of the question and the announcement of the number of votes cast on the one side and on the other. That vote stood as cast and declared and carried its own legal implications. The moder- ator was not clothed wk]x any authority to interpret as matter of law the effect~ of the vote so declared, zldams v. Townsend Schoolhouse Build~ng Committee, 245 Mass. 543, 549. The statement of his opinion by the moderator was of no binding force. It amounted to no more than did a declaration of the town meeting itself expressive of its view of the legal effect of a vote already taken. Wheeler v. Carter, 180 Mass. 382, 388. 142 PERRY U, EASTERN MASS. STREET RAILWAY. [258 The circ~stance, that at the annum to~m meeting held ear, er ~ the same month articles in the warrant cal~ng for s~ar appropriations had been vote4 down, did not prevent a subsequent appropriation for the same purpose. The subject re[ated to specific repair of highways. Bigelow Worcest~, 169 Mass. 390, 393. L'Huili~r v. Fitchburg, 246 Mass. 349, 351. The vote at the first meeting did not the power of the tossm at the second mee~g. The principle of Wood v. 3fflton, 197 Mass. 531, has no pertinency to the facts 0f the case at bar. There is nothing ia the record to in,cate that lhe q~rements of G. L. c. 81, ~ 26, 27; Sts. 1921, c. 120; 19~2, c. 281, have not been or will not be met. ~%ether the State or county or town took the first step in the proceedings, is o[ no consequence in the ch. cmnstances here disclosed. It becomes unnecessary to consider whether there were laches on the part of the petitioners ia bringing s~fit. See C~n~s v. Lowe~, 2~6 Mass. 279, 285. BENJAMIN i~ERRY rS, ]~ASTERN MASSACHUSETTS ~TREET I~AI LV~A¥ CO~PAbVY- Suffolk. November 15, 1926. -- Januaw 4, 19~. ~esen~: R~a, C.J., B~rY, C~oss~, ~raCE, & S~so~, Neglige~e, Street railway, Motor vehicle. A~ the trial of an action of t~ against a street r~ilway company for damages to a motor truck which was run into by a street car of the defenc~nt approach~g from ~ke rear, there was evidence that the collision occ~d ~n a "d~zzling" day in December when the fendant's rMls were "wet and dirty, muddy nad slushy"; ~hat the truck had been parked on the right hand Mdc of the street as the street car was facing; that the plaintiff, who was drRqng it, knew of car tracks and knew that cars ran on them, "he did not s~ any car .... He . . · listened for a signal but ~d no~ hear one, and . . . he had put out his hand and blo~ his horn ; ~hat he at once ~urned the truck to the left to pass an automobile parked ahead of h~ ~nd doing the front wheels of the truck passed over the car tracks and the bath wheels were about to go over when thc steer cgr struck the near the h was ten o when abo~ was proce( saw the stop tho the motto contribute TOBT fo 1922. In tVhiting, J the close diet be ore was f[ defendant M,R.i plaintiff the result At the c motion fc jury foun on the fusal so The a. Chelsea, interseck point ru Chelsea' There tracks fo the outb of the c inbound way wa "drizzlb "wet al precede~ plaintiff 7. 1934. in thi~ ',v;t i";ce of by the for her 15. 1933, p r c,'nZc-es ty P~int ~testate's prior to a sudden pipes ~TL~ Off lw w:tter, 5he h~ ~mg. A ~llV "cold when ~he i dry: ~hc db',t Blass.] t'O~YXG v. WES~POaT. 597 be an adequate cause for the intestate's cold and con- tinuing disability; flint her condition, as disclosed by the hospital record which was in evidence, was causally re- lated to the chill and "the getting cold . . . both to the illness and the death," and that the getting chitled and the constant cold and disability were an adequate cause for the disability as well as for the death. The defendant's agent wen~ to the premises about once each week for the purpose of collecting rents. The defendant has not argued that the intestate was guilty of contributory negligence. Upon this evidence it was a question of fact for the jury to determine whether there was negligence on the part of the defendant in failing to use proper precautions to pre~ ven~ the bursting of the pipes and the resuking damage. Crasselli Dyestuff Corp. v. John Campbell dc Co. 259 Mass. 103. Gilroy v. Badger, 301 Mass. 494. If the jury found that the defendant was negligent in this respect, it was a question of fact for it to determine whether this negligence was the proximate cause of the in+~state's injuries, illne~ and death. Ogden v. Aspinwall, 220 Mass. 100, 103. DeFilippo's Case, 284 Mass. 531, 533, 534, and cases cited. Binns v. Blake, 289 Mass. 70. Wal- lace v. Ludwig, 292 Mass. 251, and cases cited. Exceptions sustained. Gsoao~ H. Youh'c & others vs. Towx o~' Wlssq'roaq' & others. Bristol. March 7, 1939.--April 11, 1939. Present: Fmu~, C.J., Dox~'~, Lumms, Qt,.4, & Ro~x~, JJ. Municipal Corporations, By-laws and ordinances, Town meeting, Finance committee. A by-law of a to,~, adopted pursuant to G. L. (Ter. Ed.) c. 39, § 16, in substance constituting a finauce committee to consider and report, "after giving one or more public hearings thereon," as to any article in a warrant for a town meeting concerning appropriation or expenditure of money or disposal of town property, was mereIy directory to the 598 ¥O~JNO v. WF~sTroU~- [302 ¢orami~tee as to t. he holding of a public hearing: and fl,e mere fact that the comraittee failed to hold sue}} a hearing did sot render invalid a vo~ of the ~own making an appropria[ion. PgTITIOg, filed in the Superior Court on September 28, 1938, and afterwards amended. Hearings were by Hanif~, J. The petitioners appealed from an interlocutory decree sust~n[ng a demurrer, and from a ~M decree dismissing the petition "after an inter- locu~ory decree sus~M~ng the demurrer." The ease w~ submitted on briefs. ~. H. Young, for the petitioners. A. E. Sea,rave, for the respondents. gonad, J. This pe;ition in equity, brought under G. L. (Ter. gd.) c. 40, { 53; by certain taxpayers of the town of Westport, seeks to restrain the expenditure of money, ~der a vote ~aken on Au~s~ 15, 1938, a~ a special town mee~g, for ~he purpose of securing ~ site and construc[~g a municipal office buildhtg, because the matter was no~ properly before the ~own mee~g by reason of the faille ~ the finance committee to hold a public hearhg on the proposed expenditure as is requked by a bydaw of the ~own. The pe~i~ioners appealed from an ~terloeutory decree sustaining g demurrer and from a final decree dLs- ~sshg ~he petition. The warran~ for the speciM meet~g contahed an a~icle relative to ~he raising of funds for the proposed bu~d~g and another article concernhg an offer by the United States ~o ~an~ ~o the to~ a certa~ percentage of ~he cos~ of said buHdhg. The meeting was eaIled for no other pur- poses. ~e town, s~ce 1929, has had ~ finance committee, by virtue of what is now G. L. (Ter. Ed.) c. 39, { 16. The by-law provid~g for the creation and ma~tenance of such committee, ~ so far as martial, reads as follows: "~en- ever ~he warran~ for any to~ meet~g contains an article or articles under which an appropriation or expendit~e of money or the disposal of any property of ;he town may - be made, the finance committee shall consider said ar~icles after ~ving one or more public hearings thereon and shall report its recommendations to the town meeting." The single conte: could not r~ mittee did tended that that it did right to exa the record ~ the allegati~ hag and not Montgomeq operative Br The stat~ having a v; all other tr ment and c m[ttees, wi for the pm the town." commlttee the scope ~ rants for t~ expenditur, the town ~ provision t mittee. V merely in( mittee am because ti the by-law The pm ascertain ! expenditm assistance and inves intelligent meeting. prevent h voters. 'I capacity. YOUNG V. WESTPORT. 599 single contention made by the petitioners is that the town could not make an appropriation because the finance com- mittee did not grant any public hearing. It is not con- tended that this committee did not consider the matter, or that it did not make a report to the town. We have no right to examine the st~,tement of agreed facts contained in the record as we are concerned only with the sufficiency of the allegations in the petition, which is a question of plead- ing and not of evidence. Pond v. Simpson, 251 Mass. 325. Montgomery v. Richards, 275 Mass. 553, 555. Security Co- operative Bank v. McMahon, 294 Mass. 399. The statute, G. L. (Ter. Ed.) c. 39, § 16, required towns having a valuation over a certain amount, and authorized all other towns, to provide by a by-law "for the appoint- ment and duties of appropriation, advisory or finance com- mittees, who shall consider any or all municipal questions for the purpose of making reports or recommendations to the town." The by-law in question did not empower the committee to pass upon all municipal questions but limited the sco~e of its activities to articles appearing in the war- rants for town meetings "under which an appropriation or expenditure of money or the disposal of any property of the town may be made." The enabling statute makes no provision for the holding of public hearings by the com- mittee. We need not consider whether such hearings are merely incidental to the proper functioning of the com- mittee and so included within the terms of the statute, because the respondents do not challenge the validity of the bydaw. The purpose of the by-law was to enable the citizen to ascertain the nature of and necessity for the contemplated expenditure of the funds of the~t0wn;, to secure the aid and assistance of a report of a committee, which had studied and investigated the matter, and so permit him to vote intelligently when the article should come before the town meeting. The report of the committee would also tend to prevent hasty and iii-advised action upon thc part of the ~-oters. The committee, however, acted only in an advisory capacity. The citizens were not requh'ed to accept [ts 600 ¥ov.~o v. W~sTroRT. [302 report or to adopt its recommendations. They could en- tirely ignore the report or heed such parts as merited their respect and consideration. In participating in the town meeting they were 2ot restricted or limited by the conduct of the committee. Furthermore, the matters for considera- tion were properly before the meeting by virtue of the war- rant, and the failure of the committee through inadvertence or inability to hold a public hearing did not prevent the voters from deeming the articles contained in the warrant. The instant by-law in form and in substance was directory to the finance committee and was not mandatory upon the town. The omission of a public hearing by the finance committee did not invalidate the action taken at the town meeting. Bennett v. New Bedford, 110 _Mass. 433. Holt v. City Council of Somerville, 127 Mass. 408. Chandler v. Lawrence, 128 Mass. 213. Sinclair v. 3Iayor of Fail River, 198 Mass. 248. Choate v. Sharon, 259 Mass. 478. Wil- son v. Brouder, 291 Mass. 389. Colema, v. Louison, 296 Mass. 210. Groton & Sto~wiugton Tractioa Co. v. Groton, -:-115 Conn. 15t. Doubtless, the town could have enacted a by-law that would have prevented any action being con- sidered in a town meeting, unless and until some commit- tee had considered the nm[ter or had reported in favor of the measure or had furnished the town ~dth an estimate of the cost. Such action would be a condition precedent to action by the town meeting. A by-law or order ex- pressly prohibiting an appropriation except upon compli- ance with certain conditions has the force of law. Loring v. Westwood, 238 Mass. 9. See Butt v. Municipal Coun- cil of Taunton, 272 Mass. 130, 133. These ea~ses are dis- tinguishable by reason of the difference between the by-law in the first' ease or the order in the second case, anti the by4aw in the case ~t bar. Both decrees were righg and ~re affirmed. Ordered accordinglY. Mass.~ l>urgLll the Rep{ Ot~om 1939. directed gence on There w: T.B. tions di~ This is Court o[ exce~ in each o~es~ new tri~ quate, the cruse agai~mt the law Supedoi ordered, Jacob G motions court, before t entry exceptic perior M. C~ Badg~ overrul~ dre~ed determi