(dissenting). There is no dispute that on October 27, 1966, the Westport planning and zoning commission designated 81.86 acres of land owned by the plaintiff as open space pursuant to the provisions of § 12-107e of the General Statutes.1 In the trial court, the plaintiff claimed that the Westport assessor was obligated, as a matter of law, to continue its assessment of the entire acreage, designated until that time as open space by the planning commission, as open space. This court now rejects the plaintiff’s claim, employing a rationale and reaching a result with which I cannot agree.
Under § 12-107e, the planning commission may, in preparing a plan of development, designate areas upon the plan which it recommends for tax treatment as open space land. The statute, in no uncertain terms, mandates that land designated as open space “shall” be classified and assessed as open *305space, if the assessor determines that there has been no change in the essential character of the land adversely affecting its qualities as open space land. General Statutes § 12-107e (b). In the present case, the majority concludes that a planning commission may alter its initial designation of open space areas, a conclusion with which I agree, under proper circumstances. The majority, however, apparently goes on to hold that the plaintiff’s land was, in fact, redesignated to limit open space designation to seventy acres, by the adoption of “Open Space Policies and Procedures in 1971,” which, it is held, superseded the initial 1966 open space designation of the plaintiff’s 81.86 acres and that, in any event, the plaintiff waived its right to open space designation. These conclusions are, I believe, erroneous in law and inconsistent with the open space statutory scheme and certain of our cases.
Although § 12-107e is silent as to the procedure for changing an initial open space designation, the power to redesignate initially qualified open space land ought to be no more permissive than the statutory restrictions on reclassification by an assessor. Reclassification by an assessor is limited to situations where the land initially designated as open space has undergone a change affecting its character as open space. The record indicates that neither the town nor the defendant board, after initially determining that the plaintiff’s land was qualified for open space tax treatment, at any time decided that the land had undergone any essential change. Yet, as of at least 1969, the town treated for tax purposes only seventy acres of the plaintiff’s land as open space. I can conceive of no cogent reason for allowing a town to alter its tax treatment of otherwise qualified open space land in the absence *306of evidence that the character of the land, which is, after all, the factor upon which open space treatment is predicated, has significantly changed since the initial open space designation. Thus, I would conclude that the town lacked authority to treat only seventy acres of the plaintiff’s land as open space, absent a change in the conditions of the land affecting its character as open space.
More importantly, even assuming that the planning commission’s authority to redesignate open space land is not circumscribed by the same limitations placed upon the authority of an assessor to do so, the record discloses that there was, in fact, no redesignation of the plaintiff’s land for tax purposes. The record indicates only that in 1971, the town adopted “open space policies and procedures.” The record does not demonstrate that after the 1966 designation of the plaintiff’s land as open space on the town plan of development; see General Statutes § 12-107e (a); the town amended its plan of development to reflect that only seventy of the plaintiff’s acres were designated as open space. If an initial open space designation is required by § 12-107e (a) to be reflected upon the town plan of development, I believe that a change in the designation must similarly be reflected on the plan, after a hearing at which the affected owner could be heard on the proposed redesignation. Although the record discloses that the planning and zoning commission noticed a hearing to review the plaintiff’s open space designation, there is no evidence that the hearing ever took place. Thus, the adoption of the 1971 policies is treated by the majority as an “implicit redesignation” of the plaintiff’s property, which result is not only inconsistent with the statutory scheme; cf. Torrington Water Co. v. Board of Tax Review, 168 *307Conn. 319, 362 A.2d 866; bnt raises serious questions concerning the plaintiff’s right as a property owner to have a meaningful opportunity to be heard on the change in the tax treatment of its property. See Roundhouse Construction Corporation v. Telesco Masons Supplies Co., 168 Conn. 371, 376, 362 A.2d 778; see generally, Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 572-73, 409 A.2d 1020. It is not, as the majority holds, a “question of fact” whether more than seventy acres qualified for open space designation. After the initial designation, there being no change in the land’s character or use, no hearing on redesignation and no amendment to the plan of development, the plaintiff was entitled to continued open space designation as a matter of law.
Neither can I agree with the majority’s discussion of the waiver issue. Although from 1969 to 1971 only seventy acres were treated as open space, the only years in question on this appeal are 1972-1975. The statute governing waiver, § 12-107e(c),2 clearly indicates that a failure to apply for classification in one year is a waiver only as to that year’s assessment list. The statute, first, does not address waiver in relation to the town’s designation of land as open space, but merely speaks to an assessor’s classification of land as such. Second, different assessment lists in separate tax years create entirely distinct situations as to a property owner’s entitlement to open space designation. Therefore, any waiver as to *308the years 1969-1971 is, as a matter of law, irrelevant to the plaintiff’s right to open space designation from 1972-1975.
I would find error in the trial court’s determination of the first of the plaintiff’s claims of law alone and remand the case for further proceedings.
“[General Statutes] Sec. 12-107e. classification of land as open space land, (a) The planning commission of any municipality in preparing a plan of development for such, municipality may designate upon such plan areas which it recommends for preservation as areas of open space land. Land included in any area so designated upon such plan as finally adopted may be classified as open space land for purposes of property taxation if there has been no change in the use of such area which has adversely affected its essential character as an area of open space land between the date of the adoption of such plan and the date of such classification. . . .”
“[General Statutes] Sec. 12-107e. . . . (c) Failure to file an application for classification of land as open space land within the time limit prescribed in subsection (b) and in the manner and form prescribed in subsection (b) shall be considered a waiver of the right to such classification on such assessment list. . . (Emphasis added.)