Berger v. Town of Wellesley
| Decision Date | 11 May 1956 |
| Citation | 134 N.E.2d 436,334 Mass. 193 |
| Parties | Henry E. BERGER and others v. TOWN OF WELLESLEY and another. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Albert Auburn, Wellesley, Richard Bancroft, for plaintiffs.
William R. Cook, Boston, for defendants.
Before QUA, C. J., and WILKINS, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.
This is a suit in equity under G.L. (Ter.Ed.) c. 231A, as added by St.1945, c. 582 by eleven residents of the town of Wellesley to obtain a binding declaration of the right of the town under its zoning by-law to lease certain land from the defendant Helen L. Fraser for the purpose of maintaining a municipal parking lot for automobiles. The premises are located partly in a single residence district and partly in a general residence district as designated and established by the zoning by-law. This by-law, at the time the bill was filed, provided in § 2 that in a single residence district premises shall not be altered or used for any purpose except those specified, one such purpose being 'Public School or other public use' (2 B 3), and in § 3 that in a general residence district premises shall not be altered or used for any purpose except those specified, including 'Any purpose authorized in the single residence districts' (3 B 1). In 1950 the town amended its zoning by-law, which had been passed in 1925, by establishing additional districts designated single residence districts A and general residence districts A in which, in addition to the uses permitted in single and general residence districts, premises might be used for a 'Lot for the temporary parking of motor vehicles.' On June 28, 1955, the town voted to authorize its selectmen to lease from the defendant Fraser premises on the southerly side of Church street between Abbott and Waban streets for a municipal parking lot 'the rent for which shall be paid exclusively from the receipts from parking meters to be installed thereon, the said lease to contain such other provisions as the selectmen may determine to be in the best interests of the town.'
The plaintiffs allege controversies with Fraser in respect to her right to alter her premises for the purpose of the lease and with the town over its right under the by-law to use the premises when leased for a municipal parking lot. Their contention that the vote of June 28, because of lack of specific instructions to the selectmen, constituted an illegal delegation of power, is no longer at issue because of a vote of the town passed on September 26 whereby the selectmen were again authorized to enter into the lease and were given specific instructions as to its terms. At the hearing on the bill the judge found that no issue is now raised as to the form of the September vote. He ruled that the words 'other public use' as...
To continue reading
Request your trial
-
Pierce v. Town of Wellesley
...parking lot' were added by the amendment, largely because of the decision in the Superior Court reviewed in Berger v. Town of Wellesley, 334 Mass. 193, 195, 124 N.E.2d 436. The Berger case involved a bill for declaratory relief brought to determine the right of the town, under its then exis......
-
Woods v. City of Newton
...580, and NOONAN V. MOULTON, MASS., 204 N.E.2D 897,E the issue of a required controversy was not discussed. In Berger v. Town of Wellesley, 334 Mass. 193, 195, 134 N.E.2d 436, 437, the court said, 'It * * * now appears that the controversies which the plaintiffs alleged * * * have become moo......
-
Vasilakis v. City of Haverhill
...334 Mass. 658, 662, 138 N.E.2d 206. Compare Povey v. School Committee of Medford, 333 Mass. 70, 127 N.E.2d 925; Berger v. Town of Wellesley, 334 Mass. 193, 195, 134 N.E.2d 436, where the bills were properly ordered dismissed. The decree is reversed. A declaratory decree is to enter in the S......
-
Bettigole v. City Council of Springfield
...794; Reilly v. School Comm. of Boston, supra. Costs of this appeal are not to be taxed in favor of either party. Berger v. Wellesley, 334 Mass. 193, 195, 134 N.E.2d 436. So a. Mass.Adv.Sh. (1972) 1845.b. Mass.Adv.Sh. (1973) 599, 601-602. ...