Burnham v. Board of Appeals of Gloucester

Decision Date19 September 1955
Citation333 Mass. 114,128 N.E.2d 772
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesWilbur Herbert BURNHAM et al. v. BOARD OF APPEALS OF GLOUCESTER.

Edward B. Hanify, Boston, John R. Cahill, Jr., Gloucester, for plaintiffs.

Carlton W. Wonson, City Sol., Gloucester and Anthony N. Compagnone, Milford, for defendants.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

SPALDING, Justice.

Karl A. and Jane C. Muller (hereinafter called the applicants) applied to the board of appeals of the city of Gloucester (hereinafter called the board) for a permit to build a motel in a single residence district in that city. Their application for a permit was under an amendment to the city's zoning ordinance. The amendment, which was passed on November 23, 1955, did not rezone any areas, but enlarged the definition of a single residence district so as to include motels. 1 The amendment defined 'motel' as 'structure or structures containing dwelling units of one or more rooms, separated or attached to each other, and intended to be rented for brief periods of time for the accommodation of travellers or tourists * * *.' Thus the effect of the amendment was that motels may be constructed and operated in any single residence district.

In order to construct and operate a motel a permit to do so must be obtained from the board of appeals which may impose such conditions as it deems necessary for the protection of the public. The amendment further provides for notice and public hearing, and evidence of compliance by the applicant with the requirements of the departments of public health and public safety and other agencies concerned. 'No permit [for a motel] shall be granted by the Board of Appeals without considering the effects upon the neighborhood and the City at large.'

The board complied with all the requirements of the zoning ordinance and on April 5, 1954, rendered a decision granting a permit to the applicants. From the decision of the board the plaintiffs (owners of property in the area involved) appealed to the Superior Court under G.L. (Ter.Ed.) c. 40, § 30, as appearing in St.1933, c. 269, § 1, as amended. The applicants were allowed to intervene. The judge made comprehensive findings of facts which he stated were all of the material facts, and ordered a decree to be entered that the amended ordinance under which the board granted the permit is invalid, that the decision of the board is annulled, and that the permit granted thereunder is invalid. From a decree entered accordingly the board appealed. The evidence is not reported.

The judge found that the purpose for the adoption of the amendment was to further the interests of travellers and tourists as evidenced by the definition of motel in the amendment and that it clearly was not enacted to promote 'the health, safety, convenience, morals or welfare of the community.' Admittedly, one of the objects of zoning is to protect, so far as possible, property owners in the more restricted districts from activities and uses permitted in the less restricted areas. But complete separation of uses is not always feasible or desirable and it is for this reason that the zoning statutes have permitted a certain amount of flexibility with respect to zoning ordinances and their application. Thus the board of appeals created by § 30 is authorized to 'hear and decide requests for special permits' and to grant variances in certain circumstances. Where a local legislative body of a city enacts an ordinance permitting motels to be constructed and operated in a single residence district, as here, can a court say that this is in excess of the authority granted by § 25 of the enabling statute to promote the 'health, safety, convenience, morals or welfare of its inhabitants'? We are of opinion that this question must be answered in the negative.

As to the wisdom of such a policy there may be differing opinions. But the fact that the question is debatable does not empower a court to substitute its judgment for that of the legislative body. Simon v. Needham, 311 Mass. 560, 564, 42 N.E.2d 516, 141 A.L.R. 688. Zoning has always been treated as a local matter and much weight must be accorded to the judgment of the local legislative body, since it is familiar with local conditions. Caires v. Building Commissioner of Hingham, 323 Mass. 589, 83 N.E.2d 550; Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 557-558, 120 N.E.2d 916. As we said in the Caires case, 'Every presumption is to be made in favor of the by-law, and its enforcement will not be refused unles it is shown beyond reasonable doubt that it conflicts with the Constitution or the enabling statute.' 323 Mass. at page 594, 83 N.E.2d at page 554. We are of opinion that it cannot be said that the amendment here challenged was unreasonable or capricious or beyond the power conferred on the municipal council by the enabling act. Compare Smith v. Board of Appeals of Salem, 313 Mass. 622, 48 N.E.2d 620.

The authority given to the board by the amendment to grant permits for motels was within the powers which could be conferred on boards of appeals under § 30. The board in this case was granting a special permit and § 30 specifically provides for such permits. 1 For decisions where special permits were involved see Lambert v. Board of Appeals of Lowell, 295 Mass. 224, 3 N.E.2d 784; Building Commissioner of Medford v. C. & H. Co., 319 Mass. 273, 280-281, 65 N.E.2d 537; Carson v. Board of Appeals of Lexington, 321 Mass. 649, 75 N.E.2d 116; Everpure Ice Mfg. Co. Inc., v. Board of Appeals of Lawrence, 324 Mass. 433, 86 N.E.2d 906; Sellors v. Concord, 329 Mass. 259, 263-264, 107 N.E.2d 784.

The plaintiffs earnestly argue that the amendment is at variance with our decision in Smith v. Board of Appeals of Fall River, 319 Mass. 341, 65 N.E.2d 547. The ordinance in that case was struck down as being an evasion of the strict requirements for variances and as giving to the board of appeals what was in effect a roving commission to engage in spot zoning. But we are of opinion that that case is not controlling. The amendment under consideration specifically authorizes motels to be constructed and operated in any district provided permission to do so is obtained from the board. Therefore the board by granting a permit is not engaged in rezoning an area to permit an excluded use. Nor is it engaged in varying the terms of the ordinance.

The next question is whether the amendment sets up a sufficient standard to guide the board in granting or withholding permits. The only standard, other than building and land requirements, is that 'No permit shall be granted * * * without considering the effects upon the neighborhood and the City at large.' In a somewhat analogous situation where a town by-law prohibited persons from removing soil, loam, sand, or gravel unless such...

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    ...to an administrative agency and creating less definite standards than those provided by § 20. 20 See Burnham v. Board of Appeals of Gloucester, 333 Mass. 114, 128 N.E.2d 772; MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 255 N.E.2d 347. These zoning cases support our conclusion t......
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