County Com'rs of Bristol v. Conservation Commission of Dartmouth

• Decision Date: 21 May 1980
• Citation: 380 Mass. 706,405 N.E.2d 637
• Parties: COUNTY COMMISSIONERS OF BRISTOL v. CONSERVATION COMMISSION OF DARTMOUTH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 637

405 N.E.2d 637

380 Mass. 706

COUNTY COMMISSIONERS OF BRISTOL v. CONSERVATION COMMISSION OF DARTMOUTH et al.

Supreme Judicial Court of Massachusetts, Bristol.

Argued March 4, 1980.

Decided May 21, 1980.

James M. Cronin, New Bedford (Leonard E. Perry, New Bedford, with him), for defendants.

William F. Long, Jr., Fall River, for plaintiffs.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

HENNESSEY, Chief Justice.

In 1973 the Legislature authorized the County Commissioners of Bristol County to construct a new jail and to acquire the necessary land by purchase or eminent domain. See St. 1973, c. 412. ¹ As a result of this legislative mandate and after appropriate study and investigation, the County Commissioners devised a plan to build the jail within the confines of the town of Dartmouth in an area of the town zoned for limited industrial use. ² The County Commissioners applied, in compliance with the requirements of G.L. c. 131, § 40, to the Conservation Commission of the town of Dartmouth for a determination of what conditions, if any, were to be applied to the construction of the proposed new jail in order to respond to specified environmental considerations. The Conservation Commission determined that the proposed site fell within the scope of G.L. c. 131, § 40, and that the County Commissioners were therefore required to file with the Conservation Commission a notice of intent to engage in construction activity on the land.

The notice of intent was submitted in the recommended form, including complete environmental data along with the $25 filing fee. General Laws c. 131, § 40, provides that "(n)o such notice shall be sent before all . . .variancesITE, 380 Mass. 708>>variances . . . required by local by-law with respect to the proposed activity, which are obtainable at the time of such notice, have been obtained, except that such notice may be sent, at the option of the applicant, after the filing of an application for said . . . variances . . . ." The Conservation Commission notified the County Commissioners that their notice could not be accepted until an application had been made for a zoning variance from the Dartmouth zoning board of appeals.

The plaintiff County Commissioners of Bristol then filed this action seeking a declaratory judgment that the proposed county use gave the land in question immunity from the Dartmouth zoning by-law. After a hearing, the Superior Court issued a declaratory judgment that the land and any structures to be erected thereon by the county are not subject to the municipal zoning by-law of the town of Dartmouth. The defendant Conservation Commissioners of Dartmouth filed a motion to alter or amend judgment under Mass.R.Civ.P. 59, 365 Mass. 827 (1974), claiming that a presumption of county immunity from municipal zoning asserted as the basis of decision contravened the Home Rule Amendment. ³ The Superior Court denied this motion without a hearing. The defendants appealed.

There is no error. We therefore sustain the order, ruling and judgment of the Superior Court that the land in Dartmouth in which the plaintiff County Commissioners seek to have a new jail constructed, and any structures to be erected thereon, are not subject to the municipal zoning by-law of the town of Dartmouth.

The general rule in this and other jurisdictions is that "a State is immune from municipal zoning regulations, absent statutory provision to the contrary." Medford v. Marinucci Bros. & Co., 344 Mass. 50, 56, 181 N.E.2d 584, 588 (1962), and cases cited. This rule has its origins in Teasdale v. Newell & Snowling Constr. Co., 192 Mass. 440, 78 N.E. 504 (1906). In that case the metropolitan park commissioners had made a contract with the defendant contractor for grading and other work on land in Quincy which they had taken for park purposes. The commissioners authorized the defendant to build a temporary stable on the property to accommodate the large number of horses used in the project. The health laws of the municipality prohibited such a stable. We held the health laws inapplicable under the circumstances, reasoning that a "general law made for the regulation of citizens must be held subordinate to this special statute regulating the use of the property of the state unless there is express provision to the contrary. It is not to be presumed that the Legislature intended to give to the local licensing board the authority to thwart the reasonably necessary efforts of the park commissioners to perform their duty as agents of the State." Id. at 443, 78 N.E. at 505.

The same reasoning which was applied to exempt the metropolitan park commissioners from the Quincy health laws in Teasdale was applied to exempt the commissioners of public works from a Medford zoning ordinance in Medford v. Marinucci Bros. & Co., 344 Mass. 50, 181 N.E.2d 584 (1962). In that case, the Department of Public Works had made a contract with the defendant contractor for building a section of an interstate highway. The defendant received permission from the chief engineer of the Department of Public Works to construct a railroad loading area at a particular location in the city of Medford which was zoned for single residences. The city sued to enjoin this use of the land under the authority of its zoning ordinance. In ruling against the city we stated that, "(w)e cannot conclude that by enacting the Zoning Enabling Act the Legislature intended to authorize a municipality to thwart the Commonwealth in carrying out the functions of government." Id. at 57, 181 N.E.2d at 588.

We reached the same conclusion in Village on the Hill, Inc. v. Massachusetts Turnpike Auth., 348 Mass. 107, 202 N.E.2d 602 (1964). In that case the Massachusetts Turnpike Authority had taken land by eminent domain from a private corporation, Rivett Lathe & Grinder, Inc. (Rivett), in connection with extending the Massachusetts Turnpike. The authority then agreed to sell to Rivett another lot on which Rivett could relocate its plant. In accordance with its purchase and sale agreement with the authority, Rivett entered the property and began construction of its new plant before title had been conveyed from the authority to Rivett. The plaintiff petitioned for a writ of mandamus to compel the building commissioner of Boston to enforce the Boston zoning law, which placed part of the land upon which the factory building was being constructed in a general residence district.

At the time of the trial legal title to the premises, including the building being constructed there by Rivett, remained in the authority. In concluding that this property was not subject to the Boston zoning regulation we reasoned as follows: "Although the property held by the authority is eventually to belong to the Commonwealth (see St. 1952, c. 354, § 17), it is not now owned by the Commonwealth. Nevertheless, the Legislature . . . made the authority sufficiently governmental in character so that the actual construction and operation of the turnpike, its essential 'government function,' and action reasonably related to that function, should not be prevented by a zoning statute applicable to one municipality or by a local zoning ordinance or by-law." Village on the Hill, Inc. v. Massachusetts Turnpike Auth., supra at 118, 202 N.E.2d at 611.

As these cases demonstrate, an entity or agency created by the Massachusetts Legislature is immune from municipal zoning regulations (absent statutory provision to the contrary) at least insofar as that entity or agency is performing an essential governmental function. ⁴ It is clear that a county stands in the same position as the other legislatively created entities discussed above for purposes of applying this rule. Like the Massachusetts Turnpike Authority, which we described in Massachusetts Turnpike Auth. v. Commonwealth, 347 Mass. 524, 525, 199 N.E.2d 175, 176 (1964), as "a body politic and corporate . . . and . . . a public instrumentality performing an essential governmental function," counties also are "organized by the General Court for the convenient administration of some parts of government. They are bodies politic and corporate. They exist solely for the public welfare." County of Middlesex v. Waltham, 278 Mass. 514, 516, 180 N.E. 318, 319 (1932). "They may be changed at the will of the Legislature, and the character and extent of the sovereign powers to be exercised through them are subject to modification in like manner, according to legislative judgment of the requirement of the interests of the public." ⁵ Boston v. Chelsea, 212 Mass. 127, 129, 98 N.E. 620, 620-21 (1912). See also G.L. c. 34, § 1. What the plaintiff County Commissioners seek to accomplish here is clearly the execution of an essential governmental function. General Laws c. 34, § 3, as amended through St. 1978, c. 478, § 17, provides in part specifically that "(e)ach county shall provide suitable jails, houses of correction, fireproof offices and other public buildings necessary for its use." Therefore, our reading of Massachusetts case law leads to the conclusion that the Dartmouth zoning by-law is inapplicable in this circumstance.

The defendant nevertheless argues that a proper reading of the pertinent sections of the zoning act (G.L. c. 40A) leads to the contrary conclusion. The defendant directs us to § 3 of G.L. c. 40A (added by St. 1975, c. 808, and amended by St. 1977, c. 860) which provides in part that, "(n)o zoning ordinance or by-law shall . . . prohibit, regulate or restrict the use of land or structures for religious purposes or for educational purposes on land owned or leased by the commonwealth or any of its agencies, subdivisions or bodies politic or by a religious sect or denomination, or by a nonprofit educational corporation; provided, however, that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area,...