Crall v. City of Leominster

• Citation: 284 N.E.2d 610,362 Mass. 95
• Parties: Hugh C. CRALL et al. v. CITY OF LEOMINSTER et. al.
• Decision Date: 05 June 1972
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 610

284 N.E.2d 610

362 Mass. 95

Hugh C. CRALL et al. v. CITY OF LEOMINSTER et. al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Oct. 7, 1971.

Decided June 5, 1972.

Julian J. D'Agostine, West Acton (Charles G. Kadison, Jr., Boston, with him), for petitioners.

Henry P. Grady, Worcester (John M. O'Connor, Fitchburg, with him), for respondents.

Before TAURO, C.J., and CUTTER, REARDON, QUIRICO and HENNESSEY, JJ. QUIRICO, Justice.

This is a petition brought under G.L. c. 240, § 14A, inserted by St.1934, c. 263, § 2, and entered in the Land Court under G.L. c. 185, § 1 (j 1/2), inserted by St.1934, c. 263, § 1, seeking a determination as to the validity of an amendment to the zoning ordinance of the city of Leominster. The amendment changed the classification of a tract of land consisting of approximately 270 acres (locus) from 'Rural Residence and Agricultural' to 'Industrial.' The petitioners are thirty persons who own land either abutting the locus or located in its vicinity. The respondents are the city, its mayor, its building inspector, the members of its city council, five persons who are the owners of portions of the locus, and two corporations. ¹

The petitioners contend that the amendment is invalid for three reasons. They are: (1) the notices published by the planning board and the city council of the hearings held by them on the proposed amendment failed to comply with the requirements of G.L. c. 40A, § 6, inserted by St.1954, c. 368, § 2, and amended through St.1968, c. 194, (2) the reclassification of the locus 'constitutes spot zoning,' and (3) 'one or more City Councilors may have violated . . . (G.L. c. 268A) in voting on the rezoning petition.' The judge of the Land Court decided against the petitioners on the first two grounds. At the start of the trial he allowed a motion of the respondents to strike from the petition all references to G.L. c. 268A, thus eliminating the third ground. The case is before us on the petitioners' exceptions to these rulings.

The case was submitted to the judge of the Land Court for decision on the basis of (a) several written and oral agreements on certain but not all of the facts, (b) numerous exhibits including copies of petitions, published notices, records of proceedings before the planning board and city council, votes, maps, photographs and ordinances, and (c) the testimony of witnesses. All of the testimony and many of the exhibits applied solely to the issue of spot zoning. At the close of the evidence the judge took a view at the request of the parties.

Notices of Public Hearings. General Laws c. 40A, § 6, inserted by St.1954, c. 368, § 2, and amended through St.1968, c. 194, prescribes in detail a number of steps prerequisite to the adoption or amendment of zoning ordinances or by-laws. Before the adoption or amendment of such an ordinance by a city there must be a public hearing before the planning board and then a second hearing before 'the city council or a committee designated or appointed for the purpose.' As to both such hearings the statute requires that 'notice of the time and place of such hearing (before the planning board or) before the city council or committee thereof and of the subject matter, sufficient for identification, shall be published in a newspaper of general circulation in the city once in each of two successive weeks, the first publication to be not less than fourteen days before the day of the hearing.'

The planning board published notices in the Leominster Enterprise on Saturday, June 14, 1969, and Monday, June 16, 1969, that it would hold a public hearing on the proposed amendment on June 30, 1969. The city council published notices in the same newspaper on Thursday, August 14, 1969, and Monday, August 18, 1969, that it would hold a similar hearing on September 4, 1969. Both public hearings were held on the dates scheduled. The petitioners contend that because the first and second published notices for each of the two public hearings were separated by less than one full week, they did not constitute notice 'in each of two successive weeks' within the meaning of § 6. The judge ruled against the petitioners on this contention. There was no error.

Admittedly the first notice for each hearing was published more than fourteen days before the hearing, and as to each hearing the two notices thereof were published in different calendar weeks. Although we have a statute (G.L. c. 4, § 7, Nineteenth), providing that "Month' shall mean a calendar month . . . and 'year', a calendar year,' we have no such statute defining the word 'week.' Section 7 simply enacted the definition which several decisions of this court had previously given to the word 'month.' Churchill v. Merchants' Bank, 19 Pick. 532, 535. See Hunt v. Holden, 2 Mass. 168, 170, footnote; Avery v. Pixley, 4 Mass. 460, 461.

In Bachelor v. Bachelor, 1 Mass. 256, it was held that the requirement that an order of notice be published in a newspaper 'three weeks successively' was satisfied by publication 'first, in the paper of Saturday, June 30th--secondly, Saturday, July 7th, and thirdly, Wednesday, July 11th.' In that case, as in the present case, the sufficiency of the publication was questioned 'because there was not an interval of a week between . . . (two of the) publications.' One of the rules prescribed by G.L. c. 4, § 6, Third, for construing statutes is that '(w)ords and phrases shall be construed according to the common and approved usage of the language.' With this statute and the Bachelor decision in mind, we hold that the words 'two successive weeks' as used in G.L. c. 40A, § 6, mean two successive calendar weeks. The notices of the planning board and city council hearings met the statutory requirement in this regard.

The petitioners also contend that the notices published by the planning board failed to comply with the requirement of G.L. c. 40A, § 6, that they specify 'the subject matter, sufficient for identification,' on which the hearing was to be held. ² The judge held that '(t)he notices . . . sufficed to alert interested parties with regard to the general area involved in the proposed zoning change.' There was no error.

The planning board notices described the land sought to be rezoned as 'the easterly end of the city, the vicinity of Rte. 2 and the town line of Lancaster--Lunenburg, more fully described on petition and plan on file in the Planning Board office.' The petition and plan which were thus incorporated in the notice contained a detailed description of the locus by metes and bounds and were available for examination by interested persons. See Rathkopf, The Law of Zoning and Planning (3d ed.) c. 8, § 2, at 8--25, 8--26 and n. 29, and Supplement thereto, for a discussion of this practice of incorporation reference.

The fact that the notices of the hearings before the city council repeated the detailed description of the locus as contained in the petition does not make the planning board notices insufficient. A number of our decisions have recognized that the function of the planning board is 'preliminary and advisory only,' that the board can 'finally settle nothing,' Burlington v. Dunn, 318 Mass. 216, 218, 61 N.E.2d 243, cert. den. sub nom. Dunn v. Burlington, 326 U.S. 739, 66 S.Ct. 51, 90 L.Ed. 441, and that regardless of the action of the board on such a petition, interested parties will have a further opportunity to be heard at a town meeting or at a public hearing held by the city council of a city or a committee thereof. HALLENBORG V. TOWN CLERK OF BILLERICA, MASS., 275 N.E.2D 525^A and cases cited.

Because we hold that the published notices of the hearing before the planning board satisfied the requirements of G.L. c. 40A, § 6, we do not reach the respondents' contentions that the petitioners either admitted the validity of the notices or waived their invalidity by participating in the hearings. See Pitman v. Medford, 312 Mass. 618, 623, 45 N.E.2d 973. Compare Gallagher v. Board of Appeals of Falmouth, 351 Mass. 410, 414--415, 221 N.E.2d 756.

Spot Zoning. The petitioners contend that the reclassification of the locus constitutes spot zoning and therefore violates G.L. c. 40A, § 2, inserted by St.1954, c. 368, § 2, as amended through St.1959, c. 607, § 1. Section 2 states the purposes and objectives for which zoning ordinances and by-laws may be adopted. This issue is argued on the basis of the following statement in the petitioners' outline bill of exceptions: 'Exception No. 1. Petitioners except under the provisions of Land Court Rule 6, to the decision of . . . (the judge) dated July 13, 1970, for the reason that, on all of the evidence, a decision in favor of petitioners is required as a matter of law.' ³

This is another in a seemingly unending line of cases which have been reaching this court since shortly after the enactment of St.1920, c. 601 (see now G.L. c. 40A), authorizing municipalities to adopt zoning regulations, and in which we have been asked to declare such regulations or amendments thereto invalid as beyond the scope of the enabling statute. The number of such cases seems disproportionately large in relation to the very narrow scope of the review available before this court on matters other than compliance with the statutory procedural requirements for municipal adoption or amendment of such regulations.

The first decisions by this court on this subject were by four opinions of Chief Justice Rugg on October 16, 1924, in the cases of Inspector of Bldgs. of Lowell v. Stoklosa, 250 Mass. 52, 145 N.E. 262, Spector v. Building Inspector of Milton, 250 Mass. 63, 145 N.E. 265, Brett v. Building Commr. of Brookline, 250 Mass. 73, 145 N.E. 269, and Bamel v. Building Commr. of Brookline, 250 Mass. 82, 145 N.E. 272. In the first of those cases, we held, 250 Mass. at p. 62, 145 N.E. 262, that municipal by-laws and ordinances of this type are subject to review by the courts to determine whether the...