Doliner v. Town Clerk of Millis

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 175 N.E.2d 925,343 Mass. 10
• Decision Date: 09 June 1961
• Parties: Julius DOLINER, trustee, v. TOWN CLERK OF MILLIS and Town Building Inspector of Millis.

Page 925

175 N.E.2d 925

343 Mass. 10

Julius DOLINER, trustee, v. TOWN CLERK OF MILLIS and Town Building Inspector of Millis.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 3, 1961.

Decided June 9, 1961.

John J. Fitzpatrick, Woburn (Eugene L. Tougas, Waltham, with him), for petitioner.

Samuel H. Cohen, Boston (Anthony T. Petrocca, Boston, with him), for respondents.

Before WILKINS, C. J., and SPALDING, CUTTER, KIRK and SPIEGEL, JJ.

CUTTER, Justice.

This is a petition by the trustee of a real estate trust, which owns land in Millis, for a writ of mandamus to require (a) the town clerk to expunge from the records of a town meeting held on March 9, 1959, a vote adopting an amendment of the town zoning by-law, and (b) the building inspctor to enforce the by-law as it stood prior to the 1959 amendment. Substantial testimony was taken before a judge of the Superior Court (not the judge who dealt with the related case of Doliner v. Planning Bd. of Millis, Mass., 175 N.E.2d 919), who made findings. Judgment for the respondents was ordered. The petitioner appealed from the judgment. The evidence designated by the parties is reported. See Rule 2 of the Rules for the Regulation of Practice before the Full Court (1952), 328 Mass. 693, as amended December 12, 1955, 334 Mass. 772.

During 1958 the town planning board employed a firm of consultants to make a survey of the town and to prepare a comprehensive zoning scheme. Such a scheme was drawn up as an amendment to or revision of the town's zoning by-law and provided for lots varying in size from 15,000 to 60,000 square feet taking into account the location, water table, sanitary conditions, and other characteristics of the land. The proposal made three classifications of land, residential, commercial and industrial, and was similar to zoning plans of other towns in the area.

On February 19, 1959, after newspaper notice, a public hearing was held and the plan with a map was submitted and described by the chairman of the planning board to the more than one hundred fifty persons present. Various perfecting changes, involving shifts in the classification of relatively small parcels from one district to another, were suggested both during and after the public hearing. Subsequently thirteen of these proposed changes, affecting some 4.3 per cent (about 339 acres) of the total town acreage (7,788 acres), were accepted by the planning board and included in the proposed zoning plan.

On March 9, 1959, at a town meeting attended by some 550 to 600 persons, the new zoning proposal was considered. Distribution was then made of copies of the proposed by-law and of a map, which, as was stated to those present, did not contain the changes made by the board after the February 19 public hearing. In the hall, however, were posted maps containing those changes made after February 19, and also a map with acetate overlays to show water lines, swampy areas, and current land uses. The chairman of the planning board explained the proposal, including the changes made since the public hearing. There was subsequent discussion lasting about an hour. One amendment was proposed at this meeting and later passed at a special town meeting on May 7, 1959. The principal proposal, as altered after the public hearing, was passed by the required two-thirds vote at the March 9 town meeting.

1. We do not determine whether, in view of other available remedies for testing the validity of the zoning by-law in its application to Doliner, he has any remedy by mandamus. See, however, Whittemore v. Town Clerk of Falmouth, 299 Mass. 64, 69, 12 N.E.2d 187; Atherton v. Selectmen of Bourne, 337 Mass. 250, 258-259, 149 N.E.2d 232. We assume, without deciding, that Doliner has standing to bring some proceeding to test the validity of the zoning by-law in its application to his property. We consider the case on the merits, as it has been presented to us, and disregard procedural questions not fully argued.

2. Changes made by the planning board after the public hearing on February 19 did not render the zoning revision invalid under G.L. c. 40A, § 6 ¹ (as amended through St.1957, c. 137). The planning board at the public hearing had before it a tentative proposed by-law and proposed zoning map. It then received suggestions for changes of zoning for certain small areas. These were embodied in maps posted in the town meeting room and were explained. The trial judge was warranted in concluding that these changes 'did not change the substantial character of the [by-]law so that [under G.L. c. 40A, § 6] a new public hearing was required.' As the judge pointed out 'the purpose of such public hearing is to obtain public sentiment so that proper revision can be made.' The case is governed by Town of Burlington v. Dunn, 318 Mass. 216, 218-219, 61 N.E.2d 243, 168 A.L.R. 1181. Cf. Fish v. Town of Canton, 322 Mass. 219, 221-224, 77 N.E.2d 231. The recorded written approval of the proposed revised by-law by the planning board was a sufficient recommendation by the board to the town meeting that the by-law be adopted, particularly when taken with the explanations given by the chairman at the meeting. See Shannon v. Building Inspector of Woburn, 328 Mass. 633, 635, 105 N.E.2d 192. Cf. Whittemore v. Town Clerk of Falmouth, 299 Mass. 64, 68-69, 12 N.E.2d 187 (board unable to make recommendation because of tie vote and auditor found no recommendation had been made); Caires v. Building Com'r of Hingham, 323 Mass. 589, 595, 83 N.E.2d 550. The persons at the town meeting had ample knowledge of the position and advice of the planning board.

3. Doliner has not established that the revised by-law was not based upon sound grounds reasonably related to the public health, morals, safety, and welfare. The plan was drawn up after consultation with zoning experts. It was carefully discussed by the planning board. Conditions in neighboring towns were considered. Studies were made of existing land use, public service facilities, soil and land conditions, sanitary problems, and similar matters. Consideration was given, in determining lot sizes, to their proximity to utilities and to the center of the town. 'Every presumption is to be made in favor of the by-law, and its enforcement will not be refused unless it is shown * * * that it conflicts with the Constitution or the enabling statute.' See Caires v. Building Com'r of Hingham, 323 Mass. 589, 594-595, ...