Durand v. Superintendent of Public Bldgs. of Fall River

• Decision Date: 28 March 1968
• Citation: 354 Mass. 74,235 N.E.2d 550
• Parties: Albert J. DURAND, Jr., et al. v. SUPERINTENDENT OF PUBLIC BUILDINGS OF FALL RIVER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 550

235 N.E.2d 550

354 Mass. 74

Albert J. DURAND, Jr., et al. v. SUPERINTENDENT OF PUBLIC BUILDINGS OF FALL RIVER et al.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Jan. 5, 1968.

Decided March 28, 1968.

John T. Farrell, Fall River (William A. Torphy, Fall River, with him), for intervener Roman Catholic Bishop of Fall River; William F. Long, Jr., Fall River, for petitioners, also with him.

Richard C. Levin, Special Corporation Counsel, for respondents.

Daniel A. Sullivan, Fall River, for intervener John L. Clorite.

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

REARDON, Justice.

The petitioners seek a writ of mandamus directing the superintendent of public buildings of Fall River to enforce the zoning ordinances of that city as they existed prior to an alleged amendment of May 24, 1966, and ordering the respondent city clerk to strike the amendment from the record of ordinances of the city. A judge of the Superior Court made findings of fact and rulings of law and dismissed the petition. The petitioners and an intervener appealed but later withdrew their appeals upon a report by the judge for the purpose of 'determination of the legality of * * * (the) amendment of the Zoning Ordinances, dated May 24, 1966 * * *.'

On May 24, 1966, the city council of Fall River adopted an ordinance changing the zoning classification of a twelve and one-half acre parcel of the land (locus) from single family residence to local business. The locus is close to a traffic circle and one portion of it is occupied by a restaurant with parking facilities for thirty cars. It is bounded on one side by land of the Roman Catholic Bishop of Fall River, an intervener, upon which exists a high school recently constructed. It is situated in an area which otherwise is entirely residential although the locus itself has never been so developed. There was testimony from the city planner which indicated that designating the locus for business was designed to lessen traffic congestion in the area, that the planning board had recommended that the area be zoned for local business, and that hearings on this recommendation were held before the planning board and the city council. It appears that after the public hearing before the planning board, and upon recommendation of that board, the city council passed the ordinance in question through its first reading on April 12, 1966, and referred it to the city council committee on ordinances. On May 24, 1966, the committee unanimously recommended that the ordinance be given a second reading, passed and enrolled. The city council, later that evening, accepted and acted upon that recommendation. The council records disclose a report from the committee stating that 'they have examined said ordinance and found said ordinance truly and properly enrolled,' although the council records do not show that the committee ever met as such to consider the enrolled ordinance after it was passed by the council. However, the members of the committee, who were also members of the council, were assembled at the time 'as part of the Common Council.' The evidence indicated that it was 'customary for the members of the Committee on Ordinance after passage to be enrolled * * * to note their assent on the particular form.'

1. The judge found that the adoption of the ordinance was not in compliance with ordinances governing adoption in that the proposed amendment was not submitted to the corporation counsel for examination and approval as to form and legal character as they directed, because it was not submitted to the city council committee on ordinances before consideration by the council, and because, contrary to an ordinance, a report was received from a committee which had not actually assembled. He further found, however, that '(t)he failure of the City Council to follow in every detail the procedures prescribed by the Revised Ordinances of the City of Fall River for...