Elmer v. Board of Zoning Adjustment of Boston
| Decision Date | 14 June 1961 |
| Citation | 176 N.E.2d 16,343 Mass. 24 |
| Parties | William B. ELMER and others v. BOARD OF ZONING ADJUSTMENT OF BOSTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John F. Bok and Roger Allen Moore, Boston, for plaintiffs.
William H. Kerr and Steven T. Ladoulis, Asst. Corp. Counsel, Boston, for defendants.
Before WILKINS, C. J., and SPALDING, WHITTEMORE, KIRK and SPIEGEL, JJ.
The plaintiffs, being aggrieved by a decision of the board of zoning adjustment of the city of Boston, appealed to the Superior Court under St.1924, c. 488, § 20, as appearing in St.1941, c. 373, § 19.
This is the appeal of the board from the decree of the judge, on his determination of the facts (McHugh v. Board of Zoning Adjustment of Boston, 336 Mass. 682, 687, 147 N.E.2d 761), that the decision of the board be annulled.
The decision of the board filed September 9, 1959, pursuant to vote of August 5, 1959, in terms changed two areas in the Back Bay district of Boston from a Residential, 80 foot height, zone to a Residential, 155 foot height, zone: (a) An area on the water side of Beacon Street between Embankment Road and Dartmouth Street about 1,700 feet long and about 200 feet wide, and (b) an area comprising the two sides of Commonwealth Avenue between Arlington Street and a line 100 feet west of Dartmouth Street about 2,000 feet long and 480 feet wide.
1. The vote of the board was not invalid because taken at an executive session following deliberations at executive sessions, of which no notice had been given in compliance with G.L. c. 39, § 23A, inserted by St.1958, c. 626, § 4. 1
Statute 1960, c. 437 (), by § 5 inserted in c. 39 a new section 23C. The amending act by § 7 provided that the new § 23C should take effect as of January 5, 1959. We hold that it did so take effect and the legality of the meeting of August 5, 1959, and carlier meetings, is to be determined thereunder. See Donnelly v. Dover-
Sherborn Regional Sch. Dist., Mass., 170 N.E.2d 694. a
Section 23C provides,
Section 23A was also amended by St.1960, c. 437, § 3, to take effect on its approval of June 2, 1960. The provision of § 23A in effect through September 9, 1959 (St.1958, c. 626, § 4), read, 'Except in an emergency, no meeting of any * * * city * * * board * * * shall be held unless a notice of such meeting has been filed * * *.' Amended § 23A, by contrast, provides 'Except in an emergency, a notice of each board meeting shall be filed * * *.' Section 23C is far from precisely drawn to validate a meeting held in violation of the mandate that 'no meeting * * * shall be held.' We think, however, the intent so to do is plain. Statute 1958, c. 626, which first enacted the requirement for open meetings was approved October 7, 1958, and under art. 48 of the Amendments to the Constitution of Massachusetts, the Referendum, I, took effect ninety days thereafter on January 5, 1959, which was the effective date of § 23C. The implication is strong that all questions of the invalidity of meetings because of absence of notice were being put at rest.
The statute requires that 'action [be] otherwise duly taken' (emphasis supplied) and it expressly exempts from invalidation only failure in respect of 'public notice of meetings.' The plaintiffs contend this means that in any event, for validity, the meeting was required to be open to the public. We think this imprecise statute does not intend such result. It would be unlikely that any of the public would be in attendance at a meeting of which no notice was given. It would be arbitrary to let the validity of a meeting, held without public notice and unattended by the public, depend upon whether the meeting was declared 'open.'
Statute 1960, c. 437, establishes that the public policy that specified meetings be open is to be enforced by injunction against officers who disregard the policy, or by other 'available remedy.' Invalidation of action taken, although it would tend strongly to enforce the policy, would not be primarily a remedial measure. There are enough prospective difficulties in the implementation of such policy, particularly as applied to boards and agencies which, after due public hearing, with opportunity for all concerned to present their arguments and counterarguments, must weigh and determine important legislative, executive, and quasi judicial matters (see Fandel v. Board of Zoning Adjustment of Boston, 280 Mass. 195, 197-198, 182 N.E. 343), without putting otherwise valid action at the risk of subsequent determination that the particular deliberations were required to be held under public scrutiny. The Legislature has not gone so far.
2. The change ordered by the board was of a kind which the statute permits.
Statute 1924, c. 488, was substantially amended by St.1941, c. 373, approved June 12, 1941. 2 It is necessary, however, to notice its original substance. As enacted, the statute, in § 2, prescribed by name six 'Use Districts' and, in § 10, five 'Bulk Districts.' In each of § 2 and § 10 the respective districts were further specified 'as appearing on the zoning map * * * filed * * * in the office of the state secretary.' Sections 3 to 9 of the statute limit the uses of land and buildings in the respective use districts and §§ 11 to 16 limit the height, set backs, and bulk of buildings in the respective bulk districts.
Section 20 of St.1924, c. 488, as enacted provided that 'the board may, subject to the following conditions, change the boundaries of districts by changing the zoning map, on file at the state secretary's office * * *.'
Each sheet of the zoning map has printed on it a 'Key to Districts' as follows:
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KEY TO DISTRICTS
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USE DISTRICTS BULK DISTRICTS
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35-FT. 40-FT. 65-FT. 80-FT. 155-FT
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SINGLE RESIDENCE S-35
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GENERAL RESIDENCE R-35 R-40 R-65 R-80
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LOCAL BUSINESS L-40 L-65 L-80 L-155
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GENERAL BUSINESS B-65 B-80 B-155
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INDUSTRIAL I-65 I-80 I-155
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UNRESTRICTED U-80 U-155
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The words 'change the boundaries of districts by changing the zoning map' could be construed to mean only: change the position of the boundaries between the districts shown on the zoning map. The grant of power to create new combinations of use and bulk districts would permit as great an effect on particular districts as could result from the creation of new categories of bulk or use, or other general amendment of the law. This tends to suggest the delegation of only the limited power to move district boundary lines, and not of some aspects of broad amending power. In Bradley v. Board of Zoning Adjustment of Boston, 255 Mass. 160, 173, 150 N.E. 892, this court, as a reason for the holding that a change in a boundary must be for one or more of the seven grounds specified in the act and must be so stated, said, Compare, however, ibid., 255 Mass. at pages 167, 170, 150 N.E.2d at page 897, quoted below.
The plaintiffs do not urge so limited a construction; their contention is that the Legislature by the reference to the map with its 'Key to Districts' established the only combinations of use and bulk districts which the board may apply in making changes, and that it has not the power to create a 'Residential 155 foot district.' The plaintiffs assert an implied statutory intent that all residential areas have some open space around buildings and the further intent that the intensity of use which is possible in 155 foot bulk districts shall not be permitted in residential areas. For reasons stated in the following paragraphs we are unable to agree.
The construction of St.1924, c. 488, is affected by what the board and the Legislature have done since 1924.
In some forty instances, seventeen of which were prior to June, 1941, the board has established a use-bulk district corresponding with one of the categories shown in...
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