Fish v. Town of Canton

• Decision Date: 05 January 1948
• Citation: 322 Mass. 219,77 N.E.2d 231
• Parties: FISH et al. v. TOWN OF CANTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 219

77 N.E.2d 231

FISH et al.

v.TOWN OF CANTON et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Jan. 5, 1948.

Petition by John E. Fish, Jr., and others, holders of freehold estates in possession in the Town of Canton, against the Town of Canton for adjudication as to the validity of a purported amendment of the town's zoning by-law, wherein one Deutschmann was permitted to intervene. The judge ruled the purported amendment to be invalid, and the petitioners and the intervener bring exceptions, and the intervener appeals.

Intervener's appeal dismissed, exceptions of intervener overruled, and petitioner's exceptions dismissed.Appeal from Land Court, Norfolk County; Cotton, Judge.

Before QUA, C. J., and DOLAN, WILKINS, SPALDING, and WILLIAMS, JJ.

H. W. Cole, B. A. Brickley and C. W. O'Brien, all of Boston, and E. J. Galligan, of Canton, for Deutschmann.

S. R. Wrightington, of Boston, for petitioners.

WILKINS, Justice.

The petitioners, holders of freehold estates in possession in the respondent town of Canton, bring this petition in the Land Court under G.L. (Ter.Ed.) c. 240, § 14A, and c. 185, § 1(j 1/2), as inserted by St.1934, c. 263, seeking an adjudication as to the validity of a purported amendment to the town's zoning by-law by vote of a town meeting held on March 18, 1946. The judge in his decision ruled the purported amendment to be invalid. The respondent Deutschmann, who had been allowed to intervene, appealed, and filed a bill of exceptions as to rulings on evidence and on the merits. The petitioners filed a bill of exceptions relating to rulings on evidence. Since the rulings to which the respondent Deutschmann objects are included in his bill of exceptions, we deal with them as presented by his exceptions. Pitman v. Medford, 312 Mass. 618, 619, 45 N.E.2d 973.

The underlying facts are undisputed and appear in the decision. In 1937 the town adopted an extensive zoning by-law and map establishing single residence, general residence, combination business-residence, business, and industrial districts. In 1939 area regulations were added by an amendment, which established districts designated as A, B, and C, with minimum lot areas and street frontages. On December 10, 1945, certain voters petitioned the planning board for a public hearing under G.L.(Ter.Ed.) c. 40, § 27, as appearing in St.1941, c. 320, ‘in connection with the following article which will be inserted in the warrant for the annual town meeting to be held in March, 1946: ‘To see if the town will vote to repeal in its entirety the present zoning by-law of the town of Canton or take any other action in relation thereto.’' On January 10, 1946, after due notice, the planning board conducted a public hearing, and thereafter requested the town finance committee to include the board's recommendations in its report to the town. Accordingly, there appeared in the finance committee's report respecting article 28 of the warrant for the annual town meeting: ‘The planning board recommends that this article be not adopted, the principal reason being that the total abolition of the zoning by-law is entirely uncalled for and a step backward.’ Article 28 was identical with the proposed article contained in the petition to the planning board. At the annual town meeting held on March 11, 1946, the only vote under article 28 failed of passage, the article was ‘dismissed,’ and the meeting adjourned to March 18, 1946.

At the adjourned meeting article 28 was reconsidered, and it was unanimously voted ‘that Article 28 be amended as follows: that class A areas be reduced to not less than 15,000 feet, with a frontage of 100 feet; that class B areas be reduced to not less than 10,000 feet, with a frontage of 75 feet; that class C remain as it is, with 6,500 feet areas, and a 65-foot frontage; and land at junction of Dedham Road and Elm Street, more fully described in accompanying plan as veterans' housing project, to be modified from zone A to zone C.’ There was no further hearing by the planning board.

The judge in his decision stated, ‘I find that it is evident, from the record, that the substance of the entire vote recorded by the clerk was an attempt to amend the zoning by-law of the town and not an attempt or an intention to amend article 28.’ In so far as this partook of the nature of a ruling, we assume in favor of the respondent Deutschmann, but without so deciding, that it was correct.

The judge in substance ruled the action of the town meeting to be invalid because the warrant did not contain the subject matter of that action, and because statutory preliminaries to amendment of zoning by-law were not complied with. There are two material statutes. ‘The warrant for all town meetings shall state * * * the subjects to be acted upon thereat. * * * No action shall be valid unless the subject matter thereof is contained in the warrant.’ G.L. (Ter.Ed.) c. 39, § 10, as most recently amended by St.1939, c. 182. Zoning ‘by-laws may be adopted and from time to time be changed by amendment, addition or repeal, but only in the manner hereinafter provided. No * * * by-law originally establishing the boundaries of the districts or the regulations and restrictions to be enforced therein, and no * * *...