Harrison v. Textron, Inc.

• Citation: 367 Mass. 540,328 N.E.2d 838
• Parties: Tredwell A. HARRISON et al. v. TEXTRON, INC. (and five companion cases).
• Decision Date: 30 April 1975
• Court: United States State Supreme Judicial Court of Massachusetts

Page 838

328 N.E.2d 838

367 Mass. 540

Tredwell A. HARRISON et al. v. TEXTRON, INC. (and five companion cases).

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Nov. 7, 1974.

Decided April 30, 1975.

Douglas A. Randall, Quincy, for plaintiffs.

Jerome P. Facher, Boston (Evan Y. Semerjian, Boston, with him), for Textron, Inc.

Dace J. Moore, Boston, Town Counsel, for the Bd. of Appeals of Braintree.

Before TAURO, C.J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

WILKINS, Justice.

The plaintiffs raise a variety of challenges to rulings and other determinations in several cases which relate to the use of residentially zoned land in Braintree for vehicular access to industrially zoned land. The location and some of the parties are not new to us.

We first encountered this general subject in Harrison v. Building Inspector of Braintree, 350 Mass. 559, 215 N.E.2d 773 (1966), a mandamus action seeking enforcement of the town zoning by-law. The petition raised the question whether 'an owner of land in an industrial district may use lots of land in an adjacent residential zone as access roadways for its industrial plant.' Id. at 560, 215 N.E.2d at 774. We answered that question in the negative and sent the matter back for trial, holding that demurrers to the petition should not have been sustained.

The mandamus action proceeded in the Superior Court, and in November, 1969, judgment was entered for the plaintiffs. When an appeal was argued here in March, 1971, the defendants asserted that the challenged access roads had been closed, making the mandamus action moot. We remanded the case to the Superior Court for a determination whether the order for judgment should extent to 'other access roads across the residentially zoned areas on either side of the . . . (plaintiffs') premises' and for consolidation with other related matters in the discretion of the Superior Court judge. At that time, the other proceedings which are now before us were pending and untried in the Superior Court in Norfolk County. A motion to consolidate the various cases was allowed, and, as will appear, they all were tried in March, 1971.

Following our 1966 opinion in the mandamus action, the town promptly undertook to rectify the problem of the inaccessibility of the industrial land under the town's zoning by-law. It adopted a zoning by-law amendment which added to the permitted uses in a residential district: 'Access or egress ways, public or private, to or from land in any other district; subject to the approval by the Board of Appeals, however, on such ways established after the adoption of this amendment.' The Harrisons challenged the validity of that zoning change and prevalied in the Land Court. We affirmed the Land Court judge's decision that the amendment was illegal in so far as it purported to validate existing ways. Harrison v. Braintree, 355 Mass. 651, 247 N.E.2d 356 (1969). Thus, the town's purported ratification of the existing access roads adjacent to the Harrisons' property was invalid. We stated, however that 'the provision for the use of residentially zoned land for access to other zones with the approval of the board of appeals' was valid. Id. at 655, 247 N.E.2d at 359.

Following our opinion in this second case, an application for a special permit was presented to the board of appeals in connection with a proposed new access road to be called Farm River Drive. The board of appeals granted a special permit in June, 1969. Three persons, including the Harrisons, appealed to the Superior Court from the decision granting that special permit. That appeal was one of the cases pending in the Superior Court for Norfolk County when we remanded the mandamus action in March, 1971.

A third case, which was also pending in the Superior Court in March, 1971, was the Harrisons' challenge to the town's purported acceptance of Farm River Drive as a town way. A town meeting in the spring of 1970, voted unanimously to accept the way as laid out by the selectmen. The selectmen thereafter voted to adopt an order of taking of an easement in Farm River Drive and awarded no damages in connection with the taking. Subsequent to that vote, but before the order of taking was recorded in the registry of deeds, a deed was recorded by which the owner granted the town an easement in Farm River Drive and purported to dedicate the road to the town as a public way. ¹ The Harrisons filed a petition for a writ of certiorari and for declaratory relief challenging the validity of the layout of Farm River Drive as a town way.

In addition to these three cases which were pending against public officials in March, 1971, three actions for nuisance brought by the Harrisons were then pending in the Superior Court against Textron, Inc. (Textron), the owner of the industrial plant to which access was obtained over the ways in question. ² These nuisance actions were commenced in November of 1966, 1968, and 1970, respectively, and were tried together in the Superior Court before a jury which returned verdicts for the Harrisons aggregating $7,050. Textron has not challenged the result reached in the Superior Court, but the Harrisons have presented exceptions to various rulings of the judge.

After the jury returned verdicts in the tort actions, the judge continued the consolidated proceedings to hear the mandamus action, the zoning appeal and the certiorari petition. He made careful and extensive findings of fact and rulings of law. He upheld the grant of the special permit to use Farm River Drive; he decided that the certiorari and declaratory relief petition should be dismissed because there was no material defect in the procedure by which Farm River Drive had become a town way and because the plaintiffs were not entitled to declaratory relief; and he concluded that the mandamus petition should be dismissed for mootness because the original access roads had been closed and because the new access road (Farm River Drive) was a valid town way and, alternatively, the subject of a valid special permit. Appropriate orders for judgment were entered in the mandamus and certiorari proceedings and a final decree was entered upholding the board of appeals in the zoning appeal.

We ordered direct appellate review of the plaintiffs' various appeals. We shall deal first with the cases involving public officials and then will consider the nuisance actions. Where necessary, additional facts will be set forth bearing particularly on the case under discussion.

THE ZONING APPEAL.

The plaintiffs contend that the board of appeals lacked authority to grant a special permit for Farm River Drive. They argue that our decision in Harrison v. Braintree, 355 Mass. 651, 247 N.E.2d 356 (1969), invalidated the entire 1966 zoning amendment, including the right to obtain a special permit for a new access way across residential land to another zoning district. Our decision involved only that aspect of the by-law change purporting to validate existing ways across residential land to other zoning districts. As the opinion clearly states (655--657, 247 N.E.2d 356), it did not invalidate that portion of the by-law change allowing new access ways by special permit from the board of appeals. In fact, the opinion indicated that this latter provision was valid (655, 247 N.E.2d 356).

The finding of the Land Court judge in Harrison v. Braintree, supra, that the use of the ways on either side of the Harrisons' property was unreasonable, does not compel a similar finding in these circumstances. Farm River Drive is considerably farther from the Harrisons' property than was either of those ways. The plaintiffs make no other challenge to the judge's finding that the new access road is not detrimental or offensive to the neighborhood and that it does not materially affect the use and enjoyment of the plaintiffs' property. ³

The only additional issue in the zoning appeal involves the plaintiffs' exception to the judge's disapproval of the plaintiffs' designation of the record on appeal. The plaintiffs designated '(a) transcript of all the evidence adduced at the trial' and '(a)ll the exhibits introduced in evidence and those marked for identification only.' In disapproving those designations, the judge relied on the requirements for designation of the record on appeal appearing in S.J.C. Rule 1:02, as amended, 353 Mass. 804 (1967). The transcript consists of over 1,400 pages of testimony, including evidence in all six of the cases consolidated for trial. There was no abuse of discretion in striking the plaintiffs' designation of all the evidence in all these cases. Moreover, in any event the plaintiffs' remedy was to print any matter so omitted as an appendix to their brief and to make an argument based on that material. See S.J.C. Rule 1:02(6) (353 Mass. 732 (1967)). This the plaintiffs have not done.

THE CERTIORARI PETITION.

Although the 'Petition for Writ of Certiorari and Declaratory Relief' alleges a broad attack on the laying out and accepting of Farm River Drive, the plaintiffs argue only two points before us in connection with the judge's dismissal of that petition. They claim standing to challenge the town's action because the jury verdict in the third nuisance action determined conclusively that the plaintiffs were affected adversely by the existence of the public way. Secondly, they argue that they were entitled to a decree declaring that Farm River Drive was not validly laid out as a public way.

Even if the plaintiffs were affected adversely by the existence of Farm River Drive as a public way, the laying out, acceptance and taking of the new public way would not be rendered invalid thereby. ⁴ The plaintiffs make no other argument to us that Farm River Drive is not a valid public way. ⁵

We come, then, to the rather academic question whether the plaintiffs are entitled to declaratory relief. ⁶ We see no impropriety in seeking a declaratory decree in conjunction with a petition...