Johnson v. Town of Framingham

• Decision Date: 02 December 1968
• Citation: 354 Mass. 750,242 N.E.2d 420
• Parties: Donald M. JOHNSON v. TOWN OF FRAMINGHAM et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 420

242 N.E.2d 420

354 Mass. 750

Donald M. JOHNSON v. TOWN OF FRAMINGHAM et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 8, 1968.

Decided Dec. 2, 1968.

Ruth I. Abrams, Boston, for plaintiff.

George T. Finnegan, Boston, for William F. Drake (Joseph H. Lewis, Framingham, for The Town of Framingham and others, with him).

Bofore WILKINS, C.J., and WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

WILKINS, Chief Justice.

The plaintiff, a resident landowner and taxpayer of the defendant town, brings this bill in equity for a declaratory decree under G.L. c. 231A against the town, its inspector of buildings and wires, and its town clerk to determine the validity of an amendment to the zoning by-law. Another resident, William F. Drake, who sponsored the amendment, was allowed to intervene as a party defendant. Demurrers of the defendants were sustained without leave to amend. A final decree was entered dismissing the bill, from which the plaintiff appealed.

We summarize the allegations of the bill, to which are annexed applicable portions of the zoning by-law, including Section III A 1, which reads in material part: 'No building or structure shall be used or arranged or designed to be used * * * except for one or more of the following purposes.'

The warrant for the annual town meeting in 1667 contained 'Article 56. To see if the Town will vote to amend Section III. A(1), SINGLE RESIDENCE, of the Zoning By-Laws, by adding the following: k. Private and public golf clubs, tennis courts; pass any vote or take any action relative thereto.' The planning board duly held a public hearing, and prior to the town meeting on March 15 made a report to the moderator that it had voted to recommend that the article be 'indefinitely postponed' as too broad in scope and as providing none of the conditions necessary to protect property in a single residence zone.

At the adjourned annual town meeting on March 28 it was voted 'That Section III. A. (3) of the zoning by-law be amended by adding the following additional exception to the two exceptions already listed therein: c. Private and public golf clubs provided the same are located on a parcel or parcels of land of not less than 50 acres.' As given in the bill, Section III A 3 reads: 'Subject to the provisions of Exceptions in Section V.E of this By-Law a. Charitable and welfare institutions b. Licensed establishment for the care of sick, aged, crippled or convalescent persons.' Nothing further is shown in the bill as to Section V.E, but we are informed in the brief of the defendants that board of appeals action is required as to any such use by way of exception. The planning board held no hearing and made no final report with recommendations on the amendment adopted. The amendment was approved by the Attorney General and published by the town clerk as required by law.

There are prayers that the amendment be declared void and of no effect; and that the building inspector be ordered to enforce the by-law as it existed prior to the adoption of the amendment.

The grounds of demurrer are in substance that on the allegations the amendment was validly adopted; and that the bill does not set forth facts sufficient to constitute a 'cause of action' under G.L. c. 231A.

1. The plaintiff's first contention is that the warrant did not give notice of the action of the meeting. The applicable statute provides that the warrant 'shall state * * * the subjects to be acted upon' at the meeting, and that 'No action shall be valid unless the subject matter thereof is contained' in the warrant. G.L. c. 39, § 10 (as amended through St.1964, c. 1, § 1).

The plaintiff objects that the amendment (1) changed the section to be amended from Section III A 1 to Section III A 3; (2) removed tennis courts from consideration; and (3) added restrictions which the planning board had no opportunity to consider.

We do not agree. Article 56 authorized the voters to act upon the amendment of the zoning by-law to permit golf clubs and tennis courts in single residence zones. The subject was stated very broadly in these words, 'pass any vote or take any action relative thereto.' This was the subject on which the town meeting undertook to act in passing the amendment. It was not outside the scope of the article to omit tennis courts, to prescribe a minimum size for golf clubs, or, instead of an unconditionally permitted use, to provide for action of the board of appeals by way of exception as to any such use. No logic requires that there must be tennis courts in order that there might be golf clubs. The fifty acre minimum and the board of appeals' action on exceptions both tend to restrict the number of clubs which may be authorized. It is not a serious matter that the proposed amendment was of a different subsection of Section III A.

This aspect of the case is settled adversely to the plaintiff in the leading case of Town of Burlington v. Dunn, 318 Mass. 216, 219, 61 N.E.2d 243, 245, 168 A.L.R. 1181, where Chief Justice Qua stated with reference to G.L. c. 39, § 10, supra: 'This means only that the subjects to be acted upon must be sufficiently stated in the warrent to apprise voters of the nature of the matters with which the meeting is authorized to deal. It does not require that the warrant contain an accurate forecast of the procise action which the town meeting will take on these subjects.'

The plaintiff, in an effort to avoid this result, grasps at a phrase from that case that 'the amendments were not of a fundamental character' (page 218, 61 N.E.2d page 244). The changes were in the zoning map which zoned for business five additional small parcels of land in scattered locations. The changes in the case...