Kitty v. City of Springfield

• Decision Date: 11 December 1961
• Citation: 343 Mass. 321,178 N.E.2d 580
• Parties: Fred J. KITTY et al. v. CITY OF SPRINGFIELD et al. *
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 580

178 N.E.2d 580

343 Mass. 321

Fred J. KITTY et al. v. CITY OF SPRINGFIELD et al. ^*

Supreme Judicial Court of Massachusetts, Hampden.

Argued Sept. 27, 1961.

Decided Dec. 11, 1961.

Robert A. Gelinas, Chicopee Falls, for plaintiffs.

Arthur A. Frankl, Springfield, for defendant Ernest F. Carlson, Inc.

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

CUTTER, Justice.

Three residents of Springfield seek (1) a declaration whether Springfield's zoning ordinance has been validly amended to rezone certain land, and (2) an injunction to prevent the building commissioner from issuing a permit to build a multiple dwelling. This dwelling would not comply with the zoning ordinance if the amendment is invalid. The case was referred to a master, whose report was confirmed. By final decree the bill was dismissed. The plaintiffs appealed.

Upon the issue ¹ whether the amendment was properly adopted, the master found the following facts. The city council consists of eighteen councilmen and eight aldermen. After a report by the planning board recommending the change, the common council, on May 11, 1959, by a vote of twelve to five (one member absent) purported to pass the zone change ordinance to be ordained. A motion for immediate reconsideration was made and lost. The ordinance was then sent to the board of aldermen but was returned to the common council because the necessary fourteen votes (three-quarters of full membership) required for passage had not been obtained in the common council, inasmuch as a 'proper protest' had been filed with the city clerk. See G.L. c. 40A, § 7, inserted by St.1954, c. 368, § 2. ² On May 25, 1959, the common council again voted to pass the ordinance to be ordained by a vote of sixteen to one (one member being absent). On that day, the president of the common council wrote on the form of ordinance, 'Previous vote taken on passage to be ordained was not sufficient due to the signed petition in opposition. The ordinance was presented for passage to be ordained a second time and passed.' The ordinance thereafter was passed by the board of aldermen and approved by the mayor.

The question for decision is whether the common council could proceed to pass the amendatory ordinance on May 25, 1959, after the inadequate vote on May 11, 1959, and the subsequent failure of a motion for reconsideration. The provisions of the council's joint rules and of the rules of the common council governing reconsideration are set out in the margin. ³ At the time of the votes mentioned above, 'it was the custom or practice of the [c]ouncil, after an adverse vote on a zone change was had, to permit a subsequent vote on the proposed change either at the same meeting or a later one. This procedure ha[d] been resorted to on many occasions for some years prior to the vote on the ordinance in question. Later votes have taken place on some occasions many months after an original adverse vote, sometimes later than one year from the date of the first vote. * * * [I]t is the custom or practice of the [c]ity [c]ouncil to consider a negative vote on a zone change final only after the passage of a motion 'Leave to Withdraw."

We must consider the votes of the common council in the light of the statutes applicable to zoning law changes, which indicate the Legislature's intention that, at every stage, there shall be procedural safeguards against ill considered action. City council votes upon such changes are regulated in certain respects by c. 40A, § 7 (see footnote 2, supra). Section 6 (as amended through St.1957, c. 137 ⁴) is closely related to § 7. The prescribed procedure includes (1) hearings, after notice, before the planning board and the council or one of its committees, (2) a report by the planning board, and (3) votes by specified portions of the membership of both branches of the city council.

By § 8 (inserted by St.1954, c. 368, § 2) it is provided that 'no proposed ordinance * * * making a change in any existing zoning ordinance * * * which has been unfavorably acted upon by a city council * * * shall be considered on its merits by the city council * * * within two years after the date of such unfavorable action unless the adoption of such proposed ordinance * * * is recommended in the final report of the planning board * * * required by' § 6. We assume (because the zoning change under discussion was recommended by report of the planning board) that § 8 would not prevent a renewed presentation of the proposed ordinance within two years of May 11, 1959, if done in accordance with the procedure out-lined in §§ 6 and 7. Nevertheless, § 8 does indicate a legislative invention that, with respect to changes not recommended by the planning board, unfavorable action by a city council shall for two years prevent any new action of the same character. Thus in some cases, it must be determined precisely when 'unfavorable action' occurs. Sections 6 and 7 do not suggest that the council procedure for adoption of a zoning change is to be different where the planning board recommends a change from what it would be if the planning board disapproves the change.

By the common council's twelve to five vote on May 11, 1959, the ordinance then failed of passage. Concerning the further proceedings on May 11, the record says only that 'a motion for immediate reconsideration was made and lost.' There is no suggestion that any notice was given on May 11 of intention to seek reconsideration at the next meeting. Upon a strict application of the written rules, when the May 11 meeting dissolved, the proposed ordinance was no longer pending before the common council because it had been defeated. Under usual parliamentary procedure, it would have been too late to move for reconsideration after the May 11 meeting had adjourned. See Coleman v. Louison, 296 Mass. 210, 215, 5 N.E.2d 46. See also Cushing, Manual of Parliamentary Practice (1950 ed.) § 257; Robert, Rules of Order Revised, § 36; Robert, Parliamentary Law, pp. 88-89, 413. Cf. Dodsworth v. Mayor of Medford, 308 Mass. 62, 65, 30 N.E.2d 835. Cf. also Tuell & Tuell v. Meacham Contracting Co., 145 Ky. 181, 183-186, 140 S.W. 159 (reconsideration sought within two months held within a reasonable time and proper in the circumstances); Dal Maso v. Board of County Com'rs, 182 Md. 200, 207, 34 A.2d 464; McQuillin, Municipal Corporations (3d ed.) § 13.48; Rhyne, Municipal Law, § 5-12. On the general subject of reconsideration, see Mansfield v. O'Brien, 271 Mass. 515, 518-521, 171 N.E. 487.

It is contended, however, that this case cannot be decided solely by strict application of parliamentary rules. First, it is argued that the action on May 11, 1959, may be corrected because it was taken under a misapprehension that no protest had been filed and that a two-thirds vote would suffice under § 7. The record does not establish that any such misapprehension existed and, in any event, it is immaterial whether the five common council members who voted against the ordinance on May 11 did so on the merits of the issue or because they thought the passage of the ordinance would not be endangered by their adverse votes. As responsible members of a municipal legislative body their votes must stand as cast, unless duly and seasonably changed in accordance with applicable parliamentary principles.

Second, it is said that it was a custom of the city council 'after an adverse vote on a zone change * * * to...