Kitty v. City of Springfield
| Court | United States State Supreme Judicial Court of Massachusetts |
| Writing for the Court | Before WILKINS; CUTTER |
| Citation | 343 Mass. 321,178 N.E.2d 580 |
| Decision Date | 11 December 1961 |
| Parties | Fred J. KITTY et al. v. CITY OF SPRINGFIELD et al. * |
Page 580
v.
CITY OF SPRINGFIELD et al. *
Decided Dec. 11, 1961.
[343 Mass. 322] Robert A. Gelinas, Chicopee Falls, for plaintiffs.
Arthur A. Frankl, Springfield, for defendant Ernest F. Carlson, Inc.
Before [343 Mass. 321] WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and KIRK, JJ.
[343 Mass. 322] 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.
Page 581
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, [343 Mass. 323] 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 [343 Mass. 324] 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
Page 582
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...
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Town of Canton v. Bruno
...322 Mass. 219, 222, 77 N.E.2d 231; Atherton v. Selectmen of Bourne, 337 Mass. 250, 254--256, 149 N.E.2d 232; Kitty v. Springfield, 343 Mass. 321, 324--327, 178 N.E.2d 580; HALLENBORG V. TOWN CLERK OF BILLERICA, MASS., 275 N.E.2D 525;A Hardy, Municipal Law, §§ 151, 164. 6 Compare Durand v. S......
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Noonan v. Moulton
...of Hingham, 323 Mass. 589, 595-596, 83 N.E.2d 550. G.L. c. 40A, § 6 (as amended through St.1962, c. 327). 7 See Kitty v. Springfield, 343 Mass. 321, 324-325, 178 N.E.2d A conclusion of the judge apparently was that if the vote was not spot zoning, it was something equally bad. This, however......
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Woods v. City of Newton
...brought, in which declaratory decrees have been entered. In Morgan v. Banas, 331 Mass. 694, 122 N.E.2d 369; Kitty v. City of Springfield, 343 Mass. 321, 178 N.E.2d 580, and NOONAN V. MOULTON, MASS., 204 N.E.2D 897,E the issue of a required controversy was not discussed. In Berger v. Town of......
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Hallenborg v. Town Clerk of Billerica
...Rathkopf, Zoning and Planning, p. 8--6; Yokley, Zoning Law and Practice (3d ed. and 1971 Supp.) § 5--6. See also Kitty v. Springfield, 343 Mass. 321, 324--327, 178 N.E.2d 580; Gricus v. Superintendent & Inspector of Bldgs. of Cambridge, 345 Mass. 687, 690--691, 189 N.E.2d 209; Treat v. Town......
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Town of Canton v. Bruno
...322 Mass. 219, 222, 77 N.E.2d 231; Atherton v. Selectmen of Bourne, 337 Mass. 250, 254--256, 149 N.E.2d 232; Kitty v. Springfield, 343 Mass. 321, 324--327, 178 N.E.2d 580; HALLENBORG V. TOWN CLERK OF BILLERICA, MASS., 275 N.E.2D 525;A Hardy, Municipal Law, §§ 151, 164. 6 Compare Durand v. S......
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Noonan v. Moulton
...of Hingham, 323 Mass. 589, 595-596, 83 N.E.2d 550. G.L. c. 40A, § 6 (as amended through St.1962, c. 327). 7 See Kitty v. Springfield, 343 Mass. 321, 324-325, 178 N.E.2d A conclusion of the judge apparently was that if the vote was not spot zoning, it was something equally bad. This, however......
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Woods v. City of Newton
...brought, in which declaratory decrees have been entered. In Morgan v. Banas, 331 Mass. 694, 122 N.E.2d 369; Kitty v. City of Springfield, 343 Mass. 321, 178 N.E.2d 580, and NOONAN V. MOULTON, MASS., 204 N.E.2D 897,E the issue of a required controversy was not discussed. In Berger v. Town of......
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Hallenborg v. Town Clerk of Billerica
...Rathkopf, Zoning and Planning, p. 8--6; Yokley, Zoning Law and Practice (3d ed. and 1971 Supp.) § 5--6. See also Kitty v. Springfield, 343 Mass. 321, 324--327, 178 N.E.2d 580; Gricus v. Superintendent & Inspector of Bldgs. of Cambridge, 345 Mass. 687, 690--691, 189 N.E.2d 209; Treat v. Town......