Lundy v. Town of Wayland

• Decision Date: 04 April 1952
• Citation: 328 Mass. 581,105 N.E.2d 378
• Parties: LUNDY et al. v. TOWN OF WAYLAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 378

105 N.E.2d 378

328 Mass. 581

LUNDY et al. v. TOWN OF WAYLAND.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 4, 5, 1952.

Decided April 4, 1952.

H. P. Ducharme, Holyoke, for petitioners.

R. W. Meserve, Boston, for respondent.

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

LUMMUS, Justice.

This is a petition to the Land Court under G.L. (Ter.Ed.) c. 240, § 14A, inserted by St.1934, c. 263, § 2, and G.L. (Ter.Ed.) c. 185, § 1 (j 1/2), inserted by St.1934, c. 263, § 1, brought by the owners of a lot of about 85,000 square feet, originally an apple orchard, on the State or Post Road and Old Connecticut Path in Wayland, acquired by the petitioners on April 5, 1949, on which at the time when the zoning by-laws in question were adopted on September 5, 1934, were a cider mill and bar and a vegetable stand and display stand used by the predecessor in title of the petitioners for the sale of fruit, vegetables, cider and pottery, to obtain a determination that said zoning by-laws are invalid and to restrain their enforcement. Connors v. Burlington, 325 Mass. 494, 91 N.E.2d 212, and cases cited.

By the zoning by-laws, the locus was classified as residential. The first contention of the petitioners is that the zoning by-laws were not published as required by G.L. (Ter.Ed.) c. 40, § 32, as it appeared in St.1933, c. 185, § 1. That statute provided that 'Before a by-law takes effect it shall be approved by the attorney general and shall be published in a town bulletin or pamphlet, copies of which shall be posted in at least five public places in the town; and if the town be divided into precincts copies shall be posted in one or more public places in each precinct of the town; or, instead of such publishing in a town bulletin or pamphlet and such posting, shall be published at least three times in one or more newspapers, if any, published in the town, otherwise in one or more newspapers published in the county.' Then follows a provision for notice by delivery at every occupied dwelling or apartment, instead of publishing and posting.

At the town meeting held on March 7, 1934, the zoning by-laws were adopted. At the special town meeting held on September 5, 1934, slight corrections in the zoning by-laws were made, and the by-laws as corrected were adopted. Those corrections did not impair the validity of the action taken. Town of Burlington v. Dunn, 318 Mass. 216, 218-219, 61 N.E.2d 243; Fish v. Canton, 322 Mass. 219, 222-223, 77 N.E.2d 231. The posting was of the by-laws as so corrected. Merely because the by-laws were not completely printed again before the posting is, we think, no objection to their validity.

It is provided in G.L. (Ter.Ed.) c. 40, § 25, as it appears in St.1933, c. 269, § 1, that the purpose of zoning by-laws is 'promoting the health, safety, convenience, morals or welfare of' the inhabitants, and that in zoning 'Due regard shall be paid to the characteristics of the different parts of the city or town, and the ordinances or by-laws established hereunder in any city or town shall be the same for zones, districts or streets having substantially the same character * * *.' Whittemore v. Building Inspector of Falmouth, 313 Mass. 248, 46 N.E.2d 1016; Smith v. Board of Appeals of Salem, 313 Mass. 622, 48 N.E.2d 620; Town of Marblehead v. Rosenthal, 316 Mass. 124, 126, 55 N.E.2d 13. A zoning by-law is presumed to be valid. City of Pittsfield v. Oleksak, 313 Mass. 553, 555, 47 N.E.2d 930; Town of Burlington v. Dunn, 318 Mass. 216, 221, 61 N.E.2d 243; Caires v. Building Commissioner of Hingham, 323 Mass. 589, 594-595, 83 N.E.2d 550; Lamarre v. Commissioner of Public Works of Fall River, 324 Mass. 542, 545, 87 N.E.2d...