Morgan v. Banas

• Decision Date: 03 November 1954
• Citation: 122 N.E.2d 369,331 Mass. 694
• Parties: Sydney S. MORGAN et al. v. John BANAS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 369

122 N.E.2d 369

331 Mass. 694

Sydney S. MORGAN et al. v. John BANAS et al.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Sept. 23, 1954.

Decided Nov. 3, 1954.

Charles V. Ryan, Jr., Springfield (James F. Egan, Springfield, with him), for plaintiffs.

Joseph P. Zajac, Allston, for defendant Banas.

Donald A. Clancy, Associate City Solicitor, Springfield, for defendants City Council and Mayor of Springfield.

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

QUA, Chief Justice.

This is a bill for a declaratory decree as to the validity of an amendment to the zoning ordinance of Springfield whereby certain land of the defendant Banas on the north side of Boston Road was changed from 'Residence B' to 'Business A.' The trial judge found the amendment valid. Beyond this he made no express findings. He dismissed the bill. The evidence is reported.

The plaintiffs insist that the amendment is invalid for several reasons with which we shall deal in turn.

1. There is not enough in the evidence to prove that this is an instance of so called 'spot zoning.' There appear to have been at least seventeen acres in the tract rezoned. So far as appears all of this was vacant land. There was practically no evidence as to the character of Boston Road, except that it was 'a main thoroughfare' to Worcester and Boston, or as to the distance of the locus from the business center of Springfield, the growth or lack of growth of this section of the city, or the location of other businesses with respect to this tract. It does appear, however, that the business of a tourist court is conducted on the south side of Boston Road opposite the Banas land. There was evidence that many residences were in the neighborhood, but even with the assistance of the exhibits it is impossible to acquire from the record any very accurate idea of their location. Not many seem to have been on Boston Road. There was no evidence as to the surface of the Banas land, whether rough or smooth, high or low, or as to how this land compared with surrounding lands in any respect. There was no evidence as to how the surrounding lands were zoned, except that after the change to which objection is made in this proceeding another zoning change connected the Banas land on the west with another business zone along Boston Road. There is nothing in this evidence to justify a finding that the city council did not act reasonably with 'Due regard * * * to the characteristics of the different parts of the city' for the purposes laid down in G.L. (Ter.Ed.) c. 40, § 25, as appearing in St.1933, c. 269, § 1. ¹ Lamarre v. Commissioner of Public Works of Fall River, 324 Mass. 542, 544-546, 87 N.E.2d 211, and cases cited; Shannon v. Building Inspector of Woburn, 328 Mass. 633, 635-638, 105 N.E.2d 192; Town of Marblehead v. Rosenthal, 316 Mass. 124, 126, 55 N.E.2d 13. Compare Caputo v. Board of Appeals of Somerville, 331 Mass. ----, 120 N.E.2d 753.

2. It is contended that the formal requirements of G.L. (Ter.Ed.) c. 40, § 27, as appearing in St.1941, c. 320, were not observed because the hearing before the city council was held on December 27, 1951, and the amendment was voted on February 25, 1952, and in the meantime there had been an election which had resulted in a change of eleven members in the city council of twenty-six members, including a change in the majority in the board of aldermen.

We do not believe that the changes in membership required a second hearing. Otherwise we should apparently be forced to say that any change at all in membership would render a previous hearing nugatory. The statute does not require that only those who attend that hearing should vote upon the ordinance. The statute itself provides that the hearing may be held by a committee appointed for the purpose. And in towns the only hearing is before the planning board or selectmen, although the by-law is finally voted upon by the town meeting as a whole. An advertised public hearing upon a matter of general interest to a neighborhood does not become a futility by subsequent changes in the personnel of the council. The arguments brought out and the reaction of the public to the proposal would generally be known to successor members. The plaintiffs' contention on this point would seem to be fully answered by Taintor v. Mayor & City Council of Cambridge, 192 Mass. 522, 78 N.E. 545. And see Zeo v. City Council of Springfield, 241 Mass. 340, 344-345, 135 N.E. 458. The cases of Sesnovich v. Board of Appeal of Boston, 313 Mass. 393, 47 N.E.2d 943, and Perkins v. School Committee of Quincy, 315 Mass. 47, 51 N.E.2d 978, are distinguishable both as to their subject matter and as to the wording of the statutes involved. One distinction is that the action of the board in those cases was quasi judicial rather than legislative in character. See Coleman v. Board of Appeal of Boston, 281 Mass. 112, 115, 183 N.E. 166.

3. It is contended that the previous hearing before the planning board and the recommendations of that board were insufficient because they related to a petition by Banas for rezoning his entire tract alleged in the bill to contain twenty-eight acres ², whereas in fact the city council ultimately rezoned only about seventeen acres out of that tract. It is argued that the amendment adopted was not the same as that proposed and that a further reference to and hearing by the planning board were necessary to comply with c. 40, § 27.

One answer to this contention is that paragraphs 8 and 9 of the plaintiffs' bill, the truth of which (with an exception not here material) is admitted in the defendants' answers, can only be construed as alleging that the entire tract included in the petition, whatever its area, was rezoned. The amended ordinance itself does not appear in the record. But even if it be the fact that only seventeen acres were rezoned out of twenty-eight petitioned for, and if that fact could be shown in spite of the pleadings, there would be nothing in the point. Section 27 provides that after the required hearings and the report by the planning...