Pierce v. Town of Wellesley

• Decision Date: 11 December 1957
• Citation: 146 N.E.2d 666,336 Mass. 517
• Parties: T. Raymond PIERCE et al. v. TOWN OF WELLESLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 666

146 N.E.2d 666

336 Mass. 517

T. Raymond PIERCE et al. v. TOWN OF WELLESLEY.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Nov. 8, 1957.

Decided Dec. 11, 1957.

Albert Auburn, Wellesley, for petitioners.

William R. Cook, Town Counsel, Boston, for respondent.

Before, WILKINS, C. J., and RONAN, COUNIHAN, WHITTEMORE and CUTTER, JJ.

CUTTER, Justice.

The petitioners are owners of freehold estates in possession in properties in Wellesley zoned for single residences. They have filed in the Land Court a petition under G.L. (Ter.Ed.) c. 240, § 14A, and c. 185, § 1(j 1/2), ¹ to determine the validity of an amendment to § 2 B 3 of the Wellesley zoning by-law adopted at a special town meeting on November 28, 1955, which revised that section so as to include among the purposes for which in 'single residence districts premises' may be used '3. Public school, municipally owned or operated public parking lot or other public use.' The words 'municipally owned or operated public parking lot' were added by the amendment, largely because of the decision in the Superior Court reviewed in Berger v. Town of Wellesley, 334 Mass. 193, 195, 124 N.E.2d 436.

The Berger case involved a bill for declaratory relief brought to determine the right of the town, under its then existing zoning by-law, to lease certain land, partly in a single residence district, from a Mrs. Fraser for the purpose of maintaining a municipal parking lot for automobiles. In the Superior Court, on October 13, 1955, by what may have been (and this we need not decide) an unduly restrictive interpretation of the words 'other public use' in § 2 B 3 prior to its amendment on November 28, 1955, it was determined that the unamended section did not permit the use of land then proposed. When the matter reached this court, the controversy was dismissed on May 11, 1956, as moot because of the amendment, which had become effective a short time earlier.

The trial judge, in the present case, recited these facts relating to the Berger case and made the following findings. Certain of the petitioners own land 'in a single residence district in the Wellesley Square area, near * * * land owned by Helen L. Fraser, which the selectmen of * * * Wellesley were authorized to lease for * * * a municipal parking lot for automobiles.' The Wellesley planning board in 1950 caused a study of traffic congestion in Wellesley center to be made by experts, who recommended taking a major part of the block including the Fraser land. There are six municipal parking lots in Wellesley established and enlarged at various times between 1930 and 1953. The planning board recommended the adoption of the amendment of § 2 B 3 here under consideration in a report dated November 28, 1955, which stated (1) that the unamended zoning by-law, referring to 'public school or other public use,' was designed 'to permit all needed municipal services throughout all areas in town'; (2) that the by-law had been so understood for many years and had been acted on by the town in establishing playgrounds, police and fire stations, reservoirs, schools, and certain of the municipal parking lots; and (3) that the decision of the Superior Court in the Berger case had cast doubt on the long continued construction, thus (a) making 'presumably * * * illegally operated' four of the town's then existing parking areas and (b) indicating that the operation of a parking lot on the Fraser area would be illegal if such a parking lot were to be constructed. A majority of the town advisory committee felt that the proposed amendment was unnecessary and that the problem could be met by a rezoning of the area affected by the proposal to lease the Fraser land. A minority of the advisory committee in effect agreed with the planning board. The selectmen favored the amendment. The amendment was adopted by a special town meeting on November 28, 1955, and at that meeting it was also voted to confirm and renew authority previously granted to the selectmen to lease ² the Fraser land for the purpose of maintaining a municipal parking lot. The trial judge could also have found on the evidence that the town, in the Wellesley Square area, has had trouble with traffic and parking congestion which extends to the residential area behind the business zone and blights the residential area.

The petitioners saved an exception to the refusal to admit certain evidence (later discussed) and, also, at the close of the evidence, the petitioners requested rulings of law in general (1) that § 2 B 3, particularly in respect of its reservation to the town of what was in effect an exclusive privilege of operating parking lots in residence areas, was invalid (a) because arbitrary, unreasonable, and discriminatory, (b) because bearing no substantial relation to the promotion of public health, welfare, safety, convenience or morals, and (c) because parking lot operation is not a governmental function (requests numbered 1, 2, 5, 6, 11); and (2) that the town as lessee under the zoning by-law has only the rights to use land which the owner has (requests 7, 9, 10). The petitioners saved exceptions to the trial judge's refusal to grant such requests which he declined to give 'because they are either unnecessary, immaterial, inapplicable, contrary to the facts found by * * * [him] or contrary to law.' Two other requests (numbered 4, 8), also not given, are discussed later. The case is here on the petitioners' bill of exceptions.

Although the petition seeks a declaration of rights and injunctions based on the alleged general invalidity of the amendment of § 2 B 3 of the zoning by-law, the bill of exceptions indicates that the controversy arose principally because of the proposal of the town to lease the Fraser land. It could have been found (a) that Mrs. Fraser controlled property in the Wellesley Square area, in part leased to Wm. Filene's Sons Company and in part used for other purposes; (b) that Filene's had long been worried about parking because 'they cannot exist without it'; (c) that the Filene's lease was valuable to the town; (d) that Mr. Fraser, a member of the Wellesley planning board, was active, in the interest of himself and the town, in pressing for an arrangement by which Mrs. Fraser would make available land directly behind the Filene's store for lease by the town under the arrangement already described (see note 2, supra); (e) that it would not be desirable to use for parking other land in the business district 'because the business areas in Wellesley are very * * * few and * * * small * * * [and] should be used entirely for business'; (f) that there was another parking lot 'considerably more than 75 yards from the' proposed Fraser parking lot, which was not fully used except on Saturday afternoons and at Christmas; and (g) that the 'local condition * * * which would warrant the establishment of the Fraser parking lot was the very heavily travelled business area in the near vicinity.'

1. 'Every presumption is to be made in favor of' the amended § 2 B 3. 'The fact that the question is debatable does not empower the court to substitute its judgment' for that of the town. Cohen v. City of Lynn, 333 Mass. 699, 705, 132 N.E.2d 664, 668, and cases cited. The validity of the amendment must be sustained unless the petitioners sustain the heavy burden of showing that it is in conflict (a) with the provisions of G.L. (Ter.Ed.) c. 40A, inserted by St.1954, c. 368, § 2 (authorizing towns to enact zoning by-laws), or (b) with applicable constitutional provisions, on the ground that 'there is no substantial relation between it and the furtherance of any of the general objects' (see Lundy v. Town of Wayland, 328 Mass. 581, 583, 105 N.E.2d 378, 372 and cases cited) stated in the enabling legislation. These objects (see G.L. [Ter.Ed.] c. 40A, § 3) are (in part) 'to lessen congestion in the streets; to conserve health; to secure safety from fire * * * and other dangers; * * * to facilitate the adequate provision of transportation * * * schools, parks and other public requirements; to conserve the value of land and buildings; to encourage the most appropriate use of land * * * ; and to preserve and increase its amenities.'

It is now well settled that the 'provision of off-street parking spaces is a public purpose' under modern conditions. Tate v. City of Malden, 334 Mass. 507, 508, 136 N.E.2d 188, 190; Cabot v. Assessors of Boston, 335 Mass. 53, 64, 138 N.E.2d 618. As a general principle, and in the light of the testimony about the specific traffic congestion in or near the present or proposed Wellesley town parking lots, this court cannot say that the town meeting was arbitrary and unreasonable in revising its zoning by-law so as clearly to permit town parking lots even in residence zones. Whether the public necessity for traffic relief extended to residence zones, as well as to all other parts of the town, was a matter for the legislative determination of the town meeting, the members of which could exercise judgment in the light of their special knowledge of conditions in the town. See Burnham v. Board of Appeals of Gloucester, 333 Mass. 114, 117, 128 N.E.2d 772; Town of Concord v....