Pitman v. City of Medford

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 312 Mass. 618,45 N.E.2d 973
• Decision Date: 29 December 1942
• Parties: HARRY P. PITMAN & others v. CITY OF MEDFORD & others.

312 Mass. 618

45 N.E.2d 973

HARRY P. PITMAN & others v. CITY OF MEDFORD & others.

Supreme Judicial Court of Massachusetts, Suffolk.

December 29, 1942

November 12, 1942.

Present: FIELD, C.

J., DONAHUE, QUA COX, & RONAN, JJ.

Zoning. Land Court Jurisdiction, Parties, Zoning.

Jurisdiction Zoning. Notice. Waiver. Municipal Corporations, By-laws and ordinances.

The Land Court had jurisdiction to determine the validity of an amendment of a city zoning ordinance upon a petition under G. L. (Ter. Ed.) c.

240, Section 14A and c. 185, Section 1 (j 1/2), as inserted by St. 1934, c. 263, by the owner of land affected by the amendment seeking to have it declared valid, where the city filed an answer alleging that the amendment was valid, but others, admitted as respondents, contested the petitioner's claim and allegations.

Objections based on a failure to give notice to certain persons of a hearing before a municipal board were waived by such persons when some of them filed objections with the board to proposed action by it and all of them attended the hearing.

Any citizen acting in good faith may apply to the proper board of a city for an amendment of its zoning ordinance; the fact that such an applicant was only the holder of an option to purchase land which would be affected by the amendment did not render enactment of such an amendment invalid.

PETITION, filed in the Land Court on July 9, 1941. The case was heard by Smith, J.

F. A. Thayer, for the petitioners, submitted a brief.

J. H. Coakley, (J.

H. Coakley, Jr., with him,) for the respondents.

RONAN, J. This is a petition filed in the Land Court in accordance with G. L (Ter. Ed.) c. 240, Section 14A and c. 185, Section 1 (j 1/2), as inserted by St. 1934, c. 263, by the owners of five parcels of land and a person holding options to purchase them, to determine the validity of a zoning ordinance and the extent that said parcels are affected by said ordinance, passed by the board of aldermen and approved by the mayor of the respondent city of Medford, which purported to amend an ordinance by changing the zoning classification of the locus from an "apartment house district" to a "business district." One Maggio was permitted to intervene as a party respondent, and thereafter fifty-seven other persons appeared as respondents. Two of them filed a motion to dismiss, challenging the jurisdiction of the court. The judge allowed this motion in so far as the petition sought a review of any discretionary action by the city officials, and denied the motion in so far as it pertained to those portions of the petition that sought a determination of the "legality only of said officials." The judge found that the proceedings of the board of aldermen and the planning board were had in accordance with law and that the amendment to the zoning ordinance was valid and is in full force and effect. All parties excepting the city have taken exceptions to the rulings of the judge. Their bills of exceptions also refer to appeals having been taken by the parties, but no appeal by any party has been entered in this court. As the rulings to which the appeals were taken are included in the bills of exceptions we deal with them as presented by the exceptions.

We now consider the questions raised by the individual respondents. The locus is situated on Winthrop Square in Medford. It is bounded on three sides by public ways and on the fourth by private property, and comprises about five acres of land. The petitioner Churchill, who holds valid options for the purchase of all this land, is a straw for a department store owner, who, if the amendment is held to be valid, intends to purchase the land and to erect a department store on a portion of it and to use the remainder for a parking area, landscaping, driveways, and other accessory uses. The petitioners seek to have the amendment declared valid. The judge stated that, as a practical matter, one should have such assurance as the law allows that his land may be used for the contemplated purpose before he has incurred a large expenditure in the development of his plans. He ruled that the Land Court had jurisdiction to hear and decide the petition.

The individual respondents contend that the jurisdiction of the Land Court is limited to hearing only such petitions as are filed by a landowner who is aggrieved by a zoning ordinance which he contends unlawfully restricts the use and occupancy of his land, and that it does not extend to a petition, like the present, seeking an adjudication that the ordinance is valid, for in such a case the interests of the petitioners and the respondent city are not adverse and there is, therefore, no real controversy between the parties of which a court can take cognizance.

General Laws (Ter. Ed.) c. 240, Section 14A, in its present form, provides that "The owner of a freehold estate in possession in land may bring a petition in the land court against a city or town wherein such land is situated, which shall not be open to objection on the ground that a mere judgment, order or decree is sought, for determination as to the validity of a municipal ordinance, by-law or regulation, passed or adopted under the provisions of sections twenty-five to thirty A, inclusive, of chapter forty or under any special law relating to zoning, so called, which purports to restrict or limit the present or future use, enjoyment, improvement or development of such land, or any part thereof, or of present or future structures thereon, including alterations or repairs, or for determination of the extent to which any such municipal ordinance, by-law or regulation affects a proposed use, enjoyment, improvement or development of such land by the erection, alteration or repair of structures thereon or otherwise as set forth in such petition. The right to file and prosecute such a petition shall not be affected by the fact that no permit or license to erect structures or to alter, improve or repair existing structures on such land has been applied for, nor by the fact that no architects' plans or drawings for such erection, alteration, improvement or repair have been prepared. The court may make binding determinations of right interpreting such ordinances, by-laws or regulations whether any consequential judgment or relief is or could be claimed or not."

The statute authorizes the Land Court to render a declaratory judgment on the validity of a zoning ordinance or by-law and the extent to which it affects the land of a petitioner. Petitions under the statute must be brought against the city or town in which the land is situated. The respondent city is therefore the same body that is authorized by G. L. (Ter. Ed.) c. 40, Section 30B, inserted by St. 1938, c. 133, Section 2, to enforce the provisions of the zoning ordinances and by-laws. Lexington v. Bean, 272 Mass. 547 . Lexington v. Govenar, 295 Mass. 31 . Wilbur v. Newton, 307 Mass. 191 . And, whether in prosecuting a bill to enforce a local zoning regulation or in defending a petition for a declaratory judgment, the city or town acts in a governmental capacity, in the promotion of the public interest and in the protection of the public safety. Taunton v. Taylor, 116 Mass. 254. Worcester Board of Health v. Tupper, 210 Mass. 378 . Mayor of Cambridge v. Dean, 300 Mass. 174 . Saugus v. B. Perini & Sons, Inc. 305 Mass. 403. In similar proceedings it was said in Faulkner v. Keene, 85 N.H. 147, 153, that "the city represents its public. It appears in their behalf and asserts claims for their benefit"; and in National Transportation Co. Inc. v. Toquet, 123 Conn. 468, 482, it was remarked that "the municipality, made a party to the action, represents the residents and property owners within its boundaries."

Although the owners of lots in the vicinity of the locus were represented by the city, the judge, deeming them to be proper parties to the proceeding, Wood v. Building Commissioner of Boston, 256 Mass. 238; Bancroft v. Building Commissioner of Boston, 257 Mass. 82; Siegemund v. Building Commissioner of Boston, 259 Mass. 329 , ordered a citation to issue to show cause why the petition should not be granted. More than fifty...