Raymond v. Commissioner of Public Works of Lowell

• Decision Date: 03 January 1956
• Citation: 131 N.E.2d 189,333 Mass. 410
• Parties: Joseph P. RAYMOND and others v. COMMISSIONER OF PUBLIC WORKS OF LOWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 189

131 N.E.2d 189

333 Mass. 410

Joseph P. RAYMOND and others v. COMMISSIONER OF PUBLIC WORKS OF LOWELL.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 28, 1955.

Decided Jan. 3, 1956.

P. Harold Ready, Lowell, for petitioners.

James D. O'Hearn, Lowell, City Sol., for respondent.

Before QUA, C. J., and RONAN, WILKINS, WILLIAMS and WHITTEMORE, JJ.

WHITTEMORE, Justice.

The petitioners sought by mandamus to require the commissioner of public works of the city of Lowell to enforce the zoning ordinance of the city as it stood prior to an amendment passed by the city council on June 15, 1954.

This is an appeal of the petitioners under G.L. (Ter.Ed.) c. 213, § 1D, inserted by St.1943, c. 374, § 4, from the final judgment of the Superior Court dismissing the petition as a matter of law on the report of the auditor, whose findings of fact were final.

There was no error.

The amendment of June 15, 1954, classified as an industrial zone an area on the easterly side of Chelmsford Street which, with the exception of two small parcels available for local business purposes, had since the adoption of the ordinance in 1926 been classified as a zone in which residences not over 35 feet high were permitted.

The subject area extended from Wellman Street South to the Chelmsford line, a distance of 2700 feet, and extended back from the street 400 feet. It was bounded on the east by an industrial zone of the same classification as was applied to it by the amendment. The land across Wellman Street opposite the subject area remained in a residential classification.

It is not claimed that the necessary legal formalities of an amendment were not met.

The auditor found in part as follows: 'In passing the amendment the council acted in good faith and for what it believed to be the best interests of the city. They did not pass it as a means of evading an attack on a spot zone, or merely to attract the Microwave Associates to the city. They acted on the honest belief that the time had come to make all of that part of the southwestern corner lying east of Chelmsford Street available for manufacturing and business. I find that proper consideration was given to the characteristics of the city, and that the council could reasonably conclude that the corner, including the 400 foot strip formerly classed as residential, was mercantile rather than residential, and that making this strip as well as the land in its rear a business district would tend to encourage the most appropriate use of the land. The council could also find that such a change was one way of furthering the economic advancement of the city. The thought could readily occur to them that nearness to new Route 3, the main highway to the north and the interchange with Route 110, together with the possibility of frontage on the through highway, Route 110, would be an added attraction to manufacturers or business men considering the location of their plants or offices.'

The other facts found by the auditor support these findings.

From all the facts found the auditor concluded: 'I find that the amendment of June 15, 1954, to the zoning ordinance is within the scope of the powers given the city by G.L. c. 40, § 25 (as the law then stood), and that it has a substantial relation to the objects permitted by this statute.' So far as this statement embodied a ruling of law it is correct. Factually and legally this conclusion is required by the facts found.

In view of all the findings it is not significant that the occasion for considering an amendment was the indicated desire of Microwave Associates, Inc., to move to Lowell and use a portion of the subject area for its plant. Self-interest of some one often spurs consideration of a change in such an ordinance as this. In fact, here it was the Lowell industrial commission created by St.1951, c. 330, for the promotion and development of the industrial resources of Lowell which was actively promoting the amendment. This vouches general public interest beyond Microwave's private concern, but the case would stand the same in this respect even if the commission had not been involved. Caires v. Building Commissioner of Hingham, 323 Mass. 589, 595-596, 83 N.E.2d 550. The findings of the auditor as to why the council enacted the amendment are controlling.

The fact that there was other land in the city available for manufacturing did not mean that the subject area had to be kept in a residential classification. Passing other facts which were relevant, the conclusion, which the auditor found was open to the council, that the subject area was 'mercantile...