Rousseau v. Building Inspector of Framingham

Decision Date21 April 1965
Citation206 N.E.2d 399,349 Mass. 31
PartiesAlbert J. ROUSSEAU, Jr. v. BUILDING INSPECTOR OF FRAMINGHAM et al. Albert J. ROUSSEAU, Jr. et al. v. BOARD OF APPEALS OF FRAMINGHAM et al. 1
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Edward M. Dangel, Boston, Dewey C. Kadra, Framingham, for Albert J. Rousseau, Jr., and others.

Morris Shapiro, Framingham, for Anna Shulman and others.

Joseph H. Lewis, Town Counsel, for the Building Inspector of Framingham and another, and Robert A. Belmonte, Framingham, ham, for the Board of Appeals of Framingham, with him.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, KIRK and REARDON, JJ.

KIRK, Justice.

We are called upon to review two cases which were tried together in the Superior Court. The first is a petition for a writ of mandamus to compel the building inspector of the town of Framingham (the town) to enforce, as applied to the locus, the zoning by-law of the town as it existed prior to an amendment adopted in 1958. The second is an appeal under G.L. c. 40A, § 21, from a decision of the board of appeals granting to owners of property within the locus a permit to construct a gasoline service station. The judge dismissed the petition for mandamus. He entered a decree upholding the board's decision granting the permit. An appeal in each case brings the cases to us.

The appellants in both cases are owners of property in the vicinity of the locus, which is in that section of the town known as Saxonville. Very roughly described, the locus may be said to be a triangular area, bounded on the south by the northerly side of School Street (part of a numbered route on which there is heavy traffic), bounded on the northwest by Cochituate Brook, which runs an irregular course and flows under School Street, and bounded on the northeast by a line, drawn southeasterly from a point on Cochituate Brook approximately 300 feet from the place it runs under School Street, at an angle of forty-five degrees, to its intersection with School Street. The land across from the locus on School Street is in a business district and is occupied by a shopping center. The land west of Cochituate Brook along School Street is an industrial district. In the latter district, commencing immediately to the west of the locus, are respectively, a restaurant, a parking lot, and a barber shop and office. To the north and northeast of the locus is a single residence district. The only building structure immediately adjacent to the locus is a recently built church on a hill to the east on School Street.

We consider first the petition for the writ of mandamus, brought by Rousseau on August 29, 1963. Other parties were permitted to intervene as parties respondent. 2 At issue in the mandamus case is the validity of an amendment to the zoning by-law adopted in 1958. We state the circumstances preceding and attending the adoption of that amendment. The locus had been zoned for residential use since the original zoning by-law was adopted by the town in 1939. The planning borad, in early March and prior to the 1958 amendment, conducted hearings on a preposed zoning amendment whereby the locus would become a business district. At the town meeting on March 14, 1958, the planning board reported as follows: 'Article 73. At a meeting held on March 6, 1958, the members of the Planning Board voted unanimously to ask the Town Meeting to refer this article back to the Planning Board for further study because of the fact that the Planning Board is undertaking a general study of the entire Saxonville area and the members of the Board feel that it would be inconsistent to make recommendations on any zoning changes at this time prior to the completion of the study.' With the above recommendation before it, the town, at the March 14 meeting, voted to rezone the locus as a business district.

Rousseau contends that the zoning by-law amendment of March 14, 1958, was invalid because there was no final report of the planning board as required under G.L. c. 40A, § 6. A similar contention was raised in Caputo v. Board of Appeals of Somerville, 330 Mass. 107, 111 N.E.2d 674. The report of the planning board set out in the Caputo case recited that a comprehensive review of the city's zoning was in progress and therefore that the board 'considers it inadvisable to recommend a spot zone change at this time. Such a recommendation by the planning board, if made now, would make extremely difficult the duty of this board to review fairly the zoning of the city as a whole.' 330 Mass. at 110, 111 N.E.2d at 676. The court held that the report constituted a final report with negative recommendations. The report in the Caputo case differs in no important respect from the report in the case before us. The report in the instant case was therefore a final report with negative recommendations within G.L. c. 40A, § 6.

Rousseau also contends that the by-law amendment was invalid because it effected spot zoning. We have recently set out the controlling principles involved in reviewing zoning so challenged (Lanner v. Board of Appeal of Tewksbury, Mass., 202 N.E.2d 777 a) and need not repeat them here. Our description of the locus and the surrounding properties leads us to the conclusion that the reasonableness of the 1958 amendment was fairly debatable. When this is so, much weight must be given to the decision of the town, and every presumption is to be made in favor of the validity of the by-law. Caires v. Building Com'r of Hingham, 323 Mass. 589, 594, 83 N.E.2d 550; Raymond v. Commissioner of Pub. Works of Lowell, 333 Mass. 410, 414, 131 N.E.2d 189; Lanner v. Board of Appeal of Tewksbury, Mass., 202 N.E.2d 777. b It has not been shown that the amendment singled out the locus for less onerous restrictions than those imposed on neighboring land whose characteristics are the same as those of the locus for the purpose of conferring an economic benefit on the owners of the rezoned land. Accordingly, it is our opinion that the amendment is valid. We need not consider whether the intervening change in the character of the locus--the construction of the restaurant subsequent to the zoning change but prior to this petition for mandamus--would itself bar relief. See Cohen v. City of Lynn, 333 Mass. 699, 705, 132 N.E.2d 664.

The judge was right in dismissing the petition for the writ of mandamus.

We now turn to consideration of the appeal wherein the board granted the permit, earlier denied by the building inspector, for the construction of a gasoline service station within the locus. The...

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