Senkarik v. Attorney General

• Decision Date: 07 April 1970
• Citation: 257 N.E.2d 470,357 Mass. 211
• Parties: John SENKARIK v. ATTORNEY GENERAL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 470

257 N.E.2d 470

357 Mass. 211

John SENKARIK v. ATTORNEY GENERAL.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Feb. 6, 1970.

Decided April 7, 1970.

Anthony N. Compagnone, Milford, for petitioner Senkarik.

Robert H. Quinn, Atty. Gen., and David C. Hawkins, Sp. Asst. Atty. Gen., for respondent.

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

SPALDING, Justice.

On December 18, 1967, the town meeting of Uxbridge adopted an amendment of its zoning by-law that would allow the zoning board of appeals to grant a permit for construction of apartment houses anywhere in the town. The only restriction on the granting of such permit was that the board must consider the effects of a permit on the neighborhood and town at large.

Under G.L. c. 40, § 32, the amendment was submitted to the Attorney General for his approval. On March 15, 1968, the Attorney General disapproved the amendment on the ground that it authorized spot zoning, in violation of G.L. c. 40A, § 2, and the principles stated in Smith v. Fall River, 319 Mass. 341, 65 N.E.2d 547. The petitioner, John Senkarik, a landowner and taxpayer of Uxbridge, then brought this petition for a writ of mandamus against the Attorney General, alleging that his disapproval was unreasonable, arbitrary and capricious. The petition prayed that the disapproval be quashed. The judge in the court below heard the case on a statement of agreed facts and denied the petition. The petitioner appealed. G.L. c. 213, § 1D.

There was no error.

General Laws c. 40, § 32, empowers the Attorney General to approve or disapprove a by-law submitted to him. A by-law may also become effective if the Attorney General fails to act seasonably on a request for approval. The petitioner does not contend that the Attorney General failed to carry out a statutory duty by not acting on the request for approval (which would in any case have rendered to amendment effective). Rather, his argument is that the Attorney General has acted but did so incorrectly, and he seeks in substance a review of the decision. Mandamus, however, is not the appropriate remedy for the relief the petitioner seeks. The Attorney General's disapproval was authorized by statute and based on legal grounds, as is apparent from his letter of disapproval attached to the agreed statement of facts. It is well settled that mandamus cannot be used to review a purely legal determination thought to be erroneous. Howe v. Attorney Gen., 325...