Shannon v. Building Inspector of Woburn
| Citation | 105 N.E.2d 192,328 Mass. 633 |
| Parties | SHANNON et al. v. BUILDING INSPECTOR OF WOBURN. |
| Decision Date | 10 April 1952 |
| Court | United States State Supreme Judicial Court of Massachusetts |
J. J. Fitzpatrick, Boston, for petitioners.
W. F. Farr, Boston, S. M. Kalberg, Jr., Boston, for intervener.
J. E. Henchey, City Sol., Woburn, for respondent.
Before QUA, C. J., and LUMMUS, WILKINS, SPALDING and WILLIAMS, JJ.
The three petitioners own as tenants in common thirteen acres of vacant land in Woburn in an area which was rezoned by the city council by an amendment to the zoning ordinance adopted on June 7, 1951. The petition is for a writ of mandamus to compel the respondent to enforce the zoning ordinance as it existed before the amendment of June 7, 1951, and to revoke a building permit granted by him to Thomas Worcester, Inc., for the construction of a factory and office on land within one of the rezoned areas, to be occupied by the intervener, Sylvania Electric Products, Inc. The amendment of June 7, 1951, rezoned three areas from residential to manufacturing, and four from residential to business. The land upon which the factory and office are to be built was rezoned from residential to manufacturing.
The present petition for a writ of mandamus was filed on June 15, 1951. Sylvania Electric Products, Inc., intervened on July 3, 1951, by leave of court. In the Superior Court the judge made findings of fact, and ordered final judgment dismissing the petition, which was duly entered on August 9, 1951. The petitioners appealed. The evidence is reported.
By G.L. (Ter.Ed.) c. 40, § 27, as it appears in St.1941, c. 320, the following requirements, which appear to be conditions precedent, Whittemore v. Town Clerk of Falmouth, 299 Mass. 64, 12 N.E.2d 187, are made for an amendment to a zoning ordinance. First, the planning board must hold a public hearing, after due notice given, and submit a final report with recommendations. Next, the city council or a committee thereof must hold a public hearing at which all interested persons shall be given an opportunity to be heard after at least twenty days' notice of the time and place of the hearing published in a newspaper of general circulation in the municipality. Next, the adoption of the amendment shall be by a two-thirds vote of all the members of the city council.
The petitioners contend that the planning board did not submit 'a final report with recommendations' to the city council, as required by the statute. The planning board, by a majority, reported that it 'recommends the passage of the rezoning' amendment, for the 'best interest of the city of Woburn, as a whole.' But it stated that 'the reasons in detail for the majority report will be made to the city council at a later date.' The statute requires recommendations, not reasons for recommendations. The recommendations were that the amendment be adopted. The detailed reasons were sent by the planning board to the city council on May 31, 1951, and received not later than June 1, 1951, before the hearing given by the city council on June 7, 1951. We think the statute was satisfied.
The ordinances of Woburn make it the duty of the planning board, upon petition of certain property owners 'or upon its own initiative,' to hold a public hearing for the consideration of any amendment to the zoning ordinance. The petitioners contend that, as the amendment in question was referred to the planning board by the city council at the suggestion of the mayor, the ordinances were violated. The planning board ordered and held a public hearing, and there is nothing to show that it did so unwillingly or under compulsion. The requirement that it act 'upon its own initiative' does not mean that it may not adopt the suggestions of others.
The main question is whether on the merits the amendment to the zoning ordinance was authorized by the statute. The relevant statute is G.L. (Ter.Ed.) c. 40, § 25, as it appears in St.1933, c. 269, § 1. Under that statute a zoning ordinance may divide a city into districts and may regulate and restrict the erection or use of buildings or the use of land within the several districts for the purposes of lessening street congestion, of securing safety from fire and other dangers, of preventing overcrowding and undue concentration of population, of facilitating adequate provision for transportation, water, sewerage, schools, parks, and other public requirements, and of increasing the amenities of the city. ...
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