Sisters of Holy Cross of Mass. v. Town of Brookline

• Decision Date: 13 May 1964
• Citation: 198 N.E.2d 624,347 Mass. 486
• Parties: SISTERS OF the HOLY CROSS OF MASSACHUSETTS v. TOWN OF BROOKLINE. SISTERS OF the HOLY CROSS OF MASSACHUSETTS v. BOARD OF APPEALS OF BROOKLINE. . Norfolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 624

198 N.E.2d 624

347 Mass. 486

SISTERS OF the HOLY CROSS OF MASSACHUSETTS v. TOWN OF BROOKLINE.

SISTERS OF the HOLY CROSS OF MASSACHUSETTS v. BOARD OF APPEALS OF BROOKLINE.

Supreme Judicial Court of Massachusetts. Norfolk.

Argued Feb. 5, 1964.

Decided May 13, 1964.

Claude B. Cross, Boston (John M. Reed and Phillip Cowin, Town Counsel, with him) for defendants.

Charles F. Mahoney, Boston, for interveners.

Henry M. Leen, Boston, for plaintiff.

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

SPIEGEL, Justice.

The plaintiff, Sisters of the Holy Cross (Holy Cross), in one suit against the town of Brookline (the town) and the Building Commissioner of the town of Brookline (Commissioner) seeks a declaration under G.L. c. 231A that its land in Brookline is not subject to the zoning by-law of the town and that it is entitled to a permit for the construction of a multipurpose college building. The other suit is an appeal by Holy Cross under G.L. c 40A, § 21, from a decision of the Board of Appeals of the town of Brookline (board) denying the plaintiff's applications for a variance and a special permit allowing construction of the building. A number of owners of single family private residential property within the same zoning district as Holy Cross were granted leave to intervene.

The suits were consolidated for trial in the Superior Court and were heard upon a "Statement of Agreed Facts," testimony, and various exhibits introduced at the trial which were made a part of the statement of agreed facts. In the suit for declaratory relief the judge (1) ordered a decree to be entered declaring that (a) the land of Holy Cross "is for educational purposes which are religious and sectarian within the meaning of Section 2 of Chapter 40A of the General Laws"; (b) the laws of the town limit the use of Holy Cross's land "within the meaning of Section 2 of Chapter 40A of the General Laws, for an educational use which is religious and sectarian and are therefore invalid insofar as they apply to the said use of" Holy Cross's land; and (c) the action of the Commissioner in revoking the building permit was illegal, and (2)ordered the Commissioner to forthwith issue a permit for the construction of the building. From a final decree in accordance with the foregoing the town, the Commissioner, and the interveners appealed.

In the suit under G.L. c. 40A, § 21, a final decree was entered dismissing the bill, "provided, however, that if, upon appeal in * * * [the suit for declaratory relief] the Supreme Judicial Court should determine that the zoning by-laws of the Town of Brookline are valid and do apply to the * * * [plaintiff's] land, then, and in that event, the decision of the Board of Appeals in denying the variance and special permit is affirmed." Holy Cross appealed from this decree. The two suits are before us on a single record and the evidence is reported.

The record does not reveal any dispute over the pertinent facts. Holy Cross, a corporation organized under G.L. c. 180, is part of a religious order and operates a number of educational institutions, including three colleges, in thirty-two or thirty-three States. One of these colleges is the Cardinal Cushing College on Fisher Hill in Brookline which conducts a four year liberal arts course and a two year junior college course. Its student enrollment consists of 240 women. Over a period of years Holy Cross acquired parcels of land in the area of Fisher Hill. The college has 309,360 square feet of land in the area. There are a number of buildings on this land, the largest of which is known as Trinity Hall. This building contains the administration offices, seventeen classrooms, assembly hall, and the like. Other buildings are used as residences for the faculty and students. On October 31, 1961, Holy Cross applied for a permit to erect a three story building comprising a dormitory, chapel, student center and other facilities on the parcel located on Fisher Avenue and containing 168,856 square feet of land. (There is presently on this parcel a spacious Georgian style house called Marie Assunta Hall.) At that time the zoning by-law in effect limited the height of buildings in that location to two and one-half stories and forty-five feet. On May 21, 1962, a new application was submitted which contained the following notation: "This application is an amendment filed at the request of the building Commissioner. See original application Dated Oct. 31, 1961." A building permit was issued on the same day the new application was filed.

On May 23, 1962, at a special town meeting the then existing zoning by-law was stricken in its entirety and a new by-law was adopted. Under the new zoning by-law, the locus in question "lies partly in a S-15 and partly in a S-25 district." On May24, 1962, the Commissioner revoked the permit issued to Holy Cross "since the plans on file do not conform in all respects with the provisions of the new Zoning By-Law adopted May 23, 1962 or the Zoning By-Law in effect prior thereto, and to minimized disfigurement of the location." No appeal to the board was taken from the revocation. On June 1, 1962, Holy Cross commenced its suit for declaratory relief. On July 16, 1962, Holy Cross filed a new application for a building permit. This was denied and Holy Cross appealed to the board, requesting in its appeal "whatever variance * * * may be necessary to permit such construction." On August 7, 1962, an application for a special permit was filed with the board. The board concluded that a proper case under G.L. c. 40A, § 15(3), was not shown for granting "variances from the floor area ratio requirement of Section 5.00 ¹ or the yard requirement of Section 4.30 ² (Use 52)." The board also denied the application for a special permit for the reason that "a special permit for the desired use would be no good without the requested variances."

At the outset we consider the town's contention that "[t]he Superior Court had no jurisdiction to declare the by-law invalid." G.L. c. 185 § 1 (j 1/2), declares: "The land court shall be a court of record. It shall have exclusive original jurisdiction of the following matters: * * * Petitions under section fourteen A of chapter two hundred and forty ³ to determine the validity and extent of municipal zoning ordinances, by-laws and regulations." This language is simple and unambiguous. It does not appear to be modified in any way relevant to the matter before us by the language of G.L. c. 40A, § 22. ⁴ The first sentence of § 22 confers jurisdiction upon the Superior Court to enforce zoning by-laws adopted pursuant to the enabling act. "The ordinary meaning of 'enforce' is to 'compel obedience to,' 'to cause to be executed.' " Larson v. New England Tel. & Tel. Co.,141 Me. 326, 337, 44 A.2d 1; Ex parte Darnell, 262 Ala. 71, 81-82, 76 So.2d 770. Holy Cross in its bill does not ask that the court compel obedience to a zoning by-law but that it "enter a decree declaring that the land of the plaintiff * * * is not subject to the zoning by-laws of the Town of Brookline." The second sentence of § 22 confers jurisdiction upon the Superior Court to hear an information by the Attorney General "for a declaratory decree to determine the validity" of a zoning ordinance or by-law. This paragraph is not a grant of general jurisdiction to the Superior Court to hear suits for declaratory decrees to determine the validity of zoning by-laws; it is a grant of specific equity jurisdiction and must be strictly construed. Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 6 Pick. 376, 394-395, Jones v. Newhall, 115 Mass. 244 251-252. General Laws c. 231A, § 1, ⁵ does not expand the jurisdiction of the courts upon which it confers power to render declaratory decrees; the statute makes it clear that this power is conferred on the courts "within their respective jurisdictions. " Worcester County Natl. Bank v. Commissioner of Banks, 340 Mass. 695, 697, 166 N.E.2d 551; Executive Air Serv., Inc. v. Division of Fisheries & Game, 342 Mass. 356, 357-358, 173 N.E.2d 614.

Holy Cross observes in its brief, "[t]his Court has, in the past, heard cases brought in the Superior Court under the declaratory judgment procedure, involving the validity or applicability of a zoning ordinance." It cites the case of Publico v. Building Inspector of Quincy, 336 Mass. 152, 142 N.E.2d 767. In that case the issue of jurisdiction does not appear to have been raised by the litigants, and though the court did not raise the issue on its own account, it did not necessarily intend to assert jurisdiction. Paul Livoli, Inc. v. Planning Bd. of Marlborough, Mass., 197 N.E.2d 785, [ ^a Cf. Riley v. Board of Police Com'rs, 145 Conn. 1, 6, 137 A.2d 759. We distinguish the case of Leventhal v. Buehler, Mass., 191 N.E.2d 128, [ ^balso cited by Holy Cross, which concerned the plaintiffs' rights to compel the performance of a contract and only incidentally involved the validity of a zoning ordinance. In the instant case, we are of opinion that the Superior Court lacked jurisdiction to hear the suit for declaratory relief, but the substantive issues have been presented and argued, and in view of the public interest we express our views on these issues. Gamer v. Zoning Bd. of Appeals of Newton, Mass., 195 N.E.2d 772. [ ^c

The town argues that its "by-law validly regulates floor area ration and other dimensional matters under G.L. c. 40A, § 2." ⁶ This argument is based on several premises. It is contended that the statutory clause, "provided, however, that no ordinance or by-law which prohibits or limits the use of land for any church or other religious purpose or for any educational purpose * * * shall be valid" (the proviso), is concerned "solely with use of land rather than dimensional requirements." Perhaps there are instances in which, notwithstanding the proviso, a town may impose "dimensional requirements" upon buildings that serve...