Town of Burlington v. Dunn

• Decision Date: 07 May 1945
• Citation: 61 N.E.2d 243,318 Mass. 216
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: TOWN OF BURLINGTON v. HERBERT O. DUNN & another.

318 Mass. 216

61 N.E.2d 243

TOWN OF BURLINGTON v. HERBERT O. DUNN & another.

Supreme Judicial Court of Massachusetts, Middlesex.

May 7, 1945

February 5, 1945.

Present: FIELD, C.

J., LUMMUS, QUA DOLAN, & SPALDING, JJ.

Zoning. Constitutional Law, Zoning.

Notice. Municipal Corporations, Public hearing, Planning board, Town meeting. Burlington.

Publication of a notice of hearing in a newspaper four days before a public hearing by the planning board of a town respecting a proposal for a zoning by-law was not as a matter of law noncompliance with G. L. (Ter.

Ed.) c. 40, Section 27, as appearing in St. 1941, c. 320, requiring "due notice." The planning board of a town complied with the requirement of G. L. (Ter.

Ed.) c. 40, Section 27, as appearing in St. 1941, c. 320, for "a public hearing" respecting a proposal for a zoning by-law, by holding only one public hearing, although after such hearing and the approval by the board of a by-law with an accompanying map for insertion in the warrant for a town meeting, and such insertion, the board amended the map and submitted only the amended map with its final report and recommendations to the town meeting. The provisions of G. L (Ter. Ed.) c. 39, Section 10, as last amended by

St. 1939, c.

182, that the warrant for a town meeting "shall state . . . the subjects to be acted upon" at the meeting and that "no action shall be valid unless the subject matter thereof is contained in the warrant," mean only that the subjects to be acted upon must be sufficiently stated in the warrant to apprise the voters of the nature of the matters with which the meeting is authorized to deal, and do not require that the warrant contain an accurate forecast of the precise action which the meeting will take upon those subjects. Per QUA, J. Under G. L. (Ter. Ed.) c. 39, Section 10, as amended, and c. 40, Section

27, as appearing in St. 1941, c. 320, a town meeting, summoned to consider the adoption of a proposed zoning by-law and accompanying map set forth in the warrant for the meeting, might validly adopt the by-law and map with perfecting amendments.

A provision of the zoning by-law of Burlington, a small residential town near the city of Boston, forbidding the use of land in a residence district for the purpose of stripping and carrying away the top soil, was not unreasonable nor unconstitutional as applied to tracts of vacant land aggregating about forty-five acres located within half a mile of a number of residences.

Under G. L. (Ter Ed.) c. 40, Section 26, as inserted by St. 1933, c. 269,

Section 1, a zoning by-law of a town, placing about forty-five acres of vacant land in a residential district in which use for the purpose of stripping and carrying away the top soil was forbidden, did not prohibit stripping incidental to the operation of a gravel pit as it existed and was operated on a small part of the tract at the time of the adoption of the by-law, but did prohibit stripping from the remainder of the tract.

BILL IN EQUITY, filed in the Superior Court on May 17, 1944. The case was heard by Baker, J.

J. H. Devine, (J.

R. Spence with him,) for the defendants.

J. J. Moss, for the plaintiff.

QUA, J. This bill is brought to enforce the town's zoning by-law by restraining the defendants from removing the top soil or loam from two tracts of land, one of forty-one acres and one of four and a half acres, both located on Bedford Street in the plaintiff town. The facts appear from the pleadings and from an agreed statement of facts in which are incorporated certain exhibits. The trial judge ordered a decree for the plaintiff and reported the case.

1. The defendants contend that the by-law is invalid because the statutory process by which alone a valid zoning ordinance or by-law can be adopted was not followed in three respects.

(a) General Laws (Ter. Ed.) c. 40, Section 27, as appearing in St. 1941, c 320, provides in part that no such ordinance or by-law shall be adopted until after the planning board, if there is one in the town, "has held a public hearing thereon after due notice given and has submitted a final report with recommendations to the . . . town meeting . . .." It is contended that "due notice" was not given of the hearing held by the planning board on July 7, 1943, because the notice was published only four days before that day.

What is the most effective time for giving notice of such a hearing may be open to question. It is possible to give notice too early as well as too late. Circumstances may differ in different towns. We do not know how often the paper in which the notice appeared was published. In

Rand v. Wilder, 11 Cush. 294, it was held that the notice of a town meeting posted one week before the meeting was seasonably given. It was not held that a shorter notice might not suffice. We do not imply that it would in relation to a town meeting. But a hearing before a planning board is quite different. The planning board could finally settle nothing. Its duties were preliminary and advisory only. Any person interested could present his views to the town meeting later. We are not prepared to rule that this notice was insufficient. We have dealt with this issue without considering whether it might be foreclosed against the defendants by the statement in the agreed facts that public notice of the hearing was "duly given."

(b) After the hearing on July 7 a proposed zoning by-law in which the districts were delineated by reference to an accompanying map was approved by the planning board for insertion and was inserted in a warrant for a special town meeting to be held on August 25. Before the town meeting, however, the planning board held two more meetings of which no public notice was given and as a result of which the board decided to change the map inserted in the warrant by zoning for business purposes five additional small parcels of land in scattered locations, none of which appears to have affected in any way the tracts involved in this litigation. The final report submitted by the planning board to the town meeting was accompanied by the amended map showing these changes. The defendants contend that the planning board should have held another hearing upon the proposed by-law as changed.

We see no necessity for this. The planning board, after adequate notice, held a hearing on the proposed by-law and submitted its final report with recommendations to the town meeting. The board therefore complied with the statute. This is true whether the action of the board be construed as a recommendation of the original map or of the amended map. There is nothing in the statute requiring another hearing whenever, after one hearing, the board decides to amend what had previously been proposed. The amendments were not of a fundamental character.

They did not change the identity of the proposal before the board. They were designed merely to perfect that proposal. From their terms it is apparent that they were intended to preserve permanently for business uses certain lots on which business was already being conducted. They could not deprive any landowner of any right which he already possessed, since no zoning by-law at all was then in force. Where a public hearing is required or is had before an officer or board upon a proposed measure it is at least very unusual to require or to hold successive public hearings in respect to perfecting amendments of this character. The decision in Nelson v. Belmont, 274 Mass. 35 , 42-44, required by the wording of G.L.c. 40, Section 30, as amended by St. 1926, c. 216, has no application to the very different wording of the present Section 27 as it appears in St. 1941, c. 320. See St. 1929, c. 39; St. 1933, c. 269, Section 1.

(c) At the town meeting on August 25 the town voted to adopt the by-law together with the amended map. The defendants contend that the vote was invalid because the map as adopted differed from that inserted in the warrant with respect to the five parcels mentioned above.

General Laws (Ter. Ed.) c. 39, Section 10, as last amended by St. 1939, c. 182, includes provisions that the warrant "shall state . . . the subjects to be acted upon" at the meeting and that "no action shall be valid unless the subject matter thereof is contained in the warrant." This means only that the subjects to be acted upon must be sufficiently stated in the warrant to apprise voters of the nature of the matters with which the meeting is authorized to deal. It does not require that the warrant contain an accurate forecast of the precise action which the meeting will take upon those subjects. Haven v. Lowell, 5 Met. 35, 40-41. Grover v. Pembroke, 11 Allen, 88, 89. Sherman v. Torrey, 99 Mass. 472 . Whitney v. Stow, 111 Mass. 368 , 370. Wood v. Jewell, 130 Mass. 270 , 271. Matthews v. Westborough, 131 Mass. 521 , 522, 523. Coffin v. Lawrence, 143 Mass. 110 . Tuckerman v. Moynihan, 282 Mass. 562 , 565. The case of Fitzgerald v. Selectmen of Braintree, 296 Mass. 362 , dealt with a very different situation. Moreover, G. L. (Ter. Ed.) c. 40, Section 27, as appearing in St.

1941, c. 320, contains a provision that the "town meeting may adopt, reject, or amend and adopt any such proposed . . . by-law," showing that the by-law as adopted need not exactly follow any proposal set forth in the warrant.

2. The defendants contend that the by-law is invalid because unconstitutional as applied to the removal of the loam from their land. It places their land in a district zoned for residence under regulations which would forbid its use for the purpose of stripping and carrying away the surface soil, whether or not for sale (Sections 8, 9). Saugus v. B. Perini & Sons, Inc. 305 Mass. 403 , 407.

It is true that art. 60 of the Amendments to the...