Town of Canton v. Bruno

• Decision Date: 18 April 1972
• Parties: TOWN OF CANTON v. Nicholas BRUNO et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 87

282 N.E.2d 87

361 Mass. 598

TOWN OF CANTON v. Nicholas BRUNO et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Sept. 17, 1971.

Decided April 18, 1972.

Eugene J. Galligan, Town Counsel, for plaintiff.

Joseph G. Galligan, Jr., Canton (Thomas W. Crosby, Boston, with him), for defendants.

Before TAURO, C.J., and CUTTER, REARDON, BRAUCHER and HENNESSEY, JJ.

TAURO, Chief Justice.

By this bill in equity under G.L. c. 40A, § 22, as amended, the town seeks to enjoin the defendants from excavating or removing, or permitting the excavation or removal of, gravel or other earth material from land owned by them in violation of Canton's zoning by-law. A master's report was confirmed and the case is reported without decision by a judge of the Superior Court. G.L. c. 214, § 31.

1. The issue is whether the defendants are entitled to claim a prior nonconforming use. G.L. c. 40A, § 5. ¹ The original Canton zoning by-law adopted on March 8, 1937, contained no reference to the removal of sand and gravel, and the by-law precluded any use of property not expressly allowed in it. Concerning the discontinuance of nonconform-uses, the by-law provided in relevant part as follows: 'In residence districts, when a non-conforming use has been discontinued for a period of two years, it shall not be reestablished and future use shall be in conformity with this By-Law.' From 1937 to March, 1960, the defendants' land was in a residential district. ² In the 1930's, a portion of the land was used as a gravel pit. This use, however, was discontinued in 1936, prior to the adoption of the original zoning by-law, and there was no further gravel removal until 1945. Thereafter, there was continuous removal of sand and gravel by prior owners and, since 1956, when the defendants acquired title, by the defendants. An order temporarily restraining the defendants from further operation was issued at the commencement of this suit in May, 1967. Since 1950, the removal of soil, loam, sand, and gravel from any land in Canton has been subject to a special permit requirement under certain earth removal regulations in the zoning by-law. ³ The defendants, however, never applied for a permit in the belief that, by virtue of G.L. c. 40A, § 5, and the terms of the present zoning by-law, ⁴ they were entitled to continue the removal of gravel as a prior nonconforming use.

Whether the defendants' claim has merit depends upon the legal status of the excavation from 1945 until the adoption of the special permit requirement in 1950. The defendants contend that the original Canton zoning by-law, which, by implication, prohibited gravel pits, was not validly adopted in 1937, and that curative legislation enacted by the Legislature (St.1949, c. 178) was not retroactive in effect. For these reasons, they maintain that in 1945, their predecessor in title had the right to ree stablish the sand and gravel operation discontinued in 1936. The town argues to the contrary.

2. We turn first to whether the original Canton zoning by-law was validly adopted in 1937. If we conclude that it was, we need not consider the effect of the curative legislation. St.1949, c. 178.

The statute governing the adoption of zoning by-laws in 1937 was G.L. c. 40, § 27 as appearing in St.1933, c. 269, § 1 (now G.L. c. 40A, § 6, as amended through St.1968, c. 194). It provided in relevant part as follows: 'Such ordinances or by-laws may be adopted and from time to time be changed by amendment, addition or repeal, but only in the manner hereinafter provided. No ordinance or by-law originally establishing the boundaries of the districts or the regulations and restrictions to be enforced therein, and no ordinance or by-law changing the same as aforesaid, shall be adopted until after the planning board, if any, or, in a town having no such board, the board of selectmen, has held a public hearing thereon after due notice given and has submitted a final report with recommendations to the city council or town meeting; provided, that, in case of a proposed ordinance or by-law originally establishing the boundaries of the districts or the regulations and restrictions to be enforced therein, it shall be sufficient if a public hearing is held and a final report with recommendations submitted by a zoning board appointed for the purpose by the city council or selectmen' (emphasis supplied).

In so far as is pertinent here, the master found that the original Canton zoning bylaw was adopted in the following manner: At a town meeting held on July 16, 1936, it was voted to form a zoning board 'to take all steps necessary to present a set of complete town zoning laws at the next special or annual town meeting.' The vote provided that this board consist of seven members, two appointed by the planning board, two by the warrant committee, two by the taxpayers' association, and one by the board of selectment. A board was formed in accordance with the vote and, after causing notice to be published in the Canton Journal, it held a public hearing on November 9, 1936. A week later, on November 16, 1936, the board submitted a report to a special town meeting which accepted the report but postponed consideration for the time being. Subsequently, the zoning board, together with the planning board, held two additional public hearings after appropriate notice was given in the town newspaper. On March 8, 1937, the zoning board submitted a final report to the annual town meeting, which voted to adopt the zoning by-law recommended in the board's report. The zoning by-law was approved by the Attorney General and published three times in the town newspaper in accordance with law. See G.L. c. 40, § 32, as amended by St.1933, c. 185, § 1 (now G.L. c. 40, § 32, as amended through St.1967, c. 308).

From these findings it appears that the board which prepared the original zoning by-law was not constitued in accordance with the Zoning Enabling Act. Under G.L. c. 40, § 27, as appearing in St.1933, c. 269, § 1, the function of recommending zoning by-laws was assigned to the planning boards in towns with such boards, with the proviso that, in the case of proposals for original zoning by-laws, the towns could utilize special boards appointed by the selectmen. Compare G.L. c. 40A, § 6, as amended through St.1968, c. 194. The sole function of the town meeting was to act upon the final report and recommendations of the planning board or, as the case might be, the special board appointed by the selectment. G.L. c. 40, § 27, as appearing in St.1933, c. 269, § 1. See Barrett v. Building Inspector of Peabody, 354 Mass. 38, 45, 234 N.E.2d 884; Poremba v. Springfield, 354 Mass. 432, 436, 238 N.E.2d 43; Hardy, Municipal Law, § 349. In the instant case, these procedures were not followed. By vote of the town meeting, a special board was established consisting of representatives of four separate groups and including only one person named by the selectmen. While it was permissible to utilize a special board, the town meeting had no authority to designate a method of selection contrary to the method prescribed by the Legislature. Under the Zoning Enabling Act, it lay only in the selectment to appoint the membership of the special board. G.L. c. 40, § 27, as appearing in St.1933, c. 269, § 1.

The town urges us to adopt a doctrine of substantial compliance. We believe, however, that the Legislature mandated a rule of strict compliance by the plain language, '(Zoning) ordinances or by-laws may be adopted . . . but only in the manner . . . provided' (emphasis supplied). G.L. c. 40, § 27, as appearing in St.1933, c. 269, § 1. ⁵ We said in Leahy v. Inspector of Bldgs. of New Bedford, 308 Mass. 128, 131, 31 N.E.2d 436, 438: 'The General Court was empowered by art. 60 of the Amendments to the Constitution of this Commonwealth 'to limit buildings according to their use or construction to specified districts of cities and towns.' The Legislature could itself exercise this power and establish such districts in any city or town . . . (see) Bradley v. Zoning Adjustment Board of Boston, 255 Mass. 160, 150 N.E. 892, or it could delegate the power to create such local districts to the legislative branch of a city government and to the voters of a town. Spector v. Building Inspector of Milton, 250 Mass. 63, 145 N.E. 265. But the Legislature could determine the extent of the power granted . . . and prescribe the terms and conditions under which it could be exercised, and action taken beyond the authority conferred or not in compliance with the terms and conditions governing its exercise would be invalid.' See Whittemore v. Town Clerk of Falmouth, 299 Mass. 64, 68--69, 12 N.E.2d 187; Fish v. Canton, 322 Mass. 219, 222, 77 N.E.2d 231; Atherton v. Selectmen of Bourne, 337 Mass. 250, 254--256, 149 N.E.2d 232; Kitty v. Springfield, 343 Mass. 321, 324--327, 178 N.E.2d 580; HALLENBORG V. TOWN CLERK OF BILLERICA, MASS., 275 N.E.2D 525;^A Hardy, Municipal Law, §§ 151, 164. ⁶ Compare Durand v. Superintendent of Pub. Bldgs. of Fall River, 354 Mass. 74, 76--77, 235 N.E.2d 550.

While we have said that a court will consider 'whether an asserted minor noncompliance in fact is significantly inconsistent with, or prejudicial to, the apparent legislative objectives of the prescribed procedures (for adopting zoning by-laws)' (Hallenborg v. Town Clerk of Billerica, supra, at ---, ^b 275 N.E.2d at 529), we cannot say here that there was no important legislative purpose in the statutory provision concerning the manner of selecting a special zoning board. 'The intent of the statute is to be ascertained from all its terms and parts . . ..' Tilton v. Haverhill, 311 Mass. 572, 577--578, 42 N.E.2d 588, 591. Read as a whole, the statutory provision under consideration evinces a legislative intent to place the recommending and legislative functions in separate municipal bodies. G.L. c. 40, § 27, as appearing in St.1933, c. 269, § 1. See Planning Bd. of Reading v....