Town of Chelmsford v. DiBiase

• Decision Date: 06 April 1976
• Citation: 345 N.E.2d 373,370 Mass. 90
• Parties: TOWN OF CHELMSFORD et al. 1 v. Elio DiBIASE et al., trustees, et al. 2 (and a companion case). 3
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 373

345 N.E.2d 373

370 Mass. 90

TOWN OF CHELMSFORD et al. ¹

v. Elio DiBIASE et al., trustees, et al. ² (and

a companion case). ³

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 4, 1976.

Decided April 6, 1976.

Charles G. Kadison, Jr., Acton (Louis N. Levine, Acton, with him), for Elio DiBiase and another, trustees, and another.

Clement McCarthy, Town Counsel, Boston, for the Town of Chelmsford and another.

Danielle E. deBenedictis, Sp. Asst. Atty. Gen., for the Housing Appeals Committee in the Dept. of Community Affairs.

Before REARDON, BRAUCHER, KAPLAN and WILKINS, JJ.

BRAUCHER, Justice.

An application was filed with the board of appeals of Chelmsford (board) for a comprehensive permit to build low and moderate income housing on a tract of about forty-eight acres, pursuant to G.L. c. 40B, §§ 20--23, inserted by St.1969, c. 774, § 1, sometimes called the Anti-Snob Zoning Act. See Rodgers, Snob Zoning in Massachusetts, 1970 Ann.Surv. of Mass.Law § 18.2. Shortly thereafter a special town meeting voted to take the tract by eminent domain for conservation purposes, and an order of taking was made and recorded. A judge of the Superior Court has found that the taking was made in good faith and for a public purpose. He ruled that the filing of the application did not prevent the subsequent taking, and judgments were entered declaring that the tract was legally taken. Under G.L. c. 40B, § 20, the board and the Housing Appeals Committee in the Department of Community Affairs (HAC) had authority to override local 'requirements and regulations,' including zoning by-laws, if not 'consistent with local needs.' Board of Appeals of Hanover v. Housing Appeals Comm. in the Dep't of Community Affairs, 363 Mass. 339, 354--355, 294 N.E.2d 393 (1973) (Hanover case). But we now hold that 'requirements and regulations' do not include a taking made in good faith and for a public purpose, and affirm the judgments. If the power of eminent domain, granted by the Legislature, is to be overridden in this way, the Legislature must confer the necessary authority.

The cases were heard on the pleadings and a statement of agreed facts, and the judge made findings, rulings, and an order for judgments. The warrant for a special town meeting on June 28, 1971, proposed that the town take the tract by eminent domain for conservation purposes, but the meeting was adjourned for want o a quorum. A second special town meeting voted on November 22, 1971, to take the tract for conservation purposes, but town counsel ruled that the vote was invalid. On December 6, 1971, the owner of the tract was D & B Builders, Inc. (D & B), and the trustees of the Riverside Realty Trust (Riverside) were the owners by agreement; on that day Riverside for the first time submitted to the board its application for a comprehensive permit. Notice of a public hearing before the board on the application was published on December 16, 1971; on the same day the selectmen of the town posted a notice for a special town meeting to be held December 27, 1971, for the stated purpose of taking the tract for conservation purposes. The town meeting was held as advertised and the taking voted; an order of taking was executed by the selectmen immediately after the meeting and recorded the next morning.

The board held its hearing on the Riverside application on January 5, 1972 as advertised, despite town counsel's opinion that the tract belonged to the town. The board denied the permit on February 9, 1972, and Riverside took a timely appeal to HAC. HAC denied a motion to dismiss the appeal, held hearings, and on May 10, 1974, granted the comprehensive permit to Riverside. HAC did not decide the issue of the validity of the taking, but left questions relating to title to the courts. The board did not seek judicial review of the HAC decision under G.L. c. 30A, as permitted by G.L. c. 40B, § 22.

Meanwhile, on August 8, 1972, the town and the board sought a declaratory judgment in the Superior Court to determine title to the tract and to determine the jurisdiction of HAC. That court denied an application for a temporary injunction against the HAC hearings. The defendants in that action were Riverside, D & B, a mortgagee of the tract and HAC. On December 18, 1973, Riverside and D & B brought a suit against the town and the selectmen for a declaratory judgment determining that the taking by the town was void or that the time for filing a petition for assessment of damages was stayed until six months after final determination of the two suits. The two suits were consolidated by consent, and were decided together on May 30, 1975.

The judge pointed out that none of the pleadings in either case raised any issue as to whether the taking was for a legitimate public purpose or was not in good faith and for a public benefit, and that there were no facts alleged or agreed on which to base a finding or ruling that the taking was not for a public purpose or was not in good faith. He therefore found that the taking was made in good faith and for a public purpose. Judgments were entered in both cases declaring that the tract was legally taken by the town on December 28, 1971, that the HAC grant of a comprehensive permit to Riverside was void, and that the time for filing a petition for assessment of damages under G.L. c. 79, § 18, is extended until six months after the final determination of these cases. Riverside, D & B, the mortgagee and HAC appealed, and we allowed an application for direct appellate review.

The parties present to us the single issue whether G.L. c. 40B, §§ 20--23, prohibited the town from making the...