Town of Concord v. Attorney General

• Decision Date: 06 May 1957
• Citation: 142 N.E.2d 360,336 Mass. 17
• Parties: TOWN OF CONCORD et al. v. ATTORNEY GENERAL (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 360

142 N.E.2d 360

336 Mass. 17

TOWN OF CONCORD et al. v. ATTORNEY GENERAL (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 3, 1957.

Decided May 6, 1957.

Roger P. Stokey, Boston (Robert E. Goodwin and Marshall Simonds, Boston, with him), for petitioner.

Joseph H. Elcock, Jr., Asst. Atty. Gen., for respondent.

Before WILKINS, C. J., and RONAN, SPALDING, COUNIHAN and CUTTER, JJ.

WILKINS, Chief Justice.

A purported amendment of a provision of the zoning by-law of the town of Concord was disapproved by an order of the Attorney General. The petitioners are the town and Macone Brothers, Inc., who own all the land the rezoning of which is in dispute. The petitions are respectively for a writ of mandamus and for a writ of certiorari, the main prayer in each being for a direction to the respondent to 'revoke ab initio, quash and expunge' the order. To each petition the respondent demurred, the first ground being failure to allege facts on which the requested relief can be granted and four others being procedural. The cases are here upon a reservation and report without decision by a single justice.

The petitions contain substantially identical allegations, which may be summarized as follows: On June 18, 1956, the voters, at a special town meeting duly called and held, unanimously voted to amend s. 1(e) of the zoning by-law by deleting two paragraphs from a subsection entitled 'business districts,' and substituting a new paragraph containing a description of an area by metes and bounds. The matter came before the meeting pursuant to article 8 in the warrant. Before the vote was taken there were read the report and favorable recommendation of the planning board of the town. G.L.(Ter.Ed.) c. 40A, § 6, inserted by St.1954, c. 368, § 2. See Caires v. Building Commissioner of Hingham, 323 Mass. 589, 593, 83 N.E.2d 550.

The report was as follows: 'There are in Concord center two business zones that abut each other due to the expension of one of them several years ago. The purpose of this amendment is to combine these two zones into one description in the by-law. This amendment does not expand these zones, the boundary that has been read by the Moderator is essentially the same boundary that is presently in the Zoning By-Law. The only change made by this amendment is to correct a slight inconsistency in the areas included. This change will convert a small area of land behind Macone's Garage and in front of the Road Dept. Garage from Single Residence C District to Business District. This area is not suited for residence use; it is bounded on three sides by Business Zone; its only access is from Lowell Road across a business zone; it is in part being used for business purposes since most of Macone's Garage buildings are located within this area; it is partly under water a good portion of the year; and it is owned in part by the Town of Concord and in part by Macone Brothers. Situated as it is its only logical use is a business use, therefore, the Planning Board recommends adoption of this amendment for the purposes outlined above and to simplify the wording of the by-law.'

On or about July 31, 1956, the town clerk forwarded to the Attorney General, with a request for approval under G.L. (Ter.Ed.) c. 40, § 32, as amended, the following documents: the amendment with the certificate of the town clerk; a copy of the warrant showing the date and the manner by which notice of the warrant was given to the citizens in compliance with the by-laws; a copy of the notice of the public hearing of the planning board and the date it was held; and the planning board report signed by members, and certification of these members by the town clerk. The Attorney General made no request of the town clerk for further proof of compliance with procedural requirements.

Under date of September 14, 1956, the Attorney General entered the following at the bottom of the certificate of the town clerk: 'The foregoing amendment to zoning by-law is hereby disapproved.' Under the same date the certificate was returned to the town clerk with a letter signed by an assistant attorney general which read: 'I return herewith by-laws adopted by the town of Concord on June 18th, 1956, under articles 8, 9, 10 and 16 with the action of the Attorney General noted thereon. The amendment voted under Article 8 is disapproved for the reason that it unreasonably includes in the area described therein property which is essentially residential property to the serious injury of the owners thereof.'

The petitions allege that the reasons stated in the letter of the assistant attorney general are not supported by the facts, which are set forth at some length with a reference to an accompanying plan. Such facts succinctly stated are these: The changed area is not 'essentially residential' but is suited only for business use. It is a small parcel of three and one half acres of a shape unsuited for residences and is bounded on three sides by property zoned for business and on the fourth side by Mill Brook. Its only access is across property zoned for business. The area is swampy and subject to frequent flooding. A portion is used for business under nonconforming uses. The petitioners are the only owners of the changed area. They would not sustain 'serious injury' but on the contrary would be greatly benefited, as the property is all but worthless commercially.

General Laws (Ter.Ed.) c. 40, § 32, as appearing in St.1952, c. 337, reads: 'Before a by-law takes effect it shall be approved by the attorney general ¹ or ninety days shall have elapsed without action by the attorney general after the clerk of the town in which a by-law has been adopted has submitted to the attorney general a certified copy of such by-law with a request for its approval, together with adequate proof that all of the procedural requirements for the adoption of such by-law have been complied with. If the attorney general does not, within said ninety days, request of such town clerk in writing further proof of such compliance stating specifically wherein such proof is inadequate, it shall be presumed that the proof submitted was adequate. If the attorney general disapproves a by-law he shall give notice to the town clerk of the town in which the by-law was adopted of his disapproval, with his reasons therefor. If a by-law of a town takes effect by reason of the failure of the attorney general to seasonably act upon a request for its approval, the clerk of such town shall enter in his records a statement that the by-law has become effective by reason of such failure of the attorney general to act. * * * This section shall not apply to cities.'

The petitioners argue that the reasons for disapproval contained in the letter of an assistant attorney general are not the personal reasons of the Attorney General which the statute requires. It is contended that there was an ineffectual delegation of official duties involving the exercise of discretion and judgment for the public weal. See Brown v. Newburyport, 209 Mass. 259, 266, 95 N.E. 504; West Springfield v. Mayo, 265 Mass. 41, 43-44, 163 N.E. 653; Sodekson v. Lynch, 298 Mass. 72, 74, 9 N.E.2d 372; Sheils v. Commonwealth, 306 Mass. 535, 540-541, 29 N.E.2d 12. We do not find it necessary to decide this question. We shall assume, without deciding, that the reasons in the letter are those of the Attorney General.

Under the statute the only reasons to be considered are those given to the town clerk with the notice of disapproval. In the present controversy their meaning is obscure and the subject of conflicting interpretations before us. The petitioners construe the reasons as referring to the changed area of three and one half acres all of which they own. This area they deny is 'essentially residential property' or that its inclusion in a business zone is to their 'serious injury.' The Attorney General, on the other hand, argues that the reference is to the owners of residential property in the immediate vicinity and not merely to the petitioners. The petitions do not disclose that there are such owners whose 'essentially residential' property has just been included in the area described in the amendment. However that may be, we need not resolve the question.

The Attorney General contends that his exercise of the power of approval is final and beyond judicial review. We shall first state the history of St.1952, c. 337. By St.1785, c. 75, towns were empowered to enact orders and by-laws 'provided they be not repugnant to the general laws of the government; and provided also, such orders and by-laws shall have the approbation of the Court of General Sessions of the Peace of the same county.' In Rev.Sts. (1836) c. 15, § 13, this language became: 'provided, the said orders and by-laws shall be approved by the court of common pleas for the county, and shall not be repugnant to the laws of the Commonwealth.' 'Approval or refusal to approve could not be brought to this court for review. In re Weymouth, 2 Cush. 335. The court of common pleas or a justice thereof in vacation became the approving authority by St.1855, c. 222, the Superior Court or a justice thereof in vacation became the authority by St.1859, c. 196, §§ 3, 15, 55, and Gen.Sts.1860, c. 18, § 14, and the Attorney General succeeded to the function by St.1904, c. 344.' Forbes v. Woburn, 306 Mass. 67, 68, 27 N.E.2d 733, 734. Such approval was a condition precedent to validity. Gen.Sts. (1860) c. 18, § 14, Pub.Sts. (1882) c. 27, § 21, R.L. (1902) c. 25, § 26, G.L. c. 40, § 32.

In Re Weymouth, 2 Cush. 335, the court of common pleas dismissed the town's petition for the approval of certain by-laws. The original papers show that the reasons given in the order of dismissal were: '(1) Because said by-laws provide for regulating the sale of spirituous liquors; the same being already provided for by the laws of this Commonwealth. (2) Because said by-laws direct that ...