Whittemore v. Town Clerk of Falmouth

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation12 N.E.2d 187,299 Mass. 64
Decision Date27 December 1937

November 13, 1936 June 28, 1937.

Present: RUGG, C.


Zoning. Words "Recommendation.

" By G. L (Ter. Ed.) c. 40, Section 27, as appearing in St. 1933, c. 269,

Section 1, a town which had a planning board could not make an amendment of the districts established in its zoning bylaw until after there had been a final report and recommendation concerning the matter by that board.

A statement by the planning board of a town that after a tie vote of its members it was "unable at this time to make any recommendation" was not a

"report with recommendations" under G. L. (Ter. Ed.) c. 40, Section 27, as appearing in St. 1933, c. 269, Section 1.

TWO PETITIONS for writs of mandamus, filed in the Supreme Judicial Court for the county of Suffolk on March 8, 1935, and March 30, 1936.

The cases were heard by Pierce, J.

J. P. Sylvia, Jr., (R.

Clayton with him,) for the respondents.

S. R. Wrightington, for the petitioner.

RUGG, C.J. These are two petitions for writs of mandamus. In the petition against the town clerk are prayers that the respondent be directed to expunge from her official record of a special town meeting recitals to the effect that a vote had been adopted amending the zoning by-law of Falmouth and to record in place thereof a copy of the decision to be made by the court on that petition. This petition was referred to an auditor, who submitted a comprehensive report. Later a petition for a writ of mandamus was brought by the same petitioner against the building inspector of Falmouth to compel him to enforce the zoning by-law, as it was before the alleged amendment, against one Samuel T. Cahoon for maintaining an ice manufacturing plant in a residential district. This second petition was referred to the same auditor to be heard upon the same evidence then before him in the proceeding against the town clerk and upon any further evidence. After hearing both cases the auditor filed in the case against the building inspector a report substantially identical with that already filed in the case against the town clerk. He also filed a supplemental report in the case against the town clerk. The cases were then heard by a single justice on the auditor's reports and the exhibits therein referred to. No other evidence was introduced.

Requests for rulings were presented by both parties and passed upon by the single justice. No findings of fact made by him are set forth in the record. In each case it was ordered that a writ of mandamus issue. [*] The cases come before us on exceptions by each respondent.

The alleged amendment to the zoning by-law purported to change a comparatively small lot near the center of a large single residence district, on which was located a plant for the manufacture of artificial ice, so that it would be in a light industrial district and not in the residence district. The petitioner contends that the amendment was void (1) because qualified voters were unable to get into the town meeting at which it was adopted, (2) because the planning board did not make a preliminary report with recommendations, which by statute is made a condition precedent to any amendment, (3) because the amendment violated the statute requiring substantial uniformity for like territory, (4) because the purpose of the amendment was the private benefit of the owner of the land so changed. It is not necessary to pass upon all these contentions.

Facts material to the grounds of this decision are these. The petitioner is a citizen of Falmouth and the owner of real estate on the shore of Buzzards Bay in that town. That real estate is laid out in house lots for summer residences, and roads have been constructed at the expense of the petitioner. The petitioner has erected on it an attractive residence, which she occupies throughout the year. Various lots have been sold and dwellings for summer residences have been built upon them. In May, 1926, the town of Falmouth adopted a zoning by-law in accordance with the statutes. (See now G. L. [Ter. Ed.] c. 40, Sections 25-33, as amended.) The petitioner's land was wholly in a single residence district. In 1928 the petitioner old a parcel of land to Samuel T. Cahoon, a citizen of Falmouth, for the ice business. The greater part of this land was too narrow for residences. Cahoon tore down an old ice house which was on the land and erected a new one, after obtaining a variance to permit a set-back. He harvested natural ice from an adjoining pond in 1929, but was unable to do so for several years thereafter because of mild weather, and has harvested none since that year. Due to increased demands for ice Cahoon, in April, 1933, installed an artificial ice plant in his building. Before doing this he inquired of a former building inspector and was told that he could make such installation if no exterior changes were made. This ice plant was operated by engines. There were complaints about the noise of operation of the ice plant. Changes were made which practically eliminated the noise and as thus changed the operation of the ice plant would attract very little attention by noise or smoke. Soon after, a petition was circulated for a special town meeting to change the real estate where the ice is manufactured from the single residence district to the light industrial district. No action was taken at a town meeting until 1935. The petitioner made objection to the selectmen against the further operation of the ice plant, and supporting petitions signed by numerous property owners were presented. Cahoon caused to be circulated petitions for a special town meeting to pass upon an article to amend the zoning by-law by changing the ice plant property from a single residence to a light industrial district.

The town meeting was held on a very cold night. The vote in favor of the change was six hundred ninety, to eleven against it. Cahoon and...

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