Woods v. City of Newton

• Decision Date: 22 June 1965
• Citation: 349 Mass. 373,208 N.E.2d 508
• Parties: Basil K. WOODS et al. v. CITY OF NEWTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 508

208 N.E.2d 508

349 Mass. 373

Basil K. WOODS et al. v. CITY OF NEWTON et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 4, 1965.

Decided June 22, 1965.

Lawrence H. Adler, Boston, for plaintiffs.

Gael Mahony and Richard W. Renehan, Boston, for Marriott Motor Hotels of Newton, Inc. and others and Matt B. Jones, City Sol., for the City of Newton and another, submitted a brief.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

WHITTEMORE, Justice.

This suit for declaratory relief is brought by owners of residences in Newton adjacent to premises rezoned by a vote of the board of aldermen on November 4, and as to which petitions for permissive use and site plan approval and for a variance were granted by the board on November 18, and December 16, 1963, respectively. The bill alleges an actual controversy between the plaintiffs and the defendants (the city of Newton, its public buildings commissioner, and Marriott Motor Hotels of Newton, Inc. [Marriott]) in that Marriott 'has filed or intends to file' with the public buildings commissioner an application for a permit to construct a motor hotel building on the rezoned premises and the plaintiffs contend, on several grounds, that the votes of the board of aldermen are invalid. The owners of the premises, which were under lease to Marriott, were permitted to intervene as parties defendant.

The defendants demurred and a judge in the Superior Court after hearing sustained the demurrers. The plaintiffs' appeals from the interlocutory and final decrees raise the issues of the plaintiffs' standing to seek a declaration under G.L. c. 231A and the adequacy of the allegation of a controversy.

It is now established that controversies in respect of a zoning regulation may be resolved by a declaratory decree. NOONAN V. MOULTON, MASS., 204 N.E.2D 897;^A TOWN OF STOW V. PUGSLEY, MASS., 207 N.E.2D 908.^B The issue of what kind of controversy will support a suit by abutters has not heretofore been adjudicated. Certain related principles are, however, well established.

Members of the general public, even if abutters, apart from G.L. c. 231A, may not proceed directly for the enforcement or construction of zoning regulations. O'Brien v. Turner, 255 Mass. 84, 86, 150 N.E. 886; Boyle v. Building Inspector of Malden 327 Mass. 564, 566, 567, 99 N.E.2d 925; Nigro v. Jones, 332 Mass. 741, 744, 127 N.E.2d 650; Smith v. Board of Appeals of Plymouth, 340 Mass. 230, 234, 163 N.E.2d 654; BRADY V. BOARD OF APPEALS OF WESTPORT, MASS., 204 N.E.2D 513,^C and cases cited.

The use of the declaratory procedue by an enforcing officer in appropriate. TOWN OF STOW V. PUGSLEY, MASS., 207 N.E.2D 908.^D General Laws c. 40A, § 22, inserted by St.1954, c. 368, § 2, provides in part: 'If the attorney general questions the validity of any ordinance or by-law adopted by a city or town under this chapter, he shall bring an information in his own name as such officer in the superior court sitting in equity for the county in which such city or town is situated for a declaratory decree to determine the validity of such ordinance or by-law.' Attorney Gen. v. Inhabitants of Town of Dover, 327 Mass. 601, 605-608, 100 N.E.2d 1, holds that this provision is valid statutory authority to proceed in the absence of a controversy in the usual understanding of the word. The court by Qua, C. J., said, 'If it is thought essential to have a 'controversy' that can be ended by the decision, such a controversy can be found in the interest which the public as a whole, represented by the Attorney General, has in keeping the zoning regulations of municipalities within lawful bounds and in not allowing them to become instruments of discrimination or oppression, as opposed to the interest which the municipality may be assumed to have in defending the ordinance or by-law which it has in due form adopted. This controversy is ended by the decision, and even though the decree is declaratory in form, practical results are achieved.' 327 Mass. at 606, 100 N.E.2d at 4.

Owners of freehold estates in possession are expressly authorized by G.L. c. 240, § 14A (inserted by St.1934, c. 263, § 2, eleven years before the enactment of c. 231A by St.1945, c. 582), to petition the Land Court for a determination of the validity of zoning enactments affecting their land or structures thereon. The Land Court by G.L. c. 185, § 1 (j 1/2) has exclusive jurisdiction of petitions brought under that section. There is no requirement in c. 240, § 14A, that any controversy be shown. Except for that statute, however, and the authority given the Attorney General by c. 40A, § 22, an 'actual controversy * * * specifically set forth' is required for declaratory relief. ¹

In certain instances, particularly in suits by landowners, a controversy arises because of pending attempts to make use of land. Owners who have been denied permits or who, being about to make a new use of their land, are threatened with enforcement proceedings, are in dispute with the public officials concerned. Such a dispute is a controversy within our definition of the word for purposes of c. 231A (School Comm. of Cambridge v. Superintendent of Schools of Cambridge, 320 Mass. 516, 518, 70 N.E.2d 298) and has been so dealt with. Publico v. Building Inspector of Quincy, 336 Mass. 152, 155, 142 N.E.2d 767. See Butler v. Town of East Bridgewater, 330 Mass. 33, 110 N.E.2d 922.

It follows from the foregoing that the holding of Sisters of Holy Cross of Mass. v. Town of Brookline, 347 Mass. 486, 490-492, 198 N.E.2d 624 (only the Land Court under G.L. c. 240, § 14A, has jurisdiction to enter a declaration at the instance of an owner), must be confined to cases where there is no actual controversy. We recognize that, in accordance with the principles now stated, there was a controversy in that case. It would be anomalous, however, to exclude landowners from the right which all others at interest would have to seek declaratory relief under c. 231A, and to do so because of a statute enacted before the general principle of declaratory relief had been adopted. See G.L. c. 231A, § 9. ² Giving landowners, in cases of actual controversy, a right alternative to that given by c. 240, § 14A, does not invade the exclusive jurisdiction of the Land Court of proceedings under that statute. See Meenes v. Goldberg, 331 Mass. 688, 691, 122 N.E.2d 356, 359 ('Commonly relief under [c. 231A] should not be denied because of the possibility of some other form of remedy, if the case presented comes within the general scope of the chapter and no special reasons exist against the use of the declaratory process'); Robinson v. Commonwealth, 335 Mass. 630, 632, 141 N.E.2d 727, 728 ('[The plaintiff, the owner of the land] could have filed a petition in the Land Court under G.L. (Ter.Ed.) c. 240, § 14A, * * * or he could have filed a suit for declaratory relief in the Superior Court under G.L. (Ter.Ed.) c. 231A, * * * to determine the validity of the ordinances').

Although, as noted, the kind of controversy needed in declaratory proceedings brought by abutters has not been adjudicated, there have been several cases so brought, in which declaratory decrees have been entered. In Morgan v. Banas, 331 Mass. 694, 122 N.E.2d 369; Kitty v. City of Springfield, 343 Mass. 321, 178 N.E.2d 580, and NOONAN V. MOULTON, MASS., 204 N.E.2D 897,^E the issue of a required controversy was not discussed. In Berger v. Town of Wellesley, 334 Mass. 193, 195, 134 N.E.2d 436, 437, the court said, 'It * * * now appears that the controversies which the plaintiffs alleged * * * have become moot and no occasion exists to consider the propriety of their proceeding see Povey v. School Committee of Medford, 333 Mass. 70, 71-72, 127 N.E.2d 925 * * *.'

The defendants contend that the Povey case (followed in Berry v. City of Quincy, 334 Mass. 703, 134 N.E.2d 135) is determinative and requires the holding that the plaintiffs are without standing and that there is no controversy. The Povey case holds that ten or more residents and taxpayers may not use c. 231A to obtain an interpretation of a rule of the school committee and a declaration of the validity of a vote by the committee with respect to a contract with an appointee. The court held that the express rights given to taxpayers by G.L. c. 40, § 53, relating to illegal expenditures, furnish no basis for resort to c. 231A. The court said, 333 Mass. at page 72, 127 N.E.2d at page 926, 'Moreover, it is required by c. 231A, § 8, that 'all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.' If then these plaintiffs are proper parties to this proceeding why must not all other taxpayers who have the same rights as the plaintiffs be made parties? And if all others are not made parties why may not other taxpayers who are not bound by the present proceeding bring other and later suits in their respective rights? And if ten or more taxpayers have a right to sue for declaratory relief, why does not a single taxpayer have the same right? We cannot believe that the Legislature intended that public officers should be subject to harassment by taxpayers as to their official acts in this manner.'

Citizens, however, do have rights in respect of the enforcement of zoning and like regulations. They may call upon enforcing officers to enforce the law, and if the officers decline or fail to act they may petition for a writ of mandamus. BRADY V. BOARD OF APPEALS OF WESTPORT, MASS., 204 N.E.2D 513,^F and cases cited.

If a citizen asserts to an enforcing official that in his view there is a violation of law, and the official asserts the contrary, expressly or by inaction (see Kelley v. Board of Health of Peabody, 248 Mass. 165, 169, 143 N.E.39), there is, in plain English, a controversy between them. See School Comm. of...