Woods v. City of Newton

• Decision Date: 08 June 1966
• Citation: Woods v. City of Newton, 217 N.E.2d 728, 351 Mass. 98 (Mass. 1966)
• Parties: Basil K. WOODS et al. v. CITY OF NEWTON et al.
• Court: Supreme Judicial Court of Massachusetts

Page 728

217 N.E.2d 728

351 Mass. 98

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

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 5, 1966.

Decided June 8, 1966.

Lawrence H. Adler, Boston (Fred B. Wilcon, Brookline, with him) for plaintiffs.

Gael Mahony, Boston (Richard W. Renehan and Joseph D. Steinfield, Boston, with him) for Marriott Motor Hotels of Newton, Inc., and others; Matt B. Jones, City Solicitor, for City of Newton and another, also with him.

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

WHITTEMORE, Justice.

These are appeals by the plaintiffs and the defendants from a declaratory decree of the Superior Court of December 10, 1965. The decree, in paragraphs 1 and 2 respectively, declared the validity of the rezoning by the Newton board of aldermen, on November 4, 1963, of nine and three-quarters acres of land in Normubega Park (the locus) from Residence C to Business AA, and of the exception granted by the board on November 18, 1963, subject to nine conditions, and to site plan approval, to permit the construction of a motel on the locus. The decree also (par. 3) ordered the public building commissioner to issue to the defendant Marriott Motor Hotels of Newton, Inc. (Marriott) a permit to construct the motel 'subject to the conditions and permissive exceptions and site plan approval and the height restriction of 40 feet unless otherwise varied by proper proceedings and authorities'; (par. 4) granted Marriott the right to seek a variance for a height increase; and (par. 5) dismissed the bill of complaint in other respects. Our opinion sustaining demurrers in this case, but with leave to amend, is reported at 349 Mass. 373, 208 N.E.2d 508. The points now at issue, and related facts, are stated below in the course of the opinion.

1. The plaintiffs contend that the rezoning ordinance was invalid because the planning board and the committee of he board of aldermen held a joint hearing. We disagree.

General Laws c. 40A, § 6, provides in part: 'No zoning ordinance or by-law originally establishing the boundaries of the districts or the regulations and restrictions to be enforced therein, and no such ordinance or by-law changing the same as aforesaid, shall be adopted until after the planning board * * * has held a public hearing thereon, first causing notice of the time and place of such hearing and of the subject matter, sufficient for identification, to be published in * * * (a manner prescribed), and has submitted a final report with recommendations to the city council or town meeting, or until twenty days shall have elapsed after such hearing without the submission of such report * * *. In a city no such ordinance as proposed to be originally established or changed as aforesaid shall be adopted until after the city council or a committee designated or appointed for the purpose by it has held a public hearing thereon, at which all interested persons shall be given an opportunity to be heard. Notice of the time and place of such hearing before the city council or committee thereof and of the subject matter, sufficient for identification, shall be published in * * * (a manner prescribed). After such notice, hearings and report, or lapse of time without report, a city council or town meeting may adopt, reject, or amend and adopt any such proposed ordinance or by-law.'

A notice of two hearings at the same time and place was so published as to comply with the statutory requirements as to time and means of publication and statement of the subject matter of the hearings. ¹ On August 12 the members of the committee sat in their customary seats in the aldermen's chamber. The members of the planning board sat at a separate table. An alderman presided and invited members of the planning board to question the speakers. All persons who desired to do so were permitted to speak. The committee and the planning board kept separate minutes and after the hearing the committee and the planning board separated for their deliberations.

The statute makes plain that the purpose of the planning board hearing is to enable it to be informed of the proposal and of citizens' views thereon and to report its recommendations if it wishes to do so. Inasmuch as the ordinance can be enacted in the absence of any report from the planning board, there is no force in the contention that the statute intends that the hearing before the enacting body or its committee be held in the light of a report from the planning board. The statute contemplates that the enacting body will act in the light of a report from the planning board, if any such is submitted (Caires v. Building Commr. of Hingham, 323 Mass. 589, 595, 83 N.E.2d 550), as well as of its knowledge of citizens' views and other pertinent information obtained at the public hearing held by it or its committee. Nothing in this statutory scheme is disserved by the joint hearing, nothing in the statute bars it, and public convenience and advantage may result. We see nothing in the suggestion that the language, 'After such notice, hearings (emphasis supplied) and report, or lapse of time without report, a city council * * * may * * * (act)' shows a legislative intent that the board and the committee meet separately. For all purposes of the statute, there was a planning board hearing and a committee hearing. On this point, this is the opinion of the majority of the court.

2. The board of aldermen on December 16, 1963, modified its permission for a motel to allow it to be built to a height of fifty-eight feet. The final decree in effect rules this action invalid and remits Marriott to an application for a variance. In this aspect the decree was in error.

The statute (G.L. c. 40A, § 4) provides in part: 'A zoning ordinance or bylaw may provide that exceptions may be allowed to the regulations and restrictions contained therein, which shall be applicable to all of the districts of a particular class and of a character set forth in such ordinance or by-law. Such exceptions shall be in harmony with the general purpose and...