3 Mass. App. Ct. 680 | Mass. App. Ct. | 1975
This is an appeal from a judgment declaring (G. L. c. 231A) invalid an amendment to the zoning ordinance of the city of Gloucester which rezoned certain property classified as “medium density residential” and “neighborhood business” to “central business.” The judgment also enjoined the owners of the reclassified property from using it in violation of the Gloucester zoning ordinance as it read prior to the reclassification. The defendants who appealed are the city of Gloucester and the owners of the reclassified property — William Taliadoros, Dorothy Taliadoros, and Michael Taliadoros. The plaintiffs (the appellees) are owners of nearby properties who unsuccessfully protested to the city council against the rezoning under G. L. c. 40A, § 7, and brought the bill for declaratory and injunctive relief on which the judgment was entered. The trial judge made findings and rulings; the evidence is reported.
The protest was addressed to the “Honorable Mayor and Members of the City Council”, stated: “We, the undersigned, respectfully wish to be recorded in opposition to the petition of Mr. Taliadoros for re-zoning,” and set out 39 signatures and addresses. It contained nothing more.
Grammatically, it is the “written protest” which is specified as “stating the reasons” and, as thus specified, is to be “duly signed.” And we are not inclined to strain the grammatical structure unless we can say that the requirement that the reasons be in writing has no legislative purpose and that the deviation in this case is merely a “trivial procedural defect.” Canton v. Bruno, 361 Mass. 598, 604 (1972). (Cf. concurring opinion by Cutter, J., at p. 610.) We do not believe that is so or that the requirement can somehow be viewed as merely directory rather than mandatory. Cf. Cheney v. Coughlin, 201 Mass. 204, 211-212 (1909); Cullen v. Building Inspector of North Attlebor-ough, 353 Mass. 671, 679-680 (1968) (both holding that the time of performance by a public body does not go to the “essence of the thing to be done”).
Statutes providing for a greater than majority vote of the appropriate governing body in order to override a protest of a given percent of the landowners affected by a proposed zoning amendment exist in many states. See Trumper v. Quincy, 358 Mass. 311, 312 (1970), and ma
The explicit requirement for written reasons
In connection with the analogous requirement that an initiative petition (art. 48, Part II, § 3) contain a description of the measure it proposes, the Justices of the Supreme Judicial Court have said “The provisions of said art. 48 touching the description are mandatory and not simply directory. They are highly important. There must be compliance with them.” Opinion of the Justices, 271 Mass. 582, 589 (1930). Brooks v. Secretary of the Commonwealth, 257 Mass. 91, 99 (1926). This requirement “was intended
Accordingly, the judgment of the Superior Court is reversed, and a new judgment is to be entered declaring that the amendment to the zoning ordinance was validly enacted.
So ordered.
General Laws, c. 40A, § 7, as amended through St. 1954, c. 368, §§ 1 and 2, provides: “No change of any zoning ordinance or by-law shall be adopted except by a two-thirds vote of all the members of the city council where there is a commission form of government or a single branch, or of each branch where there are two branches, or by a two-thirds vote of a town meeting; provided, that in case there is filed with the city clerk prior to the close of the first hearing before the city council or committee thereof a written protest against such change, stating the reasons, duly signed by the owners of twenty per cent or more of the area of the land proposed to be included in such change, or of the area of the land immediately adjacent, extending three hundred feet therefrom, or of the area of other land within two hundred feet of the land proposed to be included in such change, no such change of any such ordinance shall be adopted except by a unanimous vote of all the members of the city council, whatever its form, if it consists of less than nine members or, if it consists of nine or more members, by a three-fourths vote of all the members thereof where there is a commission form of government or a single branch, or of each branch where there are two branches.”
The plaintiffs’ bill also alleged “spot zoning” and various other defects in the enactment of the amendment. But the declaration in the judgment that the amendment is invalid, though stated in general terms, is not construed by the parties as involving any of these objections. We accept that construction and treat the case on the same footing.
The Bureau of Planning Programs, Massachusetts Department of Community Affairs, has criticized “the veto power given to a minority of the voters by the extraordinary majority requirements of Section 7,” which makes it “unnecessarily difficult to enact progressive changes in existing by-laws.” Enabling Legislation for Planning and Zoning; Study Report No. 1 — Zoning, May, 1971, p. 35.
Predecessors of that section (St. 1920, c. 601, § 9, St. 1926, c. 216, and St. 1929, c. 39, codified as G. L. [Ter. Ed.] c. 40, § 30) did not contain that requirement, nor did the Standard State Zoning Enabling Act (United States Department of Commerce) (appearing in Anderson, American Law of Zoning, §26:01 [1968]) which the commission that reported the 1933 legislative revision of the zoning statutes used as a model. 1933 House Document 1240, p. 34. The recommendation for the latest revision of the zoning law (1975 House Document 5600, p. 7) retains this requirement though changing the unanimity require
General Laws, c. 40A, § 6, contemplates a decision “within 90 days after ... hearing.”