318 Mass. 216 | Mass. | 1945
This bill is brought to enforce the town’s zoning by-law by restraining the defendants from removing the top soil or loam from two tracts of land, one of forty-one acres and one of four and a half acres, both located on Bedford Street in the plaintiff town. The facts appear from the pleadings and from an agreed statement of facts in which are incorporated certain exhibits. . The trial judge ordered a decree for the plaintiff and reported the case.
1. The defendants contend that the by-law is invalid because the statutory process by which alone a valid zoning ordinance or by-law can be adopted was not followed in three respects.
(a) General Laws (Ter. Ed.) c. 40, § 27, as appearing in St. 1941, c. 320, provides in part that no such ordinance or by-law shall be adopted until after the planning board, if there is one in the town, “has held a public hearing thereon after due notice given and has submitted a final report with recommendations to the . . . town meeting . . . .” It is contended that “due notice” was not given of the hearing held by the planning board on July 7, 1943, because the notice was published only four days before that day.
What is the most effective time for giving notice of such a hearing may be open to question. It is possible to give notice too early as well as too late. Circumstances may differ in different towns. We do not know how often the paper in which the notice appeared was published. In
(b) After the hearing on July 7 a proposed zoning by-law in which the districts were delineated by reference to an accompanying map was approved by the planning board for insertion and was inserted in a warrant for a special town meeting to be held on August 25. Before the town meeting, however, the planning board held two more meetings of which no public notice was given and as a result of which the board decided to change the map inserted in the warrant by zoning for business purposes five additional small parcels of land in scattered locations, none of which appears to have affected in any way the tracts involved in this litigation. The final report submitted by the planning board to the town meeting was accompanied by the amended map showing these changes. The defendants contend that the planning board should have held another hearing upon the proposed by-law as changed.
We see no necessity for this. The planning board, after adequate notice, held a hearing on the proposed by-law and submitted its final report with recommendations to the town meeting. The board therefore complied with the statute. This is true whether the action of the board be construed as a recommendation of the original map or of the amended map. There is nothing in the statute requiring another hearing whenever, after one hearing, the board decides to amend what had previously been proposed. The amendments were not of a fundamental character.
(c) At the town meeting on August 25 the town voted to adopt the by-law together with the amended map. The defendants contend that the vote was invalid because the map as' adopted differed from that inserted in the warrant with respect to the five parcels mentioned above.
General Laws (Ter. Ed.) c. 39, § 10, as last amended by St. 1939, c. 182, includes provisions that the warrant “shall state . . . the subjects to be acted upon” at the meeting and that “no action shall be valid unless the subject matter thereof is contained in the warrant.” This means only that the subjects to be acted upon must be sufficiently stated in the warrant to apprise voters of the nature of the matters with which the meeting is authorized to deal. It does not require that the warrant contain an accurate forecast of the precise action which the meeting will take upon those subjects. Haven v. Lowell, 5 Met. 35, 40-41. Grover v. Pembroke, 11 Allen, 88, 89. Sherman v. Torrey, 99 Mass. 472. Whitney v. Stow, 111 Mass. 368, 370. Wood v. Jewell, 130 Mass. 270, 271. Matthews v. Westborough, 131 Mass. 521, 522, 523. Coffin v. Lawrence, 143 Mass. 110. Tuckerman v. Moynihan, 282 Mass. 562, 565. The case of Fitzgerald v. Selectmen of Braintree, 296 Mass. 362, dealt with a very different situation. Moreover, G. L. (Ter. Ed.)
2. The defendants contend that the by-law is invalid because unconstitutional as applied to the removal of the loam from their land. It places their land in a district zoned for residence under regulations which would forbid its use for the purpose of stripping and carrying away the surface soil, whether or not for sale (§§ 8, 9). Saugus v. B. Perini & Sons, Inc. 305 Mass. 403, 407.
It is true that art. 60 of the Amendments to the Constitution of the Commonwealth expressly authorizing building ' zopes in cities and towns does not apply to vacant lands, but it by no means follows that the uses of vacant lands cannot be regulated to a reasonable extent and in a reasonable manner for the promotion of the public health, safety, morals or welfare. This possibility, quite apart from art. 60, was, in effect, recognized in one of the very earliest judicial expressions on the subject, Opinion of the Justices, 234 Mass. 597, 602-603, before the first zoning statute in this Commonwealth was enacted. See also Brett v. Building Commissioner of Brookline, 250 Mass. 73, 77. And the constitutionality of zoning statutes which have been held valid under the Federal Constitution and in many of the States does not depend upon art. 60 or upon any equivalent express constitutional provision. Opinion of the Justices, 234 Mass. 597, 607-611. Inspector of Buildings of Lowell v. Stoklosa, 250 Mass. 52, 58-59. Euclid v. Ambler Realty Co. 272 U. S. 365. The statute now in force, G. L. (Ter. Ed) c. 40, § 25, as inserted by St. 1933, c. 269, § 1, authorizes a municipality to regulate, the use of land as well as the construction and use of buildings thereon for the purpose of promoting the "health, safety, convenience, morals or welfare of its inhabitants,” and the by-law in question by its terms applies to the use of vacant land. The question posed by the defendants’ contention is therefore the one now familiar in zoning
In our opinion the by-law is a valid constitutional regulation of the defendants’ use of their land. We may take judicial notice of the fact that Burlington is a small town, generally residential in character, located within commuting distance of Boston. There are approximately fifty residences within a radius of half a mile from the premises. The' defendants have commenced to remove the soil by scraping it into piles with a "bulldozer” and taking it away by means of a steam shovel and trucks. The stripping of the top soil from a tract of land is not only likely to produce disagreeable dust and noise during the process, which may be prolonged, but, more important, after it is completed it leaves a desert area in which for a long period of time little or nothing will grow except weeds and brush. It permanently destroys the soil for agricultural use and commonly leaves the land almost valueless for any purpose. The effect of such an unsightly waste in a residential community can hardly be otherwise than permanently to depress values of other lands in the neighborhood and to render them less desirable for homes. If this process should be repeated upon tract after tract of suburban land the cumulative effect might well become disastrous to certain localities. The town must continue to maintain roads- and public services past such blighted areas in spite of the fact that taxable values are destroyed and development retarded. All this concerns the public welfare in the constitutional sense. Wilbur v. Newton, 302 Mass. 38, 42-43. It is natural that a town of the character and situation of
In our opinion the case of Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, cited by the defendants, decided upon peculiar facts by a divided court before the decisions of the same court in which the validity of zoning regulations was established, is not decisive here. It has been recognized in a number of the later cases that the validity of zoning ordinances in their application to particular lands
3. The defendants contend that they are but continuing a use existing when the by-law was adopted, and assert that they are protected by the provision in G. L. (Ter. Ed.) c. 40, § 26, as inserted by St. 1933, c. 269, § 1, that such a by-law “shall not apply ... to the existing use ... of land to the extent to which it is used at the time of adoption of the . . . by-law, but it shall apply'to any change of use thereof . . ..” The facts bear out the defendants’ contention only to a very slight extent. It appears that before the adoption of the by-law there had been a gravel pit of considerable size on one portion of the premises, and that top soil at this location had been removed to get at the gravel and had been used elsewhere. The record does not disclose the exact dimensions of the gravel pit, but it would seem to have comprised only a small portion of the total acreage. We think that the stripping of the surface soil from the whole acreage would have an altogether different effect upon the neighborhood than the operation of the former gravel pit in its original location and would amount to a change of use beyond the protection, of § 26. Lexington v. Bean, 272 Mass. 547, 552-553. Marblehead v. Rosenthal, 316 Mass. 124, 128. Even if the present purpose of stripping- the soil is to get at gravel beneath it, which
A final decree is to be entered granting the plaintiff the relief prayed for.as to both tracts of land, except that the defendants may remove top soil to get at and remove gravel in the location of the gravel pit as it existed at the time of the adoption of the by-law. If necessary, a further hearing may be had to determine the exact boundaries of the area that can fairly be found to be devoted to the existing use of removing gravel. .
So ordered.