299 Mass. 64 | Mass. | 1937
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.
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, §§ 25-33, as amended.) The petitioner’s land was wholly in a single residence district. In 1928 the petitioner sold 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
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 those employed by him and doing business with him were very active in getting out voters for this meeting, but no improper methods were used. While the hall in which the meeting was held was crowded and people had to force their way in at some inconvenience, one could find a seat if he persisted. Before the town meeting was held the planning board, which consisted of twelve members, held a duly advertised public meeting to consider the proposed amendment to the zoning by-law. The petitioner and Cahoon were present with counsel and were heard, as were others. Ten members of the planning board were present at this meeting and eight at the final meeting held three days later. Two members were out of town. After discussion, a secret ballot was taken on the question whether the adoption of the article be recommended. Four voted in favor, and four against. A report was typewritten but not signed. It was read at the special town meeting. It recited certain facts and arguments, and concluded with the statement that after careful consideration a ballot was taken resulting in a tie vote and that the
It is provided by G. L. (Ter. Ed.) c. 40, § 27, as appearing in St. 1933, c. 269, § 1, with respect to zoning, that such “ordinances or by-laws may be adopted and from time to time be changed by amendment, addition or repeal, but only in the manner hereinafter provided. No ordinance or by-law originally establishing the boundaries of the districts or the regulations and restrictions to be énforced therein, and no ordinance or by-law changing the same as aforesaid, shall be adopted until after the planning board, if any, or, in a town having no such board, the board of selectmen, has held a public hearing thereon after due notice given and has submitted a final report with recommendations to the city council or town meeting.” There was a planning board in Falmouth. See G. L. (Ter. Ed.) c. 41, §§ 70, 71, 72, as amended by St. 1936, c. 211. Among other duties such board was required to “make careful studies of the resources, possibilities and needs of the town, . . . and •• make plans for the development of the municipality, with special reference to proper housing of its inhabitants.” These statutory provisions are peremptory to the effect that no by-law changing the boundaries of zoning districts shall be adopted until after there has been a public hearing on the subject and the submission of a “final report with recommendations” by the planning board. By plain words a condition precedent is thus established to the making of such changes. The town meeting has no jurisdiction to take up the consideration of the merits of such change unless and until there is before it a report by the planning board “with recommendations.” The report of the planning board in the case at bar contained no recommendations. That is the explicit finding of the auditor. That finding has ample support in the facts reported by the auditor. By no stretch of construction can a statement of inability to make a recom
It is not necessary to discuss or consider the other grounds upon which the petitioner argues that the amendment to the zoning by-law was void.
It has not been contended that, if the alleged amendment was not legally adopted, mandamus does not afford the appropriate remedy. Crocker v. Justices of the Superior Court, 208 Mass. 162, 164. Andrews v. Registrars of Voters of Easton, 246 Mass. 572, 576. Godfrey v. Building Commissioner of Boston, 263 Mass. 589, 593. D. N. Kelley & Son, Inc. v. Selectmen of Fairhaven, 294 Mass. 570, 574. Cape Cod Steamship Co. v. Selectmen of Provincetown, 295 Mass. 65. The writ may also run against the respondents if any of the petitioner’s contentions can be upheld.
In each case the entry may be
Exceptions overruled.