MISC 57797

August 17, 1978

Plymouth, ss.

Fenton, J.


A petition was brought under the provisions of G. L. c. 240, § 14A and c. 185, § 1 (j 1/2) by the owner of a freehold estate in possession to determine the validity of an amendment to the zoning ordinance of the City of Brockton (city), which reclassified part of petitioner's land from C-2 General Commercial Zone to R-1-C Single Family Residential Zone.

Petitioner alleges that enforcement of the amended ordinance would cause it to suffer substantial financial loss; that there was no reason for the city to single out that small portion of land for special treatment; that there is no sUbstantial relation between the ordinance and any of the purposes of the enabling act; that the ordinance would not further the public health, welfare, safety, or morals; and that the ordinance is arbitrary and unreasonable.

Petitioner prays that the court declare invalid the reclassi- fication of its land as residential, and that the court reinstate the Zoning District Map dated November 10, 1967, as it applied to petitioner's land.

Respondent denies that the ordinance furthers none of the objectives of the enabling act; that there was no valid basis for the city to distinguish the rezoned land from other land in the C-2 district; and that the ordinance is arbitrary and unreasonable.

A trial was held in this court, with a stenographer sworn to record the testimony, at which only one witness, the principal officer and stockholder of the petitioner, testified. All exhibits introduced into evidence are hereby incorporated into this decision for the purposes of any appeal.

On all the evidence and the facts agreed to by the parties in the following stipulation, the court finds the following facts:

"1. Ashwood Homes, Inc., is a corporation duly established and existing under the laws of the Common- wealth of Massachusetts, having an usual place of business in Brockton, Plymouth County, Massachusetts.

2. Ashwood Homes, Inc., under the laws of the Commonwealth has the power to hold, purchase, convey, mortgage or lease such real estate as its purposes may require.

3. Ashwood Homes, Inc., is the owner of a parcel of land shown as Plot 156 Belmont Street, Assessors' Plan 18, Brockton, Massachusetts, containing 7 acres, 4,101 square feet, on the northerly side of said Belmont Street, a major artery in said Brockton.

4. Ashwood Homes, Inc., acquired and holds title to said property by deed of Raymond A. Mucci dated March 6, 1954, recorded with Plymouth County Registry of Deeds in Book 2341, Page 26.

5. The said property of Ashwood Homes, Inc. was and is bounded on its west side, in part, by a parcel of land containing 3,730 square feet of land, measuring 23.2 feet on its northerly side and 12 1/4 feet on its southerly side and 271.89 feet on its easterly side, abutting plaintiff's locus, being shown as Plot 6 Torrey Street on City of Brockton Assessors' plan 18, which bars access from plaintiff's locus to Sagamore Road and Yarmouth Avenue.

6. Plaintiff's property, the said Plot 156, containing 7 acres, 4,101 square feet, was zoned Commercial C-2, in its entirety, under the Comprehensive Zoning Ordinance of the City of Brockton adopted on December 28, 1967, as shown on The City of Brockton, Massachusetts Zoning District Map dated November 10, 1967, simultaneously adopted and incorporated in the Ordinance.

7. Plaintiff's property, the said Plot 156, is abutted on the east by Plot 157-4, containing 5 acres, 32,670 square feet, and by Plot 157-6, containing 2 acres, 1,525 square feet, both zoned C-2 under the aforesaid Comprehensive Zoning Ordinance, upon which is located a Sears-Roebuck store, a large parking area, and a large service facility for automobiles.

8. That Plot 157-4 aforesaid containing the Sears- Roebuck operation is in turn abutted on its east side by Plot 157-3 which contains 4 acres, 630 square feet, zoned C-2 under the aforesaid Comprehensive Zoning Ordinance, upon which is located one large building which houses eight commercial enterprises, namely, Brockton Public Market, a super market operation, Chaney Drug Store, Ganley's Clothing Store, Dorothy-Lou Pastry Shop, House of Cards, Crystal Cleaners, James C. O'Brien Jewelry and a branch of the First County National Bank, together with a parking area to the front and west sides of the building. In addition there is located on said Plot a separate installa- tion for the sale of gasoline and oil for automobiles.

9. That said Plot 157-3 is abutted on the north by Plot 157, containing 3 acres, 3484 square feet, zoned C-2 under the aforesaid Comprehensive Zoning Ordinance, upon which is located two transmission towers and a building housing transmission facilities for a local broadcasting station.

10. Plaintiff's property, the said Plot 156, is abutted on the west, in part, by Plot 155 Belmont Street, Brockton Assessors' Plan 18, containing 3 acres, 40,900 square feet, zoned C-2, Under the aforesaid Comprehensive Zoning Ordinance, and used by Producers Dairy Company as a milk and allied products processing and distribution plant.

11. On the south side of Belmont street opposite to plaintiff's Plot 156, Aforesaid, Plots 69-1, 69, 67-1, 67, 66-2, 66, and 66-1, with a combined frontage on the street of 956 feet and a combined area of approximately 11 acres, as shown on Assessors' Plan 20, were all zoned C-2 under the Comprehensive Zoning Ordinance aforesaid.

12. Ashwood Homes, Inc., erected adjoining and abutting buildings on its property, Plot 156 aforesaid, one measuring 150 feet in front and 160 feet in depth, which it leased on June 10, 1959, to the Great Atlantic and Pacific Tea Company for use as a super market, together with the ancillary right to use a parking area on the said land sufficient to accommodate 350 cars, and an adjoining building measuring 100 feet in front and 130 feet in depth, which it leased on January 10, 1959, to F. W. Woolworth Co. as a dry goods retail outlet, together with parking rights and optional premises in the rear of the building 100 feet wide and 50 feet deep.

13. On May 5, 1969, the respondent City adopted an Ordinance amending the existing Comprehensive Zoning Ordinance aforesaid, by which new Burdens and restrictions were placed on the land of the plaintiff, Plot 156 aforesaid, not contained in the existing Comprehensive Zoning Ordinance.

14. The Amendment aforesaid changed from C-2 to R-1-C that portion of plaintiff's locus, Plot 156 aforesaid, bounded as follows:

Northerly from Belmont street (bounded southerly by the remaining portion of Plot 156 aforesaid) 240 feet, more or less;

Easterly from Sagamore Road (bounded westerly by Plot 6 Torrey street) 271.89 feet;

Southerly from Dennis Avenue (bounded northerly by Plots 5, 4 & 3 Dennis Avenue) 153.65 feet; and

Westerly from Harwich Road (bounded easterly by Plot 27 Belmont Street) 120.97 feet.

15. There has been no change in the general area surrounding the area rezoned between the adoption of the Comprehensive Zoning Ordinance of the City of Brockton, on December 28, 1967, and the adoption of the above Amendment on May 5, 1969.

16. The area to the west, north and east of that part of plaintiff's locus rezoned by the amending Ordinance of May 5, 1969, is zoned residential (R-1-C), as shown on the plan adopted as a part of said amendment."

The rezoned area of approximately 33,605 square feet, comprised a very small part of a relatively large commercial district. It is indistinguishable from it in character, except that no commercial development or use of it has yet occurred. The rezoned area is a small portion of the rear section of petitioner's 7 acre parcel, the entire front part of which abutting Belmont street was zoned, developed and used for commercial purposes with two large structures being occupied by the Great Atlantic and Pacific Tea Company and F. W. Woolworth Co., together with ancillary parking for more than 350 cars at the time of the rezoning from commercial to residential use in 1969. The only difference in the rezoned parcel from other land of petitioner and other surrounding property in the commercial zone is that the rezoned parcel had not been paved or developed but remained in its natural gravel state. It was simply a relatively small part of an unpaved area to the rear of an actively used commercially zoned parcel.

At the time of the 1969 rezoning the entire area abutting petitioner's 7 acre parcel on Belmont Street was zoned and developed commercially. Property to the east of the rear portion of petitioner's land was similarly zoned and developed commercially as was property on the southerly side of Belmont Street.

Petitioner's entire parcel had been zoned commercially since 1956. In a general revision of the zoning ordinance in 1967 it remained commercial. The rezoned portion is bounded on the north, east and west by the lower fringe of a residential district upon which were located three houses at the time of the 1969 rezoning, two of which were built in the early 1950's. Other houses in the residential district abutting were generally built in the late 1940's and early 1950's. Prior to the zoning amendment in 1969, there had been no change in the character of the rezoned area or of land in its immediate or general vicinity since at least the comprehensive zoning revision in 1967 and apparently there had been no change for many years before then.

The rezoned area of approximately 33,605 square feet cannot be developed residentially. It has no frontage on any way, nor does it have any easements over abutting residential parcels for access to streets or ways. The rezoned area has been of no value at all to petitioner since it was rezoned in 1969, and there has been no separate assessment of the rezoned area since 1969. It continued to be assessed as a part of the 7 acre parcel.

A zoning ordinance enjoys a presumption of validity, and, where its reasonableness is fairly debatable, the judgment of the local authorities will be sustained. Turnpike Realty Co. v. Dedham, 362 Mass. 221 (1972), cert. den., 409 U.S. 1108 (1973); Burnham v. Board of Appeals of Gloucester, 333 Mass. 114 (1955). To overcome this strong presumption, the complaining party must show beyond a reasonable doubt that the ordinance conflicts with the enabling act or Constitution. Crall v. Leominster, 362 Mass. 95 (1972); Addison- Wesley Publishing Co. Inc. v. Reading, 354 Mass. 181 (1968). A court will validate a zoning ordinance unless it is shown that the ordinance is arbitrary and unreasonable, or substantially unrelated to the public health, safety, morals, or general welfare. Nectow v. Cambridge, 277 U.S. 183 (1928); Broken Stone Co. v. Weston, 346 Mass. 657 (1964).

G. L. c. 40A, § 2 requires that all zoning "regulations and restrictions shall be uniform for each class or kind of buildings, structures of land, and for each class or kind of use, throughout the district ... Due regard shall be paid to the characteristics of the different parts of the city or town, and the zoning regulations in any city or town shall be the same for zones, districts or streets having substantially the same character." Singling out one lot for treatment different from that accorded surrounding land indistinguishable in character constitutes illegal spot zoning. McHugh v. Board of Zoning Adjustment of Boston, 336 Mass. 682 (1958); Whittemore v. Building Inspector of Falmouth, 313 Mass. 248 (1943); Leahy V. Inspector of Buildings of New Bedford, 308 Mass. 128 (1941). In each of the above cases the municipality had rezoned a small lot to benefit its owner, but the practice is equally illegal if done to benefit adjoining landowners. Schertzer v. Somerville, 345 Mass. 747 (1963).

The validity of an amendment to a zoning ordinance, like that of an original ordinance, must be tested by its compliance with the enabling act. Shannon v. Building Inspector of Woburn, 328 Mass. 633 (1952); 122 Main St. Corp. v. Brockton, 323 Mass. 646 (1949). However, "the criterion applicable to a change of established lines may impose limitations not present when zoning is first adopted." Shapiro v. Cambridge, 340 Mass. 652 , 658 (1960). For example it is relevant, though not controlling, that there has been no change in the character of an area between the time of the enactment and amendment of the ordinance. Rosko v. Marlborough, 355 Mass. 51 (1968). The location of the pre-existing zoning boundary line may also be considered. Schertzer v. Somerville, supra. It is also relevant that the rezoning included only a small portion of an existing zoning district. See Gricus v. Supt. and Inspector of Buildings of Cambridge, 345 Mass. 687 , 690 (1963). Most importantly, there must be shown a characteristic of the rezoned land that distinguishes it from surrounding land within the same district. Caputo v. Board of Appeals of Somerville, 331 Mass. 547 , 549 (1954).

Although a change in an area is not necessary to support a change in its zoning classification, there must still be shown a reasonable relationship between the newly permitted development and the land designated for it. See Cohen v. Lynn, 333 Mass. 699 , 704 (1956); Raymond v. Commr. of Public Works of Lowell, 333 Mass. 410 , 413 (1956). The land rezoned by the city possesses no special characteristics that tailor it to residential development, and it is certainly no more suited for that purpose than the remainder of the large commercial district of which it was formerly a part.

It is true that the rezoning of an unchanged and only slightly differentiated area within a zoning district has been allowed. However, close analysis reveals that such cases involved attempts by a zoning authority to accommodate recently manifested public needs, such as the need for additional multi-family rental units, Lamarre v. Commr. of Public Works of Fall River, 324 Mass. 542 (1949), or the need for low income housing. Board of Appeals of Hanover v. Housing Appeals Committee, 363 Mass. 339 , 361-63 (1973). No such important public purpose has been alleged or shown by the city with respect to the small parcel at issue here.

While the amended ordinance is entitled to the presumption of validity, it is pertinent to note that the city offered no evidence in this case and has not advanced a single justification in support of its amended ordinance. It is quite likely that the city rezoned the relatively small area simply to oblige owners of adjacent resi- dential plots, who did not desire their land to border a commercial district and who desired an unoccupied, undeveloped residentially zoned buffer area between their lots and the commercial zone. If that was the reason, then this case is controlled by Schertzer v. Somerville, 345 Mass. 747 (1963). In Schertzer, a small, essentially undeveloped corner lot that had been zoned for business use for 30 years was reclassified as a residential district "at the instigation of citizens who objected to a particular proposed business use." Id. at 752. The Court concluded: "This constituted arbitrary and unreasonable action. If not spot zoning in the sense of picking out an undifferentiated area within a district ... it was analagous to it and equally violative of the principle of uniformity." (emphasis supplied). Ibid. Similarly, if, as appears to be the case, the city rezoned a portion of petitioner's land merely to indulge neighboring citizens, the action was arbitrary and unreasonable and constituted a modified form of spot zoning. See also Canteen Corp. v. Pittsfield, 1976 App. Ct. Adv. Sh. 554. The heavy burden of proof required to invalidate a zoning ordinance as spot zoning has been met by the petitioner in this case. The zoning amendment in issue is not fairly debatable.

Petitioner filed fifteen requests for rulings, one of which (11) was withdrawn. Requests numbered 4 and 9 are denied as immaterial and inapplicable. Request numbered 15 is denied as inapplicable to facts found. Requests numbered 1, 2, 3, 5, 6, 7, 8, 10, 12, 13 and 14 which deal with abstract principles of law are granted.

Based on all the eVidence, I find and rule that the rezoned portion of petitioner's land is indistinguishable in character from land in the adjoining commercial district; that the 1969 amended ordinance reclassifying petitioner's land from C-2 General Commercial Zone to R-1-C Single Family Residential Zone has no reasonable relation to the purposes set forth in G. L. c. 40A, § 2, and violates that statute's principle of uniformity; that it is invalid and unenforceable; and that the City of Brockton's Zoning District Map dated November 10, 1967, should be reinstated to the extent that it applies to petitioner's land by classifying it as C-2 General Commercial Zone.

Judgment to enter accordingly.