MISC 86617

October 12, 1978

Berkshire, ss.

Sullivan, J.


The petitioner, Donald E. Rancatti, claiming to be the owner of land in the Town of Hancock, brought this petition pursuant to the provisions of G. L. c. 240, §14A and c. 185, §1 (j 1/2) for a determination of the validity of the zoning by-law of the Town of Hancock. The case was submitted on the following Agreed Statement of Facts:

Now come the parties to the above-captioned matter and stipulate that the following constitute the operative facts in the within dispute:

(1) The Plaintiff is an individual and land owner within the boundaries of the Town of Hancock, Berkshire County, Massachusetts and is subject to the ordinances, bylaws and regulations promulgated therein, and specifically to the Town of Hancock Zoning Bylaw approved by the Planning Board on September 15, 1970, adopted by the annual Town Meeting of the Town of Hancock on February 8, 1971 and approved by the Attorney General on March 18, 1971.

(2) That the Defendant is a municipal body politic located in Berkshire County, Massachusetts.

(3) That the copy of the Zoning Bylaw of the Town of Hancock referred to above is the bylaw which was in effect at the time of commencement of this action for all the land in Hancock, including land owned by the Plaintiff and that his land is restricted in accordance with the terms of said bylaw.

(4) Under a prior Town of Hancock Zoning Bylaw adopted in 1959 there appears under "Section 2 PERMITTED USES" the following words "....and for commercial purposes if authorized by the Board of Appeals."

(6) The present bylaw, a copy of which is attached to the Plaintiff's Complaint, was approved by the Planning Board on September 15, 1970 and adopted by the Town at its annual town meeting on February 8, 1971 contained the following language as Section IIB.4 "any commercial use provided that the Board of Appeals determines that such use is not injurious, noxious or offensive, is not detrimental to the neighborhood, would not tend to reduce property values and would not be inconsistent with the intent of this bylaw."

(7) The bylaw as adopted by the Town Meeting was transmitted to the Attorney General for approval on February 24, 1971 and the Attorney General endorsed his approval as follows:

Boston, Mass., March 18, 1971

The foregoing amendments to the zoning bylaws adopted under Article 41 are approved except as to Section 2B Clause 4 which is DISAPPROVED and deleted therefrom.

/s/ Robert H. Quinn Attorney General

(8) There is attached to this Agreed Statement of Facts correspondence dated March 18, 1971 addressed to Richard N. Young, Town Clerk, Hancock, Massachusetts from the Department of the Attorney General which correspondence was transmitted to the Town with the Attorney General's approval of that date.

The text of the letter referred to in paragraph 8 of the Agreed Statement of Facts reads as follows:

I enclose the amendment to zoning by-law adopted under Article 41 of the warrant at the annual town meeting held February 8, 1971, with the approval of the Attorney General endorsed thereon except as to § 11 B, clause 4 which is disapproved and deleted therefrom for the reason that giving discretion to the Board of Appeals to grant "any commercial use" throughout the town, sub- ject only to its judgment that such use is not injurious, noxious, or offensive, is not detrimental to the neigh- borhood, not tending to reduce property values and not inconsistent with the intent of the by-law is too vague a standard to be in compliance with the requirements of G.L., Ch, 40A, § 4, which controls the issuance of special permits. See Clark V. Board of Appeals of Newbury 348 Mass. 407 , where the Court struck down a similiar [sic] provision.

I may point out that an amendment which was more specific as to the particular types of commercial uses which were allowed could be approved.

In addition to the provisions set forth above, the Hancock Zoning By-law, a copy of which is attached to the Petition, also provides as follows, and I so find:

1. Permitted uses as set forth in Section II A include only a) a detached single-family dwelling, b) religious, educational, municipal or agricultural use, and c) as accessory uses those "customarily incidental" to the principal use such as the practice of a profession.

2. With a special permit from the Board of Appeals, private clubs not conducted for profit, trailer parks and quarrying also are permitted in the Town.

3. The minimum lot size is two acres, and only one single-family residence may be placed on a lot.

4. There is only one zone in the Town.

The Agreed Statement of Facts is silent as to the characteristics of the land owned by the petitioner, its location, the type of buildings situated thereon, its present and any different prior use and any other pertinent descriptive factors. The attack on the by-law, then, is a facial one. The petitioner assails the by-law as it emerged from the Attorney General's purview, not the by-law as originally adopted by the Town of Hancock. He seeks to have this Court order the respondent "to hold hearings and consider the question of providing for commercial development within the town." The Town already has had over seven years to amend the by-law to conform to the requirements of Chapter 40A and has not done so. The conclusion, therefore, is inescapable that the Town is content with the by-law in its present form.

At the time here material prior approval of the Attorney General was a condition precedent to the validity of a by-law. G. L. c. 40, §32. [Note 1] The provisions of Section II B4 were disapproved

for the reason that giving discretion to the Board of Appeals to grant "any commercial use" throughout the town, subject only to its judgment that such use is not injurious, noxious, or offensive, is not detrimental to the neighborhood, not tending to reduce property values and not inconsistent with the intent of the by-law, is too vague a standard to be in compliance with the requirements of G. L., Ch. 40A, §4, which controls the issuance of special permits. See Clark v. Board of Appeals of Newbury 348 Mass. 407 , where the Court struck down a similar provision.

If the Town, the present petitioner or any other aggrieved party had wished to challenge the Attorney General's action, then the remedy would have been to file a petition for certiorari in either the supreme judicial court or the superior court within two years of disapproval. [Note 2] Since this was not done, his decision must be assumed to have been correct. This is not to say that in a proper case this Court might not be an appropriate forum for declaratory relief challenging the Attorney General's action pursuant to G. L. C. 231A, but the present action is not so framed.

If then an inquiry as to the deletion of Section II B4 is foreclosed, the next step is to determine whether the provisions of the by-law as to commercial use are severable. In other words, we are faced with the dilemma as to whether the remaining provisions of the by-law can remain in force without those deleted by the Attorney General. The test, as was said in Del Duca v. Town Administrator of Methuen, Mass. Adv. Sh. (1975) 1792, 1810-11, is

[w]henever various portions of a statute have independent force, thus justifying the inference that the enacting body would have passed one without the other, ... [a] court will uphold the remainder of the enactment after the offending portion has been stricken.

My conclusion is that the zoning sections are not so interwoven that the entire by-law falls without the authorization to the Board of Appeals by special permit to recognize the need for other than residential uses in the Town. It is true that the by-laws which preceded that now in effect did indeed have like provisions so the pattern was typical. If the voters of Hancock had intended, however, that there be no zoning without some provision for business other than those protected as nonconforming uses, there has been sufficient time for appropriate action to have been taken by either the repeal of all existing zoning laws or an amendment so framed as to accord only permissible discretion to the Board of Appeals. See MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 637-38 (1970). Inaction by the Town appears to be acquiescence and is some evidence that the voters would have enacted the by-law without Section II B4.

There are grave doubts, however, as to whether the resulting zoning by-law can withstand attack on constitutional grounds. It is true that the supreme judicial court has held that G. L. c. 40A does not require either the division of a city or town into zones, Granby v. Landry, 341 Mass. 443 (1960), or an example of each class of zoning district therein. Noonan v. Moulton, 348 Mass. 633 (1965). However, the zoning picture in Hancock is more extreme. With certain minor exceptions the Town now is zoned only for single-family residences of which one only is permitted on the minimum two acre lot, each residence to have not less than 768 square feet of living area for each family occupying the building (see Section III A4). The latter is the maximum requirement permitted by G. L. c. 40A, §2, and the two acre lot may be the greatest minimum lot size hereafter recognized in Massachusetts. Wilson v. Town of Sherborn, Mass. App. Ct. Adv. Sh. (1975) 643, appeal denied, Mass. Adv. Sh. (1975) 2159. When the Hancock zoning by-law is read as a whole as I have done, it is hard to escape the conclusion that it is invalid on its face. The rule is, as Justice Goodman said in the case last cited at page 647,

It is, of course, true that a zoning by-law enjoys a presumption that it is not in "conflict [] with some constitutional provision or the enabling statute" and will be upheld if its "reasonableness ... is fairly debatable ...." Aronson v. Sharon, 346 Mass. at 602. However, debatability in terms of generalities is not enough to justify two-acre zoning. For such justification, the town must be "able to bring forward" some "advantages" which are "tangible" and not "nebulous." See 122 Main St. Corp.v. Brockton, 323 Mass. 646 , 651 (1949). It must appear from the record that there is "a reasonable basis for the judgment of the town meeting" that there are special needs that are met by two-acre zoning. See Turnpike Realty Co. Inc. v. Dedham, Mass. , (1972) , cert. den 409 U. S. 1108 (1973).

No evidence has been presented on behalf of the Town to justify questionable provisions or the zoning by-law. I understand although this is not evidence in the case and standing alone no justification for the zoning even if it were, that Hancock is a small rural community. And there is much to be said for allowing such a community to judge for itself what best meets its needs, but at some point such judgments must yield to constitutional standards. That point has now been reached.

Courts in other jurisdictions have split on the issue of single- use zoning. Missouri in the leading case of City of Moline Acres v. Heidbreder, 367 S.W.2d 568 (Mo. 1963), and Michigan in Gundersen v. Village of Bingham Farms, 372 Mich. 352 (1964), have rejected the concept. Others have concluded that the nature of the town justifies the restrictive zoning. The leading case upholding single-use zoning is Valley View Village, Inc v. Proffett, 221 F. 2d 412 (6th Cir. 1955); accord, Cadoux v. Planning & Zoning Commission, 162 Conn. 425, cert. denied, 408 U.S. 924 (1972), and Gautier v. Town of Jupiter Island, 142 So.2d 321 (Fla. App. 1962).

As recognized above a single district encompassing an entire town has been upheld in Massachusetts. Also upheld has been the failure to include each category of use in a town. [Note 3] Hancock has gone further (albeit by executive ruling) in now having what basically is single-use zoning in a single zone encompassing the entire town and, in addition, requiring stringent minimum lot sizes and floor areas. Absent evidence to support such limitations I find and rule that they are invalid.

Decree accordingly.


[Note 1] Cf. G. L. c. 40A, §5, inserted by St. 1975, c. 808.

[Note 2] G. L. c. 249, §4, as amended, St. 1973, c. 1114, §289. In Town of Concord v. Attorney General, 336 Mass. 17 (1957), the Supreme Judicial Court held mandamus to be a proper remedy even though the Attorney General had acted, whereas this extraordinary writ customarily affords relief from inaction. The Concord decision, however, subsequently has been confined to its own facts. Senkarik v. Attorney General, 357 Mass. 211 , 212 (1970); Town of Reading v. Attorney General, 362 Mass. 266 , 269 (1972).

[Note 3] As to a moratorium on apartments, see Collura v. Town of Arlington, Mass. Adv. Sh. (1975) 1753.