MISC 87494

October 13, 1978

Randall, C. J.


This is a petition under G. L. c. 240, §14A and c. 185, §1 (j 1/2) to determine the validity of the April 23, 1977 amendment to the Bridgewater zoning by-law increasing minimum lot size in residence district A and B from 22,500 square feet to 43,560 square feet.

A hearing was held on July 25, 1978 at which four witnesses testified. Ten exhibits, incorporated herein for the purpose of any appeal, were introduced. Petitioner submitted a brief on September 11, 1978. Respondent's brief was received October 3, 1978.

Petitioner is the owner of nineteen vacant lots located in a residence B district in Bridgewater, being lots 9, 10, 11, 12, 13, 27, 28, 29, 30, 31, 32, 33, 34, 36, 37, 38, 39, 40, 50, shown on exhibit 1, a plan of the Bonnieview Subdivision dated May 15, 1969 and recorded Ju1y 24, 1969 in the Plymouth Registry of Deeds. In 1969 the minimum lot size required by the town zoning by-law in a residence A or B district was 22,500 square feet. Petitioner acquired title to the nineteen lots on August 10, 1976 at a mortgage foreclosure sale. On April 23, 1977 the town zoning by-law was amended to require a minimum lot size of 43,560 square feet in a residence A or B district. As more than seven years had passed, the subdivision was no longer protected under former c. 40A, §7A as amended through 1965, now G. L. c. 40A, §6 against zoning changes. Petitioner now argues the town has no reasonable justification for requiring a lot size of 43,560 square feet in the Bonnieview Subdivision.

It is well established that every presumption is to be afforded in favor of the validity of a by-law, and if its reason- ableness is fairly debatable the judgment of the local authorities will be sustained. Turnpike Realty Co. v. Dedham, 362 Mass. 221 , 233 (1972), cert. den., 409 U.S. 1108 (1973). Consequently, petitioner has a heavy burden to discharge to show that the by-law amendment is arbitrary and unreasonable, 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). Petitioner has not sustained this burden of proof.

There has been no claim or proof that the lines of the residence zones have been arbitrarily or discriminatorily drawn. The 1977 by-law amendment did not change the boundaries of residence district A or B but merely increased the minimum lot size therein. The petitioner has presented little evidence to support her allegation in paragraph 11 of her petition that "the topography of the area, soil conditions, and the past and present development of the area, the high cost of completing all necessary ways and municipal services, the protection of the safety, health, welfare, moral or convenience of the citizen provide no reasonable justification or requirement or need that lots in the 'Bonnieview Subdivision', which is in Residence District B, have at least 43,560 square feet."

The Town of Bridgewater, located approximately 30 miles southwesterly of Boston, is basically residential and rural in character serving as a bedroom community to Brockton and Boston. There are a few industries near the center of the town. It has a population of approximately 14,500 and has experienced a tripling of residential usage in the past seven years. There is currently a water shortage in Bridgewater and a limitation on use has been in effect for the past year and one-half. Three years ago the main well developed a high nitrate content rendering it unsuitable for drinking purposes. The remaining wells have insufficient pumping capacity to meet the peak demands of the summer season. The town also has certain soil condition problems and a need for leaching areas. The minutes of the planning board meeting and public hearing, exhibits 3, 4, 5 and 6, reveal that the problems of the town were considered by the board in conjunction with its recommendation for an increase in the minimum lot size requirements.

Among the permissible purposes of zoning by-laws enumerated in former c. 40A, §3 are "to prevent overcrowding of land; to avoid undone concentration of population...." The 43,560 square foot minimum area requirement advances these purposes. Other advantages of a one acre (43,560 square feet) minimum area require- ment are stated in Simon v. Needham, 311 Mass. 560 , 563-564 (1942). Petitioner has submitted no evidence disputing the existence of the problems in Bridgewater or showing that the challenged by-law is not reasonably related to the allieviation of the enumerated town problems or to the accomplishment of the permissible zoning objectives set forth in Simon v. Needham. On this state of the evidence the Court finds that the petitioner has not sustained her burden of proving the by-law invalid.

Petitioner has alleged that the by-law is confiscatory in nature and effects a taking of property without compensation. She herself testified that her nineteen lots can be combined to make eight lots which meet the by-law minimum area requirements. Some of the nineteen lots are not buildable apart from the effect of the challenged by-law; some do not meet the 22,500 square feet minimum area requirement of the old by-law and some did not pass percolation tests. (Tr. 72-73). There is insufficient evidence to find diminuition in market value as a result of the by-law amendment, and on this state of the evidence the Court concludes the challenged by-law does not operate as an unconstitutional deprivation of property. While the amendment may render petitioner's land less profitable to develop for residential use, this is not a sufficient basis for invalidating the by-law. Simon v. Needham at 565; Wilson v. Sherborn, 75 Mass. App. Ct. Adv. Sh. 643, 655-56, leave to obtain further review denied 75 Mass. Adv. Sh. 2159.

Although not pleaded, petitioner claimed at trial there were procedural irregularities in the promulgation of the amendment which rendered it invalid. First petitioner claimed that notice of a public hearing before the planning board on the proposed amendment had not been published in the town newspaper as required by G. L. c. 40A, §5. As there are no allegations in petitioner's complaint challenging the procedure, defense council had not come to trial prepared to litigate this matter. However, a copy of the newspaper publication was obtained from the Attorney General's Office, and petitioner withdrew her challenge on that ground. (Tr. 41). Then later in the trial petitioner claimed that the proposed amendment had not been included in the warrant before the town meeting which voted on the amendment. When questioned by the Court, petitioner's counsel admitted he had not previously looked at the warrant for the April 23, 1977 town meeting to discover whether or not the proposed amendment was included therein. (Tr. 81). Defense counsel produced a copy of the town warrant, exhibit 9, which contains as article 6 the proposed by-law amendment which is the subject of this action. The Town Clerk testified that exhibit 9 is an exact copy of the record in the Clerk's Office and the Court so finds. Petitioner has proven no procedural irregularities with respect to the zoning by-law amendment.

Thus, to sum up, the Court finds that petitioner has not sustained the heavy burden of proof on her to prove the by-law invalid, or that the lines of the residence zones have been arbitrarily or discriminatorily drawn or that there were procedural irregularities in the passage of the zoning by-law amendment.

Consequently, the petition is dismissed.