MISC 88851

February 21, 1979

Middlesex, ss.

Sullivan, J.


This is a complaint filed by Louis Freedman, as Trustee of the Freedman Trust ("Freedman") and Bradbury Realty Co., Inc. ("Bradbury") against the City of Medford and the members of its City Council pursuant to the provisions of G. L. c. 240, §14A and c. 185, §1 (j 1/2) for a determination of the validity of an amendment to the Medford zoning ordinance which changed the zoning of the plaintiffs' land from Industrial to Apartment 1.

The complaint alleges (a) that the plaintiff, Louis Freedman, as Trustee of Freedman Trust, is the owner of a parcel of land located on the Fellsway in said city consisting of approximately 140,487 square feet, that the plaintiff, Bradbury Realty Co., Inc., is the ovmer of three parcels of land in said Medford, one on Middlesex Avenue, consisting of approximately 93,654 square feet, a second parcel of land on Woodruff Avenue, consisting of 154,917 square feet, and a third parcel of land on the Fellsway, containing approximately 5,734 square feet; (b) that the Community Development Board held a public meeting on December 13, 1977 to consider a petition presented by the Medford City Council seeking to amend the zoning map of said City with respect to the plaintiffs' land, sometimes referred to as the Plasticrete Site, and thereafter voted not to favor rezoning of the plaintiffs' land from Industrial to Apartment 1; (c) that on January 10, 1978, said City Council held a public hearing to weigh the amendment of Chapter 29 of the Zoning Ordinances to so rezone the plaintiffs' land and such amendment was adopted; (d) that said land has been used for industrial purposes for at least twenty-five years and (e) that said change constitutes spot zoning and as such is invalid and violates the requirement of uniform classification. The complaint prays that the Court declare said amendment to be invalid as spot zoning and for such other and further relief as the Court may determine. The defendants admit that the plaintiffs are owners of real estate affected by the zoning amendment and have standing to maintain this complaint. The only issue in contention is the validity of the zoning amend- ment which the plaintiffs have attacked both as spot zoning, as violative of the statutory requirement of uniformity of classification, as confiscatory and as adopted in response to neighborhood pressures rather than for the reasons specified in G. L. c. 40A, §l.

A trial was held at the Land Court on November 27 and December 13, 1978 at which a stenographer was appointed to record the testimony. Immediately prior to the commencement of the trial the Court took a view in the presence of counsel. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal.

On all the evidence I find and rule as follows:

1. The plaintiffs severally are the owners of some four parcels of land situated on Middlesex Avenue, Woodruff Avenue and the Fellsway in the City of Medford together totalling about 390,000 square feet or nine acres. The premises commonly are known as the Plasticrete Site. The defendants are the City of Medford and the members of its City Council at the time of the rezoning.

2. From 1936 to 1964 that portion of the property now owned by Louis Freedman, as Trustee, was assessed to Massachusetts Cement Block (Exhibit No. 4), which manufactured cement blocks on the locus for construction purposes. Its successor, Plasticrete, continued to use the entire locus for industry until a fire damaged the building, and the structure was razed in 1975. Although Plasticrete moved in 1976, it is still a tenant under a lease and pays a monthly rental. At present, the land is vacant except for a portion used to park school buses.

3. The assessors' records (Exhibit No. 3) show that Bradbury's 93,654 square foot parcel has been vacant land (other than for two billboards formerly situated thereon) at least since 1936. The assessors' records were not introduced as to said corporation's other parcels containing 154,917 square feet and 5,734 square feet respectively, nor was there any specific testimony directed to the uses of said parcels. It was apparent from the view, however, that the largest of the three parcels comprised a part of the Plasticrete Site. It should be noted that one of the assessors had been summoned to bring all the assessors' records as to the assessment of taxes on the plaintiffs' properties from 1940 to date, but that Exhibits No. 3 and 4 do not appear to cover all such parcels.

4. Medford first adopted its zoning ordinance in 1925. So far as appears, the locus then was zoned industrial and remained so classified until January, 1978. The zoning of the land on the southerly side of Woodruff Avenue at the time of the adoption of the ordinance in 1925 was not called to the Court's attention nor were its then characteristics. However, various Land Court records, of which we take judicial notice, are enlightening. It appears from Land Court Registration Case No. 22778 that a plan of house lots dated September 7, 1925 covering the area bounded by Woodruff Avenue on the north, Henley Street on the west, by a line about eighty-five feet northerly of Second Street on the south and by Bradbury Avenue on the east was recorded in Plan Book 361, Page 21. Subsequently title to a portion of this land was registered by one of the plaintiffs, and the land subdivided and sold as house lots about 1950. Plans in Registration Case No. 31237 indicate that much of the land south of Woodruff Avenue had been subdivided into house lots as early as 1893. The area now is principally occupied by single family residences, the owners of some of which were interested in the future of the Plasticrete Site. One of the city councillors (and present mayor of Medford) who resided in the area, was a member of a subcommittee formed to study future uses of the site. A second member was raised in the area, and his mother still lives there.

5. In the summer of 1977 a developer petitioned the City Council (Exhibit No. 6) to change the zoning of the Plasticrete Site to Apartment 2 in which multiple dwellings with a height not in excess of 125 feet are permitted, but he abandoned the project after neighborhood opposition surfaced. Thereafter the City Council considered the rezoning of the site from Industrial to Apartment 1 in which district multiple dwellings are limited to thirty-five feet, or three stories. The matter was referred to the Community Development Board in November, 1977. A public hearing was held during the following month, and the Community Development Board voted against the proposal and so advised the council. After a public hearing the latter body adopted an amendment to its zoning ordinance "changing land located at, and known as 278 Middlesex Avenue, and 909 Fellsway, Medford, Massachusetts, from Industrial Zone to an Apartment 1 zone, consisting of 389,058 square feet of land."

6. The southerly boundary of the locus is Woodruff Avenue. On the opposite side of said street are single-family residences. While no evidence was introduced as to the size of the residential area, it appeared to comprise several blocks. The westerly boundary or locus is the Fellsway, a heavily traveled highway under the jurisdiction of the Metropolitan District Commission (MDC). On the westerly side of the Fellsway across from the locus is the Federal Paper Board Co., Inc., a factory, an MDC yard and some scattered houses. The locus is bounded on the north by the land of the Boston and Main Railroad. Land to the northwest of the railroad right of way is zoned Apartment 2 and on the northeast, Industrial. Apartment houses recently have been constructed in the former, and buildings of Graham Brothers and Sugarman Brothers (Statler Paper) in the latter on Middlesex Avenue. At the corner of Woodruff and Middlesex Avenues adjacent to locus is a transformer of Massachusetts Electric Company. On the opposite side of Middlesex Avenue which is zoned Commercial 1 are a Bonanza fast food restaurant and a Star Market supermarket and shopping center. Beyond the Statler Paper complex to the north in the direction of Malden are small business facilities.

The Plasticrete Site is framed by two heavily traveled main arteries, a railroad right of way and a residential street. Its only immediate abutter is a utility, but in close proximity to it on two and two-thirds sides are industrial and commercial uses. Directly across Woodruff Avenue is a residential neighborhood and across the railroad track for about one-third of the boundary is an area of apartment houses. The nine acre site in question heretofore has been zoned as an Industrial zone. Is it permissible for the City now to rezone the area for multi-family dwellings not in excess of three stories? At the outset it may be stated that the plaintiffs contend that it is not economically feasible to develop the site for uses permitted in an Apartment 1 District although it would be in an Apartment 2 District. No proof of this assertion was submitted, and it will not be further considered.

The principles which govern the change of zone frequently have been stated. As was said by Chief Justice Hale in a review of the applicable law in Canteen Corp. v. Pittsfield, Mass. App. Ct. (1976). [Note 1]

The test of validity of an amendment of a zoning ordinance or by-law is whether it complies with the terms of the enabling statute. Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220 , 228 (1964). Beal v. Building Commr. of Springfield, 353 Mass. 640 , 643 (1968). Similarly, a zoning ordinance or by-law may be amended to achieve any of the purposes for which under G. L. c. 40A an ordinance or by-law may be adopted. Shannon v. Building Inspector of Woburn, 328 Mass. 633 , 637-638 (1952). A regulation that is within the scope of the enabling statute may be valid even though it results in hardship to some landowners by depriving them of some beneficial use of their land. Caires v. Building Commr. of Hingham, 323 Mass. 589 , 594 (1949).

"A municipality may from time to time reexamine the location of a boundary between districts and shift its location as sound zoning principles dictate." Schertzer v. Somerville, 345 Mass. 747 , 751 (1963), and cases cited. While it is well established that local bodies have wide latitude to determine the particular location of zoning district boundaries, the criteria 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). The existing location of a zoning boundary is a circumstance to be weighed. Schertzer v. Somerville, supra, at 751.

Every presumption is to be made in favor of the validity of an amendment, and if its reasonableness is debatable, the judgment of the local authorities will prevail. Caires v. Building Commr. of Hingham, supra, at 597 (1949). Cohen v. Lynn, 333 Mass. 699 , 705 (1956). Crall v. Leominster, 362 Mass. 95 , 101 (1972). An amendment will be sustained unless there is no substantial relation between it and the expressed purposes of the zoning act. Conversely, it will be held invalid if it is arbitrary, unreasonable, or substantially unrelated to the public health, safety, convenience, morals or welfare. Schertzer v. Somerville, supra, at 751.

In determining the validity of such rezoning, however, changes in the character or use of property in the area since the original zoning enactment, Whittemore v. Building Inspector of Falmouth, 313 Mass. 248 , 249 (1943), the amount of land rezoned, Gricus v. Superintendent & Inspector of Buildings of Cambridge, 345 Mass. 687 , 690 (1963), the beneficiary of the amendment, see Mitchell v. Board of Selectmen of South Hadley, 346 Mass. 158 , 159 (1963), and the existing location of the boundary, Schertzer v. Somerville, 345 Mass. 747 , 751-52 (1963), are relevant considerations. It is unlawful to single out a particular parcel of land that is indistinguishable in character from neighboring land in the same zoning district for special treatment. Such attempts have been invali- dated as "spot zoning." See Canteen Corp. v. Pittsfield, supra at 559-60.

The plaintiffs have made much of the motives of the owners of homes in the vicinity of the Plasticrete Site and of certain members of the City Council. It is a matter of common knowledge that under normal circumstances the owners of homes adjacent to an industrial zone understandably would prefer to have such uses curtailed or a buffer zone inserted between their homes and commercial activities. And such motives alone would not impugn the integrity of the City Council vote if legitimate reasons existed for the change. There is nothing to show that members of the Council were acting solely in behalf of the residents and not in the best interests of the City as they interpreted them. Caires v. Building Commissioner of Hingham, 323 Mass. 589 , 596 (1949). It is, of course, proscribed to set a site off from similar lots zoned for industrial use solely at the instigation of citizens who object to a continuance of use of property for industrial uses. See Schertzer v. Somerville, supra at 752. A corollary of this principle is that there must be uniform classification of land of like characteristics. See Canteen Corp. v. Pittsfield, supra. The plaintiffs complain that the action to which they object was spot zoning, but spot zoning customarily affects an area rezoned for the benefit of its owner, not for his displeasure. See, e.g., Beal v. Building Commissioner of Springfield, 353 Mass. 640 (1968); Mitchell v. Board of Selectmen of South Hadley, supra; Whittemore v. Building Inspector of Falmouth, supra. While rezoning such as that attacked here may be viewed in terms of spot zoning, it is more accurately the violation of the principle of uniformity which in fact gives rise to the plaintiffs' complaint.

The substantive changes which have occurred since locus was characterized as industrial are only two: the razing of the structures thereon and the construction of apartments in the adjoining Apartment 2 district. The land south of Woodruff Avenue always was residential; it is perhaps now more so. The land abutting locus on the northeast has become increasingly industrial while that of the utility on the southeast remains as it has been for many years. The lands on the opposite side of the Fellsway and of Middlesex Avenue are at least as industry oriented as previously, and commercial uses are considerably greater than in the past.

In the light of the nature of the section of Medford from the northerly side of Woodruff Avenue northerly to the Malden city line within which the plaintiffs' land is located, there is no justifi- cation for zoning the Plasticrete Site differently from the adjoining utility parcel, the Graham Brothers' premises and the Sugarman property. The residential nature of the neighborhood south of Woodruff Avenue was basically the same at the time of the rezoning as it had been when the districts originally were established. Only the Apartment 2 zone appears to be new, but lacking information as to its previous classification this is only an assumption. This change alone together with the fire and resultant razing of the buildings on the locus does not seem sufficient justification for the amendment. There may have been several legitimate reasons for the action of the City Council. It is possible that the dangers of another fire in a location adjoining that of many small homes weighed with its members. The traffic generated on roads already busy might have been concluded to be alleviated by the zoning amendment. Environmental and aesthetic considerations may well have played a part. And if in actuality such factors influenced the Council, the decision of a legislative body familiar with local problems must be afforded weight. Muto v. Springfield, 349 Mass. 479 , 482 (1965). Nonetheless, these reasons rest on speculation only; in view of the history of the site and the nature of the adjoining properties I find and rule that the amendment adopted by the Council is violative of the principle of uniformity mandated by the enabling act. It follows that the amendment is void and unenforceable.

I have not specifically ruled on the plaintiffs' requests for rulings of law since they are treated in substance in my decision.

Judgment accordingly.


[Note 1] Mass. App. Ct. Adv. Sh. (1976) 554.