MISC 91718

April 11, 1979

Randall, C. J.


A complaint was brought under the provisions of G. L. c. 240, §14A and c. 185, §l (J 1/2) by The Massachusetts Bay Federation Council Inc., Boy Scouts of America (Boy Scouts), to determine the validity of an amendment to the zoning by-law of the Town of Bedford (town), which reclassified plaintiff's land from Residence R to Industrial B.

The plaintiff does not allege any infirmity in the amended by-law but asks essentially that this Court make a determination that the amendment is valid. The town has admitted all of plaintiff's allegations, and likewise prays that this Court, declare the amendment valid.

After this action had been filed on September 19, 1978, the R & W Realty Trust, (R & W), which had entered into an agreement to purchase the land prior to the amending of the by-law, was permitted to intervene as a party plaintiff in this suit.

Before this action was brought in the Land Court, one Thomas Kneeland had brought suit in Middlesex Superior Court challenging the validity of the amendment. He thereafter filed a Motion to Intervene in the Land Court as a defendant intervenor in the present action, which motion was allowed on November 15, 1978. The primary basis for his challenge was that the rezoning, which allegedly affected nearby property owned by him, constituted illegal spot zoning. On February 20, 1979, all parties entered into a stipulation of dismissal of the Middlesex Superior Court case, which had been transferred to the Land Court and consolidated with this action. At the same time, Kneeland withdrew with prejudice from this matter. Although the remaining parties seek only a declaration that the amendment to the zoning by-law is valid, this Court will nevertheless adjudicate the issue of whether the amendment was an act of spot zoning.

Upon examination of a stipulation of facts and exhibits submitted by the parties, the latter of which being incorporated into this decision for purposes of any appeal, the Court finds the following facts.

The Boy Scouts are owners of a freehold estate in possession in land situated in Bedford, Middlesex County, Massachusetts. This parcel of land (locus), commonly known as Camp Oak, was acquired by the Boy Scouts in or around the year 1930 and consists of approximately 56 acres. The property is presently the subject of a purchase and sale agreement dated October 17, 1977, by which the Boy Scouts are to transfer title to the locus to R & W.

The locus is situated in the northeastern corner of the town, and is described in Certificate of Title #150807, registered with the Middlesex South Registry District of Land Court in Book 844, Page 57. It is abutted on the west by Route 3, a limited access, divided highway; on the south by a strip of wooded area and wetlands created by the Shawsheen River, which is conservation land owned by the town; on the east by the Middlesex Turnpike; on the north by a parcel containing approximately 10 acres, zoned Industrial A on which is situated Advanced Metals Research Group, 160 Middlesex Turnpike, and by a parcel of wooded land, owned by one Violet Pierce and containing approximately 80 acres zoned for Residence R. On the northeastern side of the Middlesex Turnpike, across from plaintiff's land, is located a parcel containing approximately 41 acres which is zoned Residence R and is presently used as a 940 member gun club.

In the late 1940's, the northeastern sector of the town was largely undeveloped wooded land. In 1953-1954 the Common- wealth's Department of Public Works constructed a limited access four-lane highway -- Route 3 -- across the northeastern corner of the town. A parcel of approximately 175 acres, including all of plaintiff Boy Scout's property was zoned Residence R on April 30, 1959, pursuant to an article passed at a Special Town Meeting. Since 1959, the section of the town located east of Route 3 has undergone substantial changes in character. During the period from 1959 to 1978, 15 parcels to the east of Route 3 and south of the locus were rezoned to Industrial A or Industrial C. The corridor of industrial land between Route 3 and Middlesex Turnpike, in Bedford, now includes the premises of numerous corporations.

On January 3, 1978, the Planning Board of the town petitioned the town's Board of Selectmen to amend the Protective By-Law by rezoning the locus from Residence R to Industrial B. Pursuant to published notice, on February 13, 1978, the Planning Board held a public hearing regarding Article 53, which was the aforesaid proposal to rezone the locus from Residence R to Industrial B. On April 4, 1978, Article 53 was adopted by a vote of 383 in favor, 102 opposed. The Attorney General, on July 17, 1978, approved the zoning by-law amendment effected by Article 53.

The 1978 rezoning was based in part on a Town of Bedford Comprehensive Plan prepared by planning consultants for the Town of Bedford Planning Board and the Massachusetts Department of Community Affairs. The plan proposed that the locus "be rezoned industrial between the Middlesex Turnpike and Route 3 if such applications are made by [Boy Scout Camp]". In support of the proposed reclassification, the plan stated: "While highly suitable as a conservation area, the open space is not of a quality that is outstandingly above that available in the rest of the town. An extensive open space system has been recommended west of Route 3. The area east of Route 3 is notable for its accessibility to major regional traffic arteries and is also adjacent to existing industry."

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). The presumption of validity in the present case has not even been questioned here.

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). There must be shown also 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).

Finally, 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).

Applying these principles to the present case, it is plain that the reclassification of the locus did not constitute spot zoning. The locus is particularly suited for industrial development because of its unique location between two major highways. Furthermore, the general area of which the locus is a part has evolved substantially into an industrial tract since the 1959 zoning. The reclassification of this 56 acre relatively remote land also allows the town to serve the legitimate purpose of segregating industrial activity so that it will not interfere with either residential or commercial uses. The locus appears ill-suited for residential development because of its location far from the town's center and existing services; industrial use of the property would not subject the town to the same degree of water and sewer expenses. Finally, this reclassification was undertaken as part of a comprehensive re-evaluation begun in 1970 of present and anticipated uses of all land in Bedford. It was not an isolated act done for the personal benefit of the owner of the rezoned land or adjoining parcels.

In sum, this Court finds that the adoption of Article 53 was not an act of spot zoning, and is valid.

Judgment accordingly.