MISC 123794

October 3, 1989

Bristol, ss.



By complaint filed with the Land Court on June 24, 1987, the Plaintiff, Fall River Construction Co., Inc. ("FRC" or "Plaintiff"), seeks a declaration, pursuant to G.L. c. 240, §14A, as to the validity of a certain amendment to the city of Fall River Zoning Ordinances whereby a portion of an unrestricted zoning district in the City of Fall River ("Fall River" or "City") was rezoned to a two-family residence zoning district ("R-4 District"). FRC is the owner of a parcel of land ("Locus") located within the rezoned area.

On October 20, 1987, FRC filed a motion for partial summary judgment on the issue of the validity of the aforesaid zoning amendment. This motion was heard on December 17, 1987. Thereafter, on December 21, the Court took a view of Locus in the presence of counsel and subsequently, on February 1, 1988, entered an order denying FRC's motion.

The matter proceeded to trial on March 16, 1989, at which time all testimony was recorded and later transcribed by a court­ appointed reporter. One witness, Roland Patenaude, President of FRC, offered testimony and nineteen exhibits were introduced into evidence. A stipulation of certain agreed facts was marked as Exhibit No. 1. All exhibits and certain of such stipulated facts are incorporated herein for purposes of any appeal.

On all of the evidence, I find as follows:

1. On March 10, 1986, FRC entered into a real estate agreement (Exhibit No. 11) for the purchase of Locus, which property consists of the land and buildings known as and numbered 45 Clinton Street in Fall River. As shown on Map No. S-11 of the maps filed with the Fall River Assessors' Office (Exhibit No. 8), Locus consists of approximately 14,000 square feet and is depicted thereupon as a portion of Lots No. 17 and 18.

2. From approximately 1927 to September 30, 1986, Locus was situated in an unrestricted zoning district consisting of some 5,000,000 square feet of land, which district may be described as follows:

. . . bounded northerly by the center line of Cove Street; bounded easterly by the center line of North Main Street; bounded southerly by the northerly bound of a local business district located 150 feet northerly of President Avenue and bounded westerly by Route 79 and the Taunton River. . . . (See Exhibits No. 1 and 10.)

The majority of uses found in this previously unrestricted zone are residential in nature.

3. On April 23, 1986, the City of Fall River granted FRC's application for a building permit (See Exhibit No. 12), which authorized the construction of two condominiums, each consisting of six units. The location of such proposed construction is noted on FRC's application as "36 Pickering Street between Clinton Street and St. James Street."

4. On June 23, 1986, FRC prepared a plan of its proposed subdivision of Locus. This plan entitled "Plan Showing Division of Land owned by Jose S. and Marie E. Pacheco," recorded at Book 79, Page 20 in the Bristol County, Fall River District, Registry of Deeds ("Subdivision Plan") (Exhibit No. 13), depicts a two­family dwelling on Lot No. 17 and a vacant lot on Lot No. 18. It was submitted to the Fall River Planning Board ("Planning Board"), which endorsed it "Approval Not Required" on June 24, 1986, but notice of such submission was never filed with the Office of the Fall River City Clerk so as to obtain the zoning protection of G.L. c. 40A, §6.

5. On June 30, 1986, twenty-four (24) registered voters in the City of Fall River filed a petition (Exhibit No. 3), in accordance with G.L. c. 40A, §5, to rezone a portion of the unrestricted zoning district to an "R-4" (two-family residence) zone. The area proposed for rezoning is highlighted in yellow on Exhibit No. 8 and in black on Exhibit No. 10. As depicted thereupon, such area may be described as follows:

that area bounded northerly by a line 100 feet northerly of and parallel to Clinton Street, extending from the N.Y.N.H. & H.R.R. right of way to 100 feet easterly of Pickering Street, northerly by Clinton Street, easterly by a line 100 feet westerly of and parallel to North Main Street, southerly by a line 100 feet southerly of and parallel to St. James Street, easterly by Garside Street, southerly by Brightman Street and westerly by the N.Y.N.H. & H.R.R. right of way.

The area proposed for rezoning consists of approximately 250,000 square feet of land, made up of primarily residential uses ranging from single-family dwellings to four-or-more family dwellings, the majority thereof being three-family or less.

6. By quitclaim deed dated July 1, 1986, recorded at Book 1687, Page 40 in the Bristol County, Fall River District, Registry of Deeds (Exhibit No. 14), Jose S. and Maria E. Pacheco conveyed Locus to FRC.

7. On July 24, 1986, the Planning Board submitted its recommendation with respect to the proposed zoning amendment to the City Council (See Exhibit No. 4). The Planning Board unanimously recommended that the proposed amendment be enacted for the following reasons:

. . . the proposed area is a very pleasant residential area that has no protection by zoning from the intrusion of objectionable uses that would be detrimental to the reasonable enjoyment of the area and would seriously reduce the value of the existing property.

8. A public hearing on the proposed zoning amendment was held on August 26, 1986. The sole proponent of the amendment at this hearing was one Frederic J. Torphy ("Torphy"), counsel for the resident-petitioners. Torphy advocated the proposed amendment for the following reasons:

. . . because the neighborhood has rapidly been encroached upon by developers . . . putting buildings on lots that were not meant for them because of the unrestricted zoning problems of traffic, the question of fire apparatus being able to go down Pickering Street . . .valuation of properties. . . . (See Exhibit No. 5.)

9. On September 30, 1986, the City Council passed the proposed zoning amendment. Thereafter, on October 2, 1986, the Mayor of Fall River approved the amendment, the same being designated as Ordinance No. 1986-30 (See Exhibits No. 6 and 7). This enactment rendered the majority of the existing structures in such zone nonconforming, but still, for the most part, residential.

10. By letter from the Fall River Building Inspector ("Building Inspector") to FRC, dated December 22, 1986 (Exhibit No. 15), FRC was ordered to cease and desist all construction at the site of Locus until a variance was obtained. The Building Inspector reasoned as follows:

. . . the construction . . . being done is in violation of the State Building [Code] [Section] 114.3 which states in part, any permits issued shall be deemed abandoned and invalid unless work authorized by it shall have been commenced within six (6) months after its issuance.

. . . in the time period which elapsed an ordinance was signed into effect rezoning this area from unrestricted to R-4 two family . . . you can no longer construct these two . . . six . . . family dwelling units without first obtaining a variance.

In the matter herein, FRC's primary contention is that the enactment of Ordinance No. 1986-30 amounts to spot zoning on the part of the city of Fall River, and hence is invalid. The test of the validity of a zoning amendment is whether there is any substantial relation between the amendment and the furtherance of any of the general objects of G.L. c. 40A, the Zoning Act, which general objects are "promoting the health, safety, convenience, morals or welfare of [the] . . . inhabitants . . . " Beal v. Building Commissioner of Springfield, 353 Mass. 640 , 643 (1968); Schertzer v. City of Somerville, 345 Mass. 747 , 751 (1963); Lamarre v. Commissioner of Public Works of Fall River, 324 Mass. 542 , 544 (1949); Caires v. Building Commissioner of Hingham, 323 Mass. 589 , 593-594 (1949). Every presumption is to be afforded in favor of the validity of an ordinance and, if its reasonableness is fairly debatable, the Court will uphold the judgment of the local authorities. Muto v. City of Springfield, 349 Mass. 479 , 483 (1965); Woodland Estates, Inc. v. Building Inspector of Methuen, 4 Mass. App. Ct. 757 , 761 (1976). One challenging the ordinance's validity thus bears a heavy burden of demonstrating that there is no zoning purpose to the amendment. Beal at 642; Smith v. Board of Appeals of Salem, 313 Mass. 622 , 624 (1943).

Spot zoning, as FRC alleges has occurred in the present matter, arises where a zoning amendment effectively singles out a particular parcel of land for treatment different from that accorded to similar surrounding land which is indistinguishable from it in character, or where the zoning is amended for no other reason than to confer an economic benefit upon the owner of such parcel. Lamarre at 545; Board of Appeals of Hanover v. Housing Appeals Committee in the Department of Community Affairs, 363 Mass. 339 , 361-362 (1973); Canteen Corporation v. City of Pittsfield, 4 Mass. App. Ct. 289 , 293 (1976). While FRC refers herein to many cases in which zoning amendments were invalidated due to spot zoning, I find that FRC has failed to sustain its burden of proof with respect to spot zoning on the facts before this Court. Accordingly, I rule that, for the reasons set forth below, the City of Fall River's enactment of Ordinance No. 1986-30 was valid and must be affirmed.

In the instant matter, the area affected by the zoning reclassification from an "unrestricted" zoning district to a restricted "R-4", or two-family residence zone, encompasses some twenty-eight (28) lots ranging in use from residential to business. While Exhibit No. 10 depicts only two parcels of completely vacant land in the rezoned area, one of which parcel is owned by the Plaintiff, FRC, a view of the subject area reveals that many of the remaining lots, which contain structures, also contain considerable amounts of open space which may be suitable for new construction. Therefore, contrary to the Plaintiff's position that the rezoning affects only its land, I find that this rezoning impacts upon more than the two vacant parcels located in the "R-4" zone.

Additionally, I find the subject zoning amendment to have been enacted in accordance with the general purposes of G.L.c. 40A, the Zoning Act. It has been held that zoning districts may be established to accomplish the legislative purposes of stabilizing the use of property, protecting property owners and preventing invasions of businesses into residential areas. Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676 , 680 (1954). Insofar as the prior "unrestricted" zoning status of the subject area threatened the advancement of such purposes, I find the rezoning to be consistent with such zoning objectives. Moreover, as the reasons propounded by the petitioners for the enactment of Ordinance No. 1986-30 (See Findings No. 7 and 8) allude to a desire to lessen congestion caused by the unbridled expansion of the three or more family structures situated in the unrestricted zone, I find their objectives to be consistent with such legitimate zoning purposes as preventing overcrowding of land, lessening congestion in the streets and avoiding undue concentrations of population as well. See McNeil v. Town of Avon, 386 Mass. 339 , 341 (1982). Accordingly, as the rezoning enacted herein materially promotes at least one such objective, it bears a substantial relationship to public health, safety and welfare and must be sustained. Caires at 594.

In consideration of the foregoing, I rule in summary that, as the Plaintiff, Fall River Construction Co., Inc., has failed to sustain its burden of proving that the City of Fall River's enactment of Ordinance No. 1986-30 was invalid, such enactment must be and hereby is upheld.

The Plaintiff has submitted proposed findings of fact and rulings of law which I have considered. Certain of these requests have been incorporated herein. I have taken no action with respect to the remainder, as I have made independent findings and rulings as to those facts and rules of law which I deem most pertinent hereto.

Judgment accordingly.