MISC 126888

October 3, 1990

Norfolk, ss.



The plaintiffs, the Brookline Environmental Protection Association and thirteen individual owners of properties within the Town of Brookline bring this action pursuant to the provisions of G.L. c. 231A, §1, c. 185, §1(j 1\2) and c. 240, §14A for a determination that the rezoning of a certain parcel of land on Hammond Street in said Brookline was invalid. The owners have shown no harm to them as residents of the neighborhood which is different in kind from others similarly situated, but the Town has not raised the question of standing and has left it to the Court to determine the validity of the action of the Town Meeting.

A trial was held at the Land Court on April 4, 1990 at which the plaintiffs, Francis G. Shaw, George B. Smithy and Stanley H. Rudman, testified for the plaintiffs as did their expert, Jerold Kayden. The Town's witnesses were Peter M. Ditto, a civil engineer for the Town of Brookline, Thomas DeMaio, the Brookline highway and sanitation director, and William Griffiths, the commissioner of public works. Thirty-eight exhibits, some of them having multiple parts, were introduced into evidence together with two chalks consisting of blow-ups of Town.maps. A view was taken by the Court in the presence of counsel.

The parties entered into the following statement of agreed facts which accordingly I now find:

The Parties

1. The plaintiff, the Brookline Environmental Protection Association ("BEPA")l, is a voluntary association of Brookline residents concerned with the preservation and enhancement of the environment of the Town of Brookline. The principal office of BEPA is located at 30 Aston Road, Brookline, Norfolk County, Massachusetts. Stanley H. Rudman is the president of BEPA and resides at 30 Aston Road.

2. The plaintiffs, Leah C. Bojar and Samuel Bojar, own, individually, jointly or as tenants by the entirety, and reside at 10 Aston Road, Brookline, Norfolk County, Massachusetts.

3. The plaintiffs, Gretchen R. Colby and Robert L. Colby, own, individually, jointly or as tenants by the entirety, and reside at 20 Glenoe Road, Brookline, Norfolk County, Massachusetts.

4. The plaintiffs, Aya Leder and Philip Leder, own, individually, jointly or as tenants by the entirety, and reside at 25 Aston Road, Brookline, Norfolk County, Massachusetts.

5. The plaintiff, Dorothy B. Rudman, owns and resides at 30 Aston Road, Brookline, Norfolk County, Massachusetts.

6. The plaintiffs, Francis G. Shaw and Ruth W. Shaw, own, individually, jointly or as tenants by the entirety, and reside at 272 Woodland Road, Brookline, Norfolk County, Massachusetts.

7. The plaintiffs, George B. Smithy and Ruth B. Smithy, own, individually, jointly or as tenants by the entirety, and.reside at 5 Aston Road, Brookline, Norfolk County, Massachusetts.

8. The plaintiffs, Carol Chandler and Robert H. Yelton, own, individually, jointly or as tenants by the entirety, and reside at 72 Pine Road, Brookline, Norfolk County, Massachusetts.

9. The defendant, Town of Brookline (the "Town" or "Brookline") is a municipal corporation and political subdivision of the Commonwealth of Massachusetts with its principal office at Town Hall, 333 Washington Street, Brookline, Norfolk County, Massachusetts.

The Premises

10. On March 24, 1899, Brookline purchased certain property including what is now 870 Hammond Street, a 4.7 acre parcel of land lying east of Hammond Street and opposite Aston Road ("the site" or "the premises").

11. The site was a stone quarry for an undetermined period of time until 1908. At the site, the Town operated a burning dump from 1908 through 1918 and an incinerator from approximately September, 1918 through January, 1952.

12. Currently, the site is immediately adjacent on three sides (north, east and south) to municipally-owned park land and a golf course, and on the fourth side (west) by Hammond Street, a public way having a 53 foot paved way within a 75 foot righ of way.

The Facility

13. Brookline presently plans to build a Highway Garage at the premises which will house the Highway Division of Brookline's Department of Public Works ("DPW").

14. On March 21, 1989, the Board of Selectmen voted to reduce the area of its Highway Garage proposal from 99,095 square feet to 55,842 square feet, a 45% reduction in the square footage of its original proposal.

15. The Board of Selectmen can again vote to change the square footage as well as the height, density and massing of its Highway Garage proposal. In all events, the Brookline Town Meeting must approve the Board of Selectmen's Highway Garage proposal. If bonded, the proposed Highway Garage will require a two-thirds vote of the Town Meeting.

Zoning History of the Premises

16. In 1922, at the time Brookline adopted its first zoning by-law, the premises were placed within zoning district 3D, a General Residence district permitting a maximum building height of 45 feet or 2 1\2 stories.

17. In 1949, the site was within a 7E zoning district, a Single Residence district requiring a minimum lot area of 15,000 square feet. The north, northeast side of the site bordered another Single Residence district, 7H, which required minimum lot areas of 40,000 square feet.

18. In 1962, the premises were within an S-15 zoning district or Single Family. residential district with the same minimum lot area requirements. The north, northeast side of the site bordered an S-40 Single Family residential zoning district.

19. The site remained within an S-15 residential zoning district under Zoning Map 10-N, adopted by a Brookline Town Meeting of June 3, 1986.

20. Effective May 27, 1987, the Brookline Town Meeting, following the recommendations of the Advisory Committee, the Board of Selectmen and the Planning Board, voted 143 to 43 to change the zoning of the premises from an S-15 residential district to an I-1.0 Industrial Services district.

21. Over the past 35 years, the number and the density of homes in the S-15 zoning district which contains the premises has increased to the north and west of the site.

22. Under the current proposal, the Highway Garage will house the Highway Division of the DPW including its director and approximately 70 employees. The Highway Garage will house the Highway Division's roadway, cleaning, equipment maintenance, line painting and sign crews. The Highway Garage will be used 16 hours per day, 5 days per week. Four to nine employees will work night shifts from 11:00 p.m. to 7:00 a.m. Sixty-six employees will work the day shift from 7:00 a.m. to 3:00 p.m. Fifty-eight DPW-owned vehicles will be housed, maintained and repaired at the Garage. Approximately 35 police vehicles and 58 vehicles and pieces of equipment from other departments of the Town will be maintained and repaired at the site. The Highway Division's employees will generate 112 employee trips to and from the site. The Garage will also generate approximately 56 work trips on an average day. This means that there will be a total of 216 vehicle trips into or out of the site which number includes trips to and from the Garage for fuel for DPW, police and other vehicles. Presently, the Town estimates that today there is a total of 14 vehicle trips to and from the site. The above numbers reflect work done in the normal course of the DPW's work.

In addition to the facts set forth above, on all the evidence I further find and rule as follows:

23. The Article 17 of the Annual Town Meeting held on May 26, May 27, June 1, June 9 and June 10, all in 1987, read as follows:


To see if the Town will amend the Zoning By-law and Map as follows:

A. In Section 1.0 Purpose and Interpretation, by adding a new paragraph (c) as follows:

(c) Municipal uses shall be exempt from the provisions and requirements in this Zoning By­law when a municipal project, and the uses associated with that project, has been approved for funding or otherwise by a two-thirds vote of a Town Meeting.

B. In Section 4.30 Table of Use Regulation, by substituting the following for Use #12:

Uses owned or operated by an agency of the Town or a recreational facility owned or operated by another government agency.

C. To amend the Zoning Map by including within an I-1.0 district the following lot and to the centerline of the street now zoned S-15:

Block 441, Lot 43

or act on anything relative thereto.

24. The Town Meeting members rejected subdivisions A and B and adopted C which are rezoned from S-15, single residence district to I-1.0, an industrial district, the locus containing 4.7 acres and situated on Hammond Street. The center line of the public way is the westerly boundary of the new zoning district.

25. The uses originally made of the site by the Town appear above; in addition the Town, in more recent years since the incinerator was moved to a new location, has used the locus for miscellaneous activities of its Department of Public Works. There has been stored thereon piles of sand and salt used in the winter operations of the Department. While the Water and Sanitation Departments now have their own location, there still remain on the premises large replacement pipes and casts for manhole and drainage covers which are stored there until required in their usual operations. In the old incinerator building there is an office used by the Department's superintendent which he generally uses early in the morning and late in the workday. There also are kept on the premises various motor vehicles, including fork lifts, trucks, snow plows, old granite curbing, discarded and replacement guard rails, fire hydrants, road salt, recycled asphalt, loam and pea stone for landscape and sidewalk repairs and other small construction equipment. In general, whatever is convenient for the Town and its Departments to leave at the locus has been left there. Activities on the site include sand blasting snow plows, employee training on snow removal equipment and use as a temporary disposal site from street cleaning operation. In addition to the use made by the Town a portion of the locus has been rented to the Commonwealth for use by the Massachusetts Department of Public Works in its snow removal operations. Similar types of equipment and snow oriented materials are used by the Commonwealth and are kept at the top of the two-tiered site where there also is a rough office for supervisory personnel and other workmen. Over the years outside contractors doing work for the Town have been allowed to leave their equipment on the locus as have been utility companies such as Boston Edison, Boston Gas and Cablevision. The Brookline Police Department also used a portion of the old incinerator building for a firing range.

26. The locus has been intensely used during periods encompassed within times of unusual weather phenomenon. During the blizzard of 1978 the locus was alive with trucks of every description and other snow fighting equipment. Similarly during the hurricane of 1985 extra equipment was kept at this location, and it was authorized to be used as an area for open burning after the debris left by the high winds had been collected.

27. The present highway garage is a former stable, primarily of wooden construction with a concrete garage in the rear. There is a constant threat of fire from its use and since 1945, the location of a new garage has been an ongoing project of the Town. The present facility is obsolete.

28. There remains a question as to a small area on the locus which may contain hazardous waste. Recommendations have been made as to the best method of dealing with this and are currently being studied.

29. In addition to the garage use which the Town contemplates, the district to which locus has been rezoned permits a wide miscellaneous assortment of activities which encompass permitted uses very different from those in a residential neighborhood but not unlike many permitted along Route 9 which lies within a short distance of the site.

30. The view which the Court took revealed the homes in the neighborhood to be very attractive, well-maintained and nicely landscaped. None of such properties, however, abutted the locus, and the closest house was separated from the entrance to the facility by Hammond Street which is a heavily travelled public way of over 50 feet of pavement with a somewhat larger layout. Aston Road on which several of the plaintiffs live runs westerly to Laurel Road from Hammond Street. Woodland Road commences on the westerly side of Hammond Street, some distance northerly of the site, and runs to Heath Street. Pine Road also is northerly of locus and runs easterly from Hammond Street to the easterly half of Woodland Road.

31. The front of the site has several large trees and is screened from Hammond Street by thick vegetation, which the Town now plans to leave, parking originally planned for the front of the property having been relocated. Away from the street the site rises to a considerable height with a road presently encircling the hill into which the two-story incinerator was built. There is a large amount of ledge and natural division between the activities used by the Town for the miscellaneous assortment of purposes outlined here and the recreational facilities which surround the site. While the locus has been residentially zoned since zoning was adopted in Brookline, it has never been used for such purposes, and it is doubtful that it could be adapted to such use.

The plaintiffs do not dispute that the Town badly needs a new highway garage. Rather their objections are focused on the location of the garage in an area generally within the plaintiffs' neighborhood although not immediately adjacent to any of their homes. They have a further objection which stems from their concern that the Town ultimately may elect to locate the garage in another area, in view of the downscaling of its size and elect to put the locus on the market. Such a course would, of course, require approval of the Town Meeting, but the plaintiffs emphasize the wide range of activities permitted in the new zone and fear that the Town might ultimately find it in its pecuniary interest to leave the rezoning as it presently stands and sell the locus. They point out that the more far reaching provisions of the article authorizing municipal uses in any district were not adopted. Cf. Sinn v. Board of Selectmen of Acton, 357 Mass. 606 -610 (1970).

The creation of zoning districts is peculiarly within the province of a municipality. As the appellate courts have repeatedly said the scope of judicial review is narrow and the role of the court is solely to determine whether the zoning enactment is "an unreasonable exercise of power having no rational relation to the public safety, public health or public morals." Crall v. Leominster, 362 Mass. 95 , 101 (1972) quoting Brett v. Building Commissioner of Brookline, 250 Mass. 73 , 79 (1924). As Justice Quirico continued in Crall, "this clear limitation of the scope of judicial review has since been consistently recognized and unwaveringly applied in every case involving this question. We have said repeatedly that if the reasonableness of a zoning by-law or ordinance is fairly debatable, the judgment of the local legislative body responsible for the enactment must be sustained. "Another rule which we have followed with equal consistency in the judicial review of municipal by-laws and ordinances is that every presumption is to be made in favor of their validity, and that their enforcement will not be refused unless it is shown beyond a reasonable doubt that they conflict with the applicable enabling act or the Constitution." Id. at 101-102. See also National Amusements. Inc. v. Boston, 29 Mass. App. Ct. 305 (1990).

The burden of proof is on the party who attacks the by-law, and in the present action the plaintiffs have not sustained their burden. The existing use of the locus and its use since 1898 has been such that it distinguishes the premises from the surrounding area and permits the zoning thereof in a different manner from the abutting town properties. Woodland Estates, Inc. v. Building Commissioner of Methuen, 4 Mass. App. Ct. 757 (1976). In addition, the physical characteristics of the locus lend themselves to the municipal use contemplated by the rezoning and were entirely inappropriate for the residential use for which it has been zoned for many years.

The plaintiffs also contend that the rezoning of the locus constitutes spot zoning. It is well settled that it is not the size of the zone which is determinative on the question of spot zoning. In a decision entitled Brookside Homeowners' Association, Inc. v. Town of North Andover v. Scott Follansbee, Trustee, Land Court Miscellaneous Case No. 106604 I had occasion to compare the sizes of various zoning districts which had been attacked on grounds that the rezoning constituted spot zoning where the creation of the new district had been upheld. These ranged in size from 41,230 square feet in Henze v. Building Inspector of Lawrence, 359 Mass. 754 (1971), 92,188 square feet in Vagtes v. Superintendent and Inspector of Buildings of Cambridge, 355 Mass. 711 (1969), 19,000 square feet in Peters v. City of Westfield, 353 Mass. 635 (1968), 26,830 square feet in Kennedy v. Building Inspector of Randolph, 351 Mass. 550 (1967), 80,230 square feet in Sullivan v. Board of Selectmen of Canton, 346 Mass. 784 (1964), 65,920 square feet in Martin v. Town of Rockland, 1 Mass. App. Ct. 167 (1973) and about 5 acres in both Lanner v. Board of Appeals of Tewksbury, 348 Mass. 220 (1964) and Raymond v. Building Inspector of Brimfield, 3 Mass. App. Ct. 38 (1975). The locus is approximately the same size as the "spot" upheld in the latter two cases.

In any event, it is not the size of the spot or even whether it has been singled out for less restrictive treatment than that of the surrounding land of similar character, but whether this has been done for the economic benefit of the owner of the lot and not to serve the public welfare. This governing principal was established by the Supreme Judicial Court in the case of Lamarre v. Commissioner of Public Works of Fall River, 324 Mass. 542 , 546 (1949) and was discussed at length by then Chief Justice Tauro in Board of Appeals of Hanover v. Housing Appeals Committee, 363 Mass. 339 , 361-363 (1973).

It is clear that the rezoning here was proposed and adopted by the Town Meeting not for the economic benefit of any private citizen but for the future welfare of the Town of Brookline as determined by its public officials. I can see no reason why this determination should be set aside by this Court and the judgment of the Court substituted for that of the members of the Town Meeting. It is true, of course, that there is a lovely residential area located across Hammond Street from the locus, and it is also true that there is within very close proximity to the sites an extremely successful mercantile operation bordering Route 9 and situated both in Brookline and the adjoining City of Newton.

On all the evidence therefore I find and rule that the locus has been used for a variety of municipal purposes since 1898, many of them far more noxious than that presently proposed, that the site rezoned by the Town Meeting is different in characteristics and present use from the adjoining properties, that the rezoning was not consummated to benefit the owner of the lot economically but was to serve the public welfare, and that this is a decision to be made by the Town Meeting, not by the courts.

Judgment accordingly.