ROBERT J. ROGERS and MYRTLE A. ROGERS vs. TOWN OF MONSON.

By complaint filed September 14, 1990, pursuant to G.L. c. 240, §14A, Plaintiffs seek a declaration that an amendment to the By-Law of the Town of Monson ("the By-Law") amounts to an unconstitutional taking of Plaintiffs' property ("Locus"). Plaintiffs further seek a declaration that Plaintiffs, their grantees, successors, heirs or assigns may use Locus for residential purposes and may construct a single family dwelling thereon. The Attorney General was notified of this proceeding but did not choose to be heard.

This case was tried on July 15, 1991, at which time the proceedings were transcribed by a court-appointed reporter. Three witnesses testified and seven exhibits were introduced into evidence. All of the exhibits are incorporated herein by reference for the purpose of any appeal.

After considering the evidence, testimony and pertinent documents, I make the following findings:

1. The lots which comprise Locus are shown as lot 8 ("Lot 8"), containing approximately .62 acres and lot 9 ("Lot 9"), containing approximately 1.08 acres on a plan entitled "Plan of Lots in Monson, Mass. surveyed for Herbert C. Miller et. ux." dated May 27, 1963, and recorded at Book 96, Page 14 in the Hampden County Registry of Deeds [Note 1] ("the Plan") (Exhibit No. 1). Those lots have frontage on Pinnacle Circle which is not a public way and which is a paper street.

2. By deed dated May 23, 1967, and recorded at Book 3260, Page 269, Plaintiffs acquired title to Lots 7 and 8 (Exhibit No. 2). By deed dated June 28, 1972 and recorded at Book 3716, Page 43, Plaintiffs acquired title to Lots 9 and 11 (Exhibit No. 3).

3. Locus is sloping wooded parcel located in a Rural Residence district. Permitted uses in such district include agriculture, horticulture, floriculture, viticulture; commercial, livestock, dairy, poultry farming; wood harvesting, tree farming, nursery; conservation land; and residential uses.

4. On May 27, 1986, the Town of Monson voted to amend Section 1.19 (now Section 1.2) ("the Amendment") of the By-Law, to define "street" as a public way, further providing that, "(p)rivately owned ways, abandoned ways, and proposed ways as shown on the 'official street map' at the time of its adoption are not 'streets' in conformance with this definition." The Amendment was approved by the Attorney General in August of 1986. Prior to that time, the By-Law defined Street as "a way giving access to private property, and to which the public has access . . . " (See Exhibit No. 5). Section 1.2 also requires that lot frontage for each lot be on a public way.

5. Plaintiffs wish to combine Lots 8 and 9 and construct a single family dwelling thereon and in this regard requested a building permit which the Building Inspector for the Town refused to issue, based upon his determination that Pinnacle Circle is not a public way.

6. The market value of Lots 8 and 9 if "buildable" will be $12,000 and if not "buildable" will be $5,000 (See Exhibit No. 7).

Plaintiffs argue that the Amendment as applied to their land constitutes a taking of their property without due process of law in violation of both the Massachusetts and United States Constitutions. In a zoning case, Plaintiff bears the burden of showing that the By-Laws are unconstitutional Chaume v. Zoning Board of Appeals of Fitchburg, 27 Mass. App. Ct. 1135 (1989) and all rational presumptions are made in favor of the validity of every legislative enactment. Turnpike Realty Co. v. Dedham, 362 Mass. 221 , 238 (1974). Further, regulation of use which is incidental to the legitimate exercise of governmental purposes for the public good is not a taking. Chicago, Burlington & Quincy Railway Company v. People of the state of Illinois ex rel. Drainage Commissioners, 200 U.S. 561, 594 (1906).

It is well established that for a governmental action to be adjudged a taking it must strip private property "of all practical value to them or to anyone acquiring it, leaving them only with the burden of paying taxes on it." Loveguist v. Conservation Commission of Dennis, 379 Mass. 7 , 20 (1979); MacGibbon v. Board of Appeals of Duxbury, (MacGibbon II), 356 Mass. at 641 (1970). Even a substantial diminution in the value of land or hardship from deprivation of some beneficial use of the land will not invalidate a by-law. Turnpike Realty at 237; Lovequist at 19.

In the present case, Plaintiffs have not been deprived of all beneficial and economically viable use of their land. There are, as Plaintiff acknowledges, a number of uses to which to Locus may be put. (See Monaghan v. North Reading, 7 Mass. App. Ct. 922 (1979)).

Notwithstanding the foregoing, I do find those portions of the By-Law which require all frontage to be on a "public way", and which define "street" as a public way (Section 1.19(c) and 1.2) to be unreasonable as applied in this instance.

Although not completely clear from the evidence, I assume from the pleadings and testimony that the Defendant, Town has a planning board and has accepted the provisions of G.L. c. 41, §81K to 81GG ("the Subdivision Control Law") and accordingly find that the sections of the By-Law in question impermissibly conflict with the provisions of the statute.

The Defendant correctly argues that reasonable zoning regulations relating to the enhancement of public health, safety and convenience are proper, however, such issues can be adequately addressed without restricting building to public ways. The By-Law would appear, in fact, to give the final authority to approve a subdivision to the town meeting by its vote or the acceptance of public ways rather than to the planning board as required by statute. Section 1.2 appears in fact to be a paraphrase of a portion of the "subdivision" definition in G.L. c. 41, §81L; with the notable exception that while the statute recognizes "a way which the town clerk certifies is maintained and used as a public way, a way shown on an approved and endorsed plan under the Subdivision Control Law, and a way in existence when that law became effective in the town and which in the opinion of the planning board is sufficient for the purposes proposed," the by-law requires all such ways to be public.

I do not here find that Plaintiff may build on a lot with no concern whatsoever for adequate access, or on an unimproved paper street. The Town may impose and presumably in their subdivision regulations does have requirements which will insure the adequacy of access and standards for roads. Such, requirements of course, must be complied with. As stated, however, I do find the requirement that any lot to be buildable must be on an accepted public way to with apparently no regard for the adequacy or use of a private way be unreasonable and accordingly void.

Judgment accordingly.