MISC 135604

June 23, 1992

Bristol, ss.



The plaintiffs Leonard Simmons and Theresa J. Simmons, the owners of a parcel of land situated on McCombs Boulevard (Massachusetts State Route 140) in New Bedford in the County of Bristol (Exhibit No. 1) seek a determination pursuant to the provisions of G.L. c. 240, §14A of the validity of an ordinance enacted by the City Council of the City of New Bedford amending the zoningordinance by changing the classification of Lot 15 on Assessors' Plat 132 from Industrial C to Residence A. The complaint attacks the rezoning as spot zoning and seeks a declaration that it was invalid as a violation of G.L. c. 40A; the plaintiff further seeks damages from the City of New Bedford in Count II based on the allegation that the rezoning amounted to a taking. I do not reach the latter question since I find and rule that the zoning was arbitrary and unreasonable and cannot stand.

The trial was held at the Land Court on April 13, 1992 at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. The plaintiffs called as witnesses Mr. and Mrs. Simmons and William Tyler, a real estate agent and appraiser in New Bedford whose qualifications as an expert were accepted by the City. On all the evidence I find and rule as follows:

1. The entire area in which the plaintiffs' land is situated as well as the adjoining land of the proponents of the zoning change originally was classified as Industrial C.

2. In 1986 the adjoining area abutting land of the plaintiffs to the north was rezoned from Industrial C to Residence A so that the other land could be developed residentially by the construction of the homes in which the proponents now reside. Prior to the initiation of the rezoning process the then owner consulted with Leonard Simmons to secure his cooperation which he obtained.

3. The area to the north of the small section zoned as Residence A remains Industrial B which is a business area. The entire area to the west of locus is Industrial C including the railroad line. To the southeast of the locus the rezoning of which the plaintiffs complain is Industrial A and southeasterly and on the opposite side of the state highway there is both Industrial B and business zoning.

4. In 1988 the representative of the neighborhood association to the north of the plaintiffs' land sought to have Lot 15 on Assessors' Plat 132 rezoned from Industrial C to Residence A. This single lot was owned by the plaintiffs and was bounded by Route 140 and industrial zoned land other than for the residential area to the north, formerly zoned industrial, and rezoned without objection from the plaintiffs.

5. The petition to the City Council was referred to the Planning Board for a report and the plan attached to the notice of the public hearing (Exhibit No. 3) shows the triangular area in question which is owned by the plaintiffs. The adjoining Lots 7, 12 and 13 which also abut Route 140 and the railroad line, and were zoned Industrial C are shown on the plan attached to the notice of the hearing.

6. At the hearing on December 14, 1988 one Charles Rainville of 1315 Phillips Road in New Bedford, the location of which in relationship to the present locus is unclear spoke in favor of the rezoning. At the hearing it appeared that the then zoning had been frozen for three years in any event by the filing of a plan that is not an issue in this case.

7. At the Planning Board hearing a memorandum was read from the city planner which suggested that rezoning only Parcel 15 would be vulnerable to a spot zoning challenge. The report from the Planning Board to the City Council further stated that it was the planner's view that to avoid such a situation and to make a more logical land use configuration Lots 7, 12 and 13 on Assessors' Map, Plat 132, also be rezoned to Residence A (Exhibit No. 5).

8. The formal report from the Planning Board to the city council recommended that the 3.91 acre lot owned by the plaintiffs and shown as Lot 15 on Plat 132 be rezoned as a Residential A District on the ground that the industrial area may be accessed through residential streets and that this is a nuisance, but that the city planner had suggested that the petition be expanded to include the three abutting lots "to avoid a charge of spot zoning (see attached memorandum)". It was reported to the Council that the opponents contended that rezoning was an abridgement of their property rights.

9. The city Council held a hearing on January 19, 1989 (Exhibit No. 7) relative to the proposed rezoning, and at that time it was voted to initiate a zoning petition to rezone Lots 7, 12 and 13 at Plat 132 from Industrial C District to a Residence A District. The original petition covering Lot 15 was returned to the Planning Board (Exhibits Nos. 8, 9 and 10).

10. The Planning Board had a meeting on March 8, 1989 and voted to send the petition to rezone Lot 15 back to the City Council to be voted on at the same hearing as the petition to rezone Lots 7, 12 and 13 "in order to rezone all of the Triangular Area at the end of McCombs Boulevard, from Industrial C to Residence A, and also, to avoid the appearance of spot zoning" (Exhibit No. 13).

11. On April 5, 1989 (Exhibit No. 12) the City Council held a hearing on the two rezoning petitions at which the president of the Welby Road/McCombs Boulevard neighborhood association spoke in favor of the rezoning, and counsel for the present plaintiffs opposed it.

12. Despite the opposition of the owners Lot 15 was rezoned by Ordinance No. 200 of 1989 which was adopted by the City Council on May 25, 1989 and approved by the mayor on the following May 31. The ordinance rezoned Lot 15 from Industrial C District to a Residence A District (Exhibit No. 15). Although I do not have before me the legislative history of the ordinance affecting the other three lots which lie between Lot 15 and the railroad line to the west and southwest of locus also abutting on Route 140, the rezoning of these three lots was apparently accomplished at the same meeting.

13. The three lots which were rezoned admittedly to avoid the appearance of spot zoning consist of wetlands and cannot be developed in any event.

14. The whole general area in which locus is situated is devoted primarily to industrial and business use. Other than for the particular neighborhood which initiated the present zoning change, any residences in the area generally appear to be multi­family.

It is clear from the city's own track record that the rezoning of Lot 15 was invalid as spot zoning. The addition of the three adjoining lots to attempt to disguise the arbitrary nature of the rezoning was a sham, for the parcels in question were wetlands and whatever their designation could not be built upon. Moreover the two amendments to the zoning ordinance were separately drafted and adopted. The true motive of the rezoning was to appease the adjoining residential neighborhood which in and of itself evolved from an industrial zoned parcel. It is true, of course, that in weighing the validity both of the adoption of a zoning ordinance and amendments thereto there is a presumption in favor of the zoning amendment and if its validity is fairly debatable, then its validity must be sustained. Caires v. Building Commissioner of Hingham, 323 Mass. 58 (1949); Turnpike Realty Co. v. Dedham, 362 Mass. 221 , 238 (1972); Cert. denied in 409 U.S. 1108 (1973). However, once this has been said the zoning ordinance or by-law still must be held invalid, as the Court stated in National Amusements, Inc. v. Boston, 29 Mass. App. Ct. 305 , 309-310 (1990):

if it is unreasonable or arbitrary, or substantially unrelated to the public health, safety, convenience, morals or welfare. (cftations omitted) Despite the heavy momentum in favor of affirmation of local zoning action, the applicable principles are of judicial deference and restraint, not abdication.

The gravamen of the plaintiffs' dispute with the City is that the zoning amendment was "spot zoning". It has often been said that spot zoning is "a singling out of one lot for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of the owner." Lamarre v. Commissioner of Public Works of Fall River, 324 Mass. 542 , 545-546 (1949), quoting from Marblehead v. Rosenthal, 316 Mass. 124 , 126 (1944) and cited with approval in Mastriani v. Building Inspector of Monson, 19 Mass. App. Ct. 989 , 990-991 (1985). It is true that the singling out of this particular lot is not for the financial benefit of the owner, quite the contrary. The rezoning of the additional three lots does not, as in Rosko v. Marlborough, 355 Mass. 51 , 53-54 (1968) aid the proponents of the zoning change, however, since it is clear that the addition of the three lots is but a smokescreen. It still can be denominated as spot zoning when a small area is rezoned for reasons not associated with the use being made of it, the nature of the parcel or the zoning of a large adjacent area.

The present controversy is governed by Schertzer v. Somerville, 345 Mass. 747 , 751 (1963) where the court pointed out, "[a] municipality may from time to time reexamine the location of a boundary between districts and shift its location as sound zoning principles dictate"; but here as in Schertzer the particular parcel was set off from similarly zoned land "at the instigation of citizens who objected to a particular proposed business use. This constituted arbitrary and unreasonable action. If not spot zoning in the sense of picking out an undifferentiated area within a district (citation omitted), it was analogous to it and equally violative of the principle of uniformity". See also Shapiro v. Cambridge, 340 Mass. 652 (1960).

On all the evidence therefore I find and rule that the adoption of Ordinance 200 of 1989 which rezoned Lot 15 from Industrial C to Residence A is invalid, is hereby annulled and is of no further force and effect. The plaintiffs do not complain about the rezoning of the adjacent three lots by an ordinance which was subsequently adopted and added to the action taken on Lot 15 in an attempt to preserve it. Accordingly I make no determination as to its validity.

Judgment accordingly.