MISC 157955

January 21, 1992

Berkshire, ss.



The plaintiffs Edward Biron, Sally McCarthy and Cecelia Williams challenge pursuant to the provisions of G.L. 240, §14A the rezoning of a parcel of land on Pontoosuk and Lenox Avenues in Pittsfield in the County of Berkshire from an R-6 residential district to an R-M district. For our purposes the principal difference between the two categories is found in the category of permitted residences; in the former the emphasis is on single family homes and in the latter on multiple family housing and apartment buildings. The named defendants in the complaint are Robert J. Pomeroy, Jr., as he is the building inspector of the City of Pittsfield and the City of Pittsfield. St. Charles Apartments Limited Partnership, the owner of the property, has intervened.

A trial was held at the Land Court on December 19, 1991 at which the matter was submitted to the Court upon a statement of agreed facts and fifteen exhibits relating to the zoning change. No testimony was heard at the trial, but the proceedings including the arguments of counsel were electronically recorded. Since Chapter 240, §14A calls for a declaration of rights a judgment will be entered that the amendment to the zoning ordinance adopted by the city council of the City of Pittsfield in 1986 in which the locus was rezoned was in accordance with the provisions of Chapter 40A and neither arbitrary or unreasonable. I have reached this decision on all the evidence on which I find and rule as follows:

1. On June 6, 1986 the Roman Catholic Archbishop of Boston owned a parcel of land situated at the corner of Pontoosuk Avenue and Lenox Avenue in the City of Pittsfield on which was located a brick building formerly used as a parochial school for the parish of St. Charles.

2. The site contained approximately 49,000 square feet, and the building thereon no longer in use as a school had started to deteriorate.

3. Accordingly John A. Barry, Jr., an attorney, submitted to the City of Pittsfield a petition to rezone the property from R-6 to R-M. A hearing was held by the Planning Board on June 30, 1986 at which Mr. Barry explained that the purpose of the zone change was to allow the adaptive reuse of the closed school for eighteen units of housing. At that time it was intended that the apartment units be market rate. The Planning Board unanimously approved the change.

4. The petition for rezoning had been submitted to the Planning Board by the city council by a letter from the city clerk dated July 1, 1986 (Exhibit No. 1). After the favorable report by the Planning Board the city council read and passed for the first time the ordinance amending the zoning code to rezone the locus from an R-6 District to an R-M District on August 12, 1986, and thereafter the ordinance was read and passed to be ordained unanimously on September 9, 1986 on which date it was also approved by the mayor (Exhibit No. 13). The original zoning district had been created pursuant to the Master Plan; language therein also supports the rezoning.

5. The premises rezoned by the city council were transferred from the St. Charles Educational Associates, Inc. in which entity the diocese held title to Stephen, Herbert and Mark Berezin and thereafter on December 28, 1989 to the present owners, St. Charles Apartments Limited Partnership.

6. The Planning Board, after the submission to it of a plan to be endorsed "Approval Under the Subdivision Control Law Not Required", considered the matter of the endorsement at a hearing on September 17, 1990 and with the consent of the owner extended the consideration to October 3, 1990 when the plan was so endorsed (cf. G.L. c. 41, §81P). Subsequently on February 19, 1991 a site plan of the premises was approved by the Planning Board. The building permit apparently has been issued and the intervenors are ready to move forward or are in fact doing so.

7. At some stage the plans for litigation of the former school building changed from conversion to eighteen market rate apartments to twenty-five low-to-moderate income apartments. The building subsequently was damaged by a fire, and strong suspicions exist that the former was the cause of the latter. A complaint has been made to the Massachusetts Commission Against Discrimination, and apparently the commission has taken preliminary steps in this matter.

8. On October 22, 1990 as a result of a petition filed by ten taxpayers, the Planning Board held a hearing on the rezoning of the property from R-M back to R-6. The Planning Board recommended to the city council that the petition be acted on favorably, and on or about November 13, 1990 after public hearing and comments the city council voted unanimously to rezone the property. The ostensible reason given was an effort to expedite the work in re­adapting the former school to use. No issue is before the Court in this proceeding as to the validity of this rezoning.

The public policy in the Commonwealth favors the encouragement of low and moderate income rental housing. Sections 21 and 22 of Chapter 40B of the Massachusetts General Laws set forth the procedure for applications to build low or moderate income housing by limited dividend or non-profit organizations as well as public agencies to which end it is possible to override local requirements in the interest of accomplishing these goals. In Board of Appeals of Hanover v. Housing Appeals Committee, 363 Mass. 339 (1973) the Supreme Judicial Court discussed at length the policy of favoring this type of housing and the relationship of Chaper 40B to the provisions set forth to the enabling act for zoning laws foung in Chapter 40A. The principal argument made by the opponents of the original zoning change, the plaintiffs in this litigation is that to rezone for multiple family housing the area in which the school is situated constitutes spot zoning. This argument overlooks the fact that in many Massachusetts communities, schools, whether public, private or parochial, have been converted to multiple family housing or to business condominiums and that because of the nature of the population which the school served these buildings customarily are situated within single family residence districts. It may be that in some communities this is done by special permit or variance, but it seems more straightforward to accomplish the result by a zoning change.

In Board of Appeals of Hanover, supra, the Supreme Judicial Court squarely addressed the question of spot zoning in a similar factual situation and at pages 360-363 and based on the decision in Lamarre v. Commissioner of Public Works of Fall River, 324 Mass. 542 (1949) held that it was spot zoning when there was "a singling out of one lot for different treatment from that accorded to surrounding land indistinguishable from it in character, all for the economic benefit of the owner of that lot". The Hanover court said that this was in accord with the views in other states. Chief Justice Tauro emphasized that "the general view held by most State courts [is] that spot zoning problems arise where a zoning change is designed solely for the economic benefit of the owner of the property receiving special treatment and is not in accordance with a well considered plan for the public welfare" (page 362). The central question then in Hanover was whether the difference in treatment served the public welfare or merely afforded an economic benefit to the owner of the land receiving special treatment. That court decided that the change served the public welfare and did not merely afford an economic benefit to the owner of the land receiving special treatment. Here as in Hanover, Lamarre and Henze v. Building Inspector of Lawrence, 359 Mass. 754 (1971) the zoning change served the public welfare by removing a source of trouble - a dilapidated building from the neighborhood and by making possible its conversion to housing and did not merely provide an economic benefit to the diocese or the purchaser.

These cases dispose of the plaintiffs' argument based on spot zoning. The present factual situation is entirely different from Schertzer v. Somerville, 345 Mass. 747 , 750-751 (1963), Shapiro v. Cambridge, 340 Mass. 652 , 659 (1960) and National Amusements, Inc. v. City of Boston, 29 Mass. App. Ct. 305 (1990) in all of which the city council was motivated to make the change by objections of neighbors to the use contemplated by the owners and without a rational basis or consent of the owner of the land.

It is well settled that the Court in questions that relate to the validity of a rezoning as well as the original zoning ordinance must give deference to local authorities. As was said in Caires v. Building Commissioner of Hingham, 323 Mass. 589 at pages 594-595 (1949):

Every presumption is to be made in favor of the by­law, and its enforcement will not be refused unless it is shown beyond reasonable doubt that it conflicts with the Constitution or the enabling statute (citations omitted). Where the reasonableness of a zoning by-law is fairly debatable, then the judgment of the local legislative body upon which rested the duty and responsibility for its enactment must be sustained.

In Crall v. Leominster, 362 Mass. 95 (1972) where Justice Quirico expressed some impatience with the bar for continually questioning the action of municipalities in enacting zoning provisions and quoted at page 101 from an earlier pronouncement by the court that the question is not whether the court approves of the enactment but whether it can be held an unreasonable exercise of power having no rational relation to the public safety, public health or public morals. The court also reiterated that every presumption is to be made in favor of the validity of the municipal by-law and ordinances and their enforcement will not be refused unless it is shown beyond reasonable doubt that they conflict with the applicable enabling act of the Constitution (pages 101-102).

Without a lengthy analysis of other authorities it is enough to say that it is clear that the question is debatable as to the change from a single family residence district to a multi-family district to permit the adaptive reuse of the school rather than condemning it to a continued deterioration. While to my mind there is no debate and it is clear that the city council took the appropriate course in rezoning the school property, these cases established the rule that if the question were fairly debatable the decision of the legislative body must stand. Accordingly a judgment will be entered declaring the 1986 rezoning of the site to be valid and enforceable in all respects.

Judgment accordingly.