WILLIAM B. ELMER & others vs. BOARD OF ZONING ADJUSTMENT OF BOSTON.

WHITTEMORE, J. The plaintiffs, being aggrieved by a decision of the board of zoning adjustment of the city of Boston, appealed to the Superior Court under St. 1924, c. 488, Section 20, as appearing in St. 1941, c. 373, Section 19.

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This is the appeal of the board from the decree of the judge, on his determination of the facts (McHugh v. Board of Zoning Adjustment of Boston, 336 Mass. 682, 687), that the decision of the board be annulled.

The decision of the board filed September 9, 1959, pursuant to vote of August 5, 1959, in terms changed two areas in the Back Bay district of Boston from a Residential, 80 foot height, zone to a Residential, 155 foot height, zone: (a) An area on the water side of Beacon Street between Embankment Road and Dartmouth Street about 1,700 feet long and about 200 feet wide, and (b) an area comprising the two sides of Commonwealth Avenue between Arlington Street and a line 100 feet west of Dartmouth Street about 2,000 feet long and 480 feet wide.

1. The vote of the board was not invalid because taken at an executive session following deliberations at executive sessions, of which no notice had been given in compliance with G. L. c. 39, Section 23A, inserted by St. 1958, c. 626, Section 4. [Note 1]

Statute 1960, c. 437 (entitled "An Act relative to the notice of certain meetings required by law to be open to the public and relative to the remedy in case of non-compliance with the law requiring that such meetings be open to the public"), by Section 5 inserted in c. 39 a new section 23C. The amending act by Section 7 provided that the new Section 23C should take effect as of January 5, 1959. We hold that it did so take effect and the legality of the meeting of August 5, 1959, and earlier meetings, is to be determined thereunder. See Donnelly v. Dover-Sherborn Regional Sch. Dist. 341 Mass. 497, 500-501.

Section 23C provides, "Upon proof of failure by any officer to carry out any of his responsibilities for public notice of meetings, for holding them open to the public, or

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for maintaining public records thereof, as such responsibilities are prescribed by this chapter and by chapters thirty A, thirty-four, and sixty-six, any justice of the supreme judicial or the superior court . . . shall issue an appropriate order requiring such officer to carry out as to meetings thereafter held all such responsibilities proved not to have been carried out as to any meeting or meetings theretofore held; but action otherwise duly taken at any meeting shall not be invalidated by the failure of any officer to carry out the said responsibilities for public notice of meetings. . . . The remedy created hereby is not exclusive, but shall be in addition to every other available remedy."

Section 23A was also amended by St. 1960, c. 437, Section 3, to take effect on its approval on June 2, 1960. The provision of Section 23A in effect through September 9, 1959 (St. 1958, c. 626, Section 4), read, "Except in an emergency, no meeting of any . . . city . . . board . . . shall be held unless a notice of such meeting has been filed . . .." Amended Section 23A, by contrast, provides, "Except in an emergency, a notice of each board meeting shall be filed . . .." Section 23C is far from precisely drawn to validate a meeting held in violation of the mandate that "no meeting . . . shall be held." We think, however, the intent so to do is plain. Statute 1958, c. 626, which first enacted the requirement for open meetings was approved October 7, 1958, and under art. 48 of the Amendments to the Constitution of Massachusetts, The Referendum, I, took effect ninety days thereafter on January 5, 1959, which was the effective date of Section 23C. The implication is strong that all questions of the invalidity of meetings because of absence of notice were being put at rest.

The statute requires that "action [be] otherwise duly taken" (emphasis supplied) and it expressly exempts from invalidation only failure in respect of "public notice of meetings." The plaintiffs contend this means that in any event, for validity, the meeting was required to be open to the public. We think this imprecise statute does not intend

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such result. It would be unlikely that any of the public would be in attendance at a meeting of which no notice was given. it would be arbitrary to let the validity of a meeting, held without public notice and unattended by the public, depend upon whether the meeting was declared "open."

Statute 1960, c. 437, establishes that the public policy that specified meetings be open is to be enforced by injunction against officers who disregard the policy, or by other "available remedy." Invalidation of action taken, although it would tend strongly to enforce the policy, would not be primarily a remedial measure. There are enough prospective difficulties in the implementation of such policy, particularly as applied to boards and agencies which, after due public hearing, with opportunity for all concerned to present their arguments and counterarguments, must weigh and determine important legislative, executive, and quasi judicial matters (see Fandel v. Board of Zoning Adjustment of Boston, 280 Mass. 195, 197-198), without putting otherwise valid action at the risk of subsequent determination that the particular deliberations were required to be held under public scrutiny. The Legislature has not gone so far.

2. The change ordered by the board was of a kind which the statute permits.

Statute 1924, c. 488, was substantially amended by St. 1941, c. 373, approved June 12, 1941. [Note 2] It is necessary, however, to notice its original substance. As enacted, the statute, in Section 2, prescribed by name six "Use Districts" and, in Section 10, five "Bulk Districts." In each of Section 2 and Section 10 the respective districts were further specified "as appearing on the zoning map . . . filed . . . in the office of the state secretary." Sections 3 to 9 of the statute limit the uses of land and buildings in the respective use districts and Sections 11 to 16 limit the height, set backs, and bulk of buildings in the respective bulk districts.

Section 20 of St. 1924, c. 488, as enacted provided that

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"the board may, subject to the following conditions, change the boundaries of districts by changing the zoning map, on file at the state secretary's office . . .."

Each sheet of the zoning map has printed on it a "Key to Districts" as follows:

KEY TO DISTRICTS

The words "change the boundaries of districts by changing the zoning map" could be construed to mean only: change the position of the boundaries between the districts shown on the zoning map. The grant of power to create new combinations of use and bulk districts would permit as great an effect on particular districts as could result from the creation of new categories of bulk or use, or other general amendment of the law. This tends to suggest the delegation of only the limited power to move district boundary lines, and not of some aspects of broad amending power. In Bradley v. Board of Zoning Adjustment of Boston, 255 Mass. 160, 173, this court, as a reason for the holding that a change in a boundary must be for one or more of the seven grounds specified in the act and must be so stated, said, "In earlier sections . . . the Legislature itself established the boundaries of districts with precision . . .. It would not be likely that a grant of power would be made to change that which the Legislature had itself been at such pains to establish, except upon definite terms and by strict compliance with named conditions." Compare, however, ibid., pp. 167, 170, quoted below.

The plaintiffs do not urge so limited a construction; their contention is that the Legislature by the reference to the

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map with its "Key to Districts" established the only combinations of use and bulk districts which the board may apply in making changes, and that it has not the power to create a "Residential 155 foot district." The plaintiffs assert an implied statutory intent that all residential areas have some open space around buildings and the further intent that the intensity of use which is possible in 155 foot bulk districts shall not be permitted in residential areas. For reasons stated in the following paragraphs we are unable to agree.

The construction of St. 1924, c. 488, is affected by what the board and the Legislature have done since 1924.

In some forty instances, seventeen of which were prior to June, 1941, the board has established a use-bulk district corresponding with one of the categories shown in the key, but not adjacent to a use-bulk district of the same category. The change which was litigated in Co-Ray Realty Co. Inc. v. Board of Zoning Adjustment of Boston, 328 Mass. 103, was of this type (an R-35 district was created within an existing R-40 district), and no question was raised of the power of the board to make such a change.

In eighteen instances, [Note 3] seven of which were prior to June, 1941, the board has purported to create new combinations of use and bulk. In two of the seven instances an R-155 district was created; in the other five the new district was L-35. In one of the three instances of the creation of an R-155 district after June, 1941, the board purported to place in such a district the area on the water side of Beacon

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Street from Dartmouth Street to Massachusetts Avenue. In four instances after June, 1941, the board acted under St. 1941, c. 373, to create new multiple residence districts, no such district having been established on the map by the Legislature.

The enactment of St. 1941, c. 373, [Note 4] in the light of the board's action prior thereto is significant. Section 2 of c. 373 amended St. 1924, c. 488, by inserting a new Section 2 which included "Multiple Residence districts" in the group of use districts and further specified such districts "as appearing on the zoning map . . . filed . . . in the office of the state secretary . . . as amended from time to time by the board of zoning adjustment as hereinafter provided." Section 5 of the amending act inserted in St. 1924, c. 488, a new section 3A, limiting the uses permitted in Multiple Residence districts. (Section 3A was amended by St. 1946, c. 198, Section 1, and St. 1948, c. 165, Section 2.) Section 9 of St. 1941, c. 373, changed St. 1924, c. 488, Section 10, to make for bulk districts the same reference to the zoning map that is contained in new Section 2.

Inasmuch as the General Court did not by any reference in St. 1941, c. 373, establish on the zoning map the boundaries of any multiple residence district, it is plain that the determination of what areas should be placed in such districts was left to the subsequent action of the board under its power to "change the boundaries of districts by changing the zoning map." The only express restriction was that it must apply the standards and criteria of Section 20, and proceed in accordance therewith.

The plaintiffs' brief, in a footnote, asserts that the "[m]ultiple residence use districts [were] to be combined with thirty-five foot bulk districts . . . thus adding an eighteenth, or M-35 district, not shown on the 1924 Key to Districts." A basis for this assertion must be noticed. Section 10 of St. 1941, c. 373, substituted a new Section 11 in St. 1924, c. 488, with references to a multiple residence district.

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No other section defining a bulk district makes such a reference. The relevant language in new Section 11 is this: "In a thirty-five foot district: -- Height and Occupancy: No building or structure shall exceed thirty-five feet or two and one half stories in height and except in a multiple residence district no building or structure used for habitation . . . shall accommodate or make provision for more than two families. . . . Building area . . . In a multiple residence district the area of all buildings and accessory buildings shall not exceed twenty-five per cent of the area of the lot including all portions thereof used for streets, alleys, parks or other permanently open spaces. Open Spaces in Multiple Residence Districts: In a multiple residence district no building or accessory building shall hereafter be erected or altered to be within twenty feet of any other building nor within twenty feet of any lot or street line. . . ."

It may be asked, why, if the Legislature contemplated, for example, Multiple Residence - 40 foot districts, did it not in express terms provide in respect thereof comparably to the references to multiple residence districts in new Section 11, such as the requirement drastically limiting the total building area. This uncertainty, which we need not resolve, does not however establish an intent that only M-35 foot districts can be created. No reason comes to mind why multiple residences would be suitable in a 35 foot bulk district and not in a 40 foot bulk district. Nothing in St. 1941, c. 373, in terms restricts the board in its decision as to how to amend the map to create multiple residence districts. We hold that the controlling provision is the grant of power to the board in effect to create such districts by amending the zoning map.

Statute 1941, c. 373, approved June 12, 1941, speaks, therefore, as an acceptance by the General Court of the board's construction of its powers as exemplified in the seven amendments theretofore made to create new combinations of districts. The board's action in each instance had been recorded on the zoning map which is a part of the

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statute constituting the zoning law being amended. The Legislature gave the power to create new M bulk-use districts, by amending the map. This was recognition that the extent of the board's amending power is as broad as the board had assumed; failure to restrict the board in respect of its disclosed practice in such a closely related matter is of like significance. Burrage v. County of Bristol, 210 Mass. 299, 301-302. Powers's Case, 275 Mass. 515, 518. Mullen v. Board of Sewer Commrs. of Milton, 280 Mass. 531, 536. Lynch v. Commissioner of Educ. 317 Mass. 73, 80-82. See Assessors of Boston v. Boston Elev. Ry 320 Mass. 588, 594; Gordon v. State Tax Commn. 335 Mass. 431, 436-437. Compare State Tax Commn. v. Gray 340 Mass. 535, 541-542.

The statute as enacted in 1924 does not show the limitation for which the plaintiffs contend. The statutory grounds for exercise of the power to amend are the broad grounds underlying any exercise of the power to zone; these specifications suggest a power sufficient to meet the needs enumerated. The grounds include (St. 1924, c. 488, Section 20) "to meet altered needs of a locality, . . . and to promote the health, safety, convenience and welfare of the inhabitants . . .." "Any one of the seven grounds . . . [may] form the basis of a change of boundaries." Bradley v. Board of Zoning Adjustment of Boston, 255 Mass. 160, 173. In that opinion this court said: "Its design is to secure the administrative and executive ability of men of experience and vision in municipal planning to meet the exigencies of the present and the prospective needs of the future . . ." (p. 167). "Extensive powers are conferred on the board to change the boundaries of districts and the zoning map . . ." [Note 5] (p. 170).

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We do not agree with the plaintiffs' contention that bizarre combinations could be made by the board in combining use and bulk districts. The board's power is not unrestricted. It is strictly limited by the specifications of conditions, which, as noted, require the application of those standards which support any exercise of the zoning power.

We hold that there is in St. 1924, c. 488, an indication of an intent to grant a broad amending power and that to any extent that there is uncertainty as to original intent it has been resolved by subsequent legislative enactment. The board may establish new combinations of the use and bulk districts prescribed in the statute.

3. We are unable to agree with the conclusion of the judge that what was done constitutes "spot zoning" or that it violates the requirement of uniformity. See McHugh v. Board of Zoning Adjustment of Boston, 336 Mass. 682, 688-689. In the quotation in the margin [Note 6] from the judge's

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findings we have underlined those findings which we deem of particular significance. The justification for rezoning is shown by the finding that the neighborhood has changed to (predominantly) multiple dwellings and institutional uses. The justification for singling out Commonwealth Avenue and the water side of Beacon Street is expressly found by the judge. These areas are "peculiarly suitable for high rise construction." The February 28, 1956, rezoning of Beacon Street and back land to the river (see note 3, supra) means that, with the rezoning now in issue, all of the peculiarly suitable area has been made R-155 except Commonwealth Avenue west of Dartmouth Street. The only question therefore arises from the omission of a part of the "peculiarly suitable" area within the "remarkably homogeneous" Back Bay.

The findings establish a distinction which the board could notice between conditions east and west of Dartmouth Street. The fact that there has been less deterioration in the rezoned area could be thought to make it more acceptable to tenants in such new high rise buildings as might be built therein. There was evidence which we accept that the nearness of the area east of Dartmouth Street to the Garden and Common and downtown shops makes it an easier area in which to rent. Adjacent to the rezoned Commonwealth Avenue area is the Ritz Carlton Hotel which rises to 155 feet by virtue of the variance validated in Norcross v. Board of Appeal of the Bldg. Dept. of Boston, 255 Mass. 177; included in that area is the land at the southerly corner of Commonwealth Avenue and Arlington Street on which, by St. 1954, c. 418, is permitted a building of 155 feet.

In these circumstances it is not controlling that there is a need for new apartment houses throughout the Back Bay. The issue is how much of the area is now reasonably to be classified for high rise buildings. The similarity to each other of both sections of Commonwealth Avenue does not justify the conclusion that they are indistinguishable for purposes of resolving that issue. If the judge's conclusion that each is equally suitable with the other for the construction

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of high rise apartment structures means that, applying all relevant zoning criteria, they are indistinguishable, it is, as stated, not justified on the facts found or shown.

It was for the board to say where the new district should end. The words used in Cohen v. Lynn, 333 Mass. 699, 704, are apt. "[The rezoned area] was appropriate in size and in location. The new district had to stop somewhere and it was a matter of legislative discretion how much of the adjacent . . . residence district to include in the new district." See also Raymond v. Commissioner of Pub. Works of Lowell, 333 Mass. 410, 413-414. In Caires v. Building Commr. of Hingham, 323 Mass. 589, 596-597, we said, "a classification as the means for attaining a permissible end is not to be declared invalid `if any state of facts reasonably can be conceived that would sustain it.' Rast v. Van Deman & Lewis Co. 240 U.S. 342, 357." Compare McHugh v. Board of Zoning Adjustment of Boston, 336 Mass. 682, 686; Shapiro v. Cambridge, 340 Mass. 652. It is peculiarly for the legislative agency to determine the probable demand for high rise sites and the effect of making the area for choice of such sites extensive or relatively limited in relation to the demand, and to guide, accelerate, or retard developing trends in accordance with its judgment of the welfare of the city, applying the stated zoning standards.

The evidence shows a strong view, opposite to that of the board, held by some citizens whose interest in Boston and its sound growth is recognized and understood. But the decision must be made by the representatives to whom is delegated the duty to weight and balance the evidence, and decide in their best judgment. We have not overlooked the agreed fact that Clarendon Development Corporation at first petitioned for the change of "an area of the Back Bay, approximately twice as large and including" the rezoned areas, and withdrew that petition at the request of the board made "for the reason, among others," that the cost of giving notices would be excessive. There is no basis in this for concluding that the decision was based on expediency and not in the board's best judgment.

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The case is distinguishable from Shapiro v. Cambridge, supra. The change there relied on to support a reclassification from industry B to industry A of a part of the industry B area adjacent to a residential district was in the residential district. As it appeared that there would be little, if any, advantageous effect on the residential district resulting from this limited change in its industrial environs we ruled that the rezoned section was insufficiently distinguished in pertinent zoning aspects from the rest of the industry B area for valid reclassification.

4. The board's decision is valid on its face. The board found "that the concept of economic and modern apartment building cannot achieve its maximum development under the 80 foot height limitation, particularly in these areas which have a peculiar suitability because of the river view and open spaces for modern high rise buildings; that an economic and functional obsolescence has been taking place in the area due to the change in character of the residences from single family houses of thirty years ago to small apartments, rooming and fraternity houses, educational institutions and clubs; that there is a market for high rise modern apartments in the city which at present cannot be filled; that the planning board's rezoning study has recognized the need for a change in the height in the area; that an increased height allowance would result in substantial new apartment house construction which would be of definite aid in the urban renewal program for Boston and would be of benefit not only to the area involved but to the entire city. Thus [the board] holds that the highest and best use of the land makes necessary the change in use classification (1) to meet the altered needs of a locality, and (2) to promote the health, safety, convenience and welfare of the inhabitants of the city of Boston. It is certified that such a change is made with reasonable consideration, among other things, of the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land. It is further certified that this

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action is taken in accordance with authority given said Board of Zoning Adjustment of the City of Boston by Chapter 488 of the Acts of 1924 and amendments thereto."

The relevant criteria, which we refer to above, do not permit the conclusion that the board has by its own finding shown spot zoning as in McHugh v. Board of Zoning Adjustment of Boston, 336 Mass. 682, 688, where the rezoning was of a small lot in a changed area.

5. It is not significant in weighing the legality of the board's action that Clarendon Development Corporation initiated the proceedings which led to the rezoning, Raymond v. Commissioner of Pub. Works of Lowell, 333 Mass. 410, 412, or that its application for a variance has failed in the Superior Court.

6. Revised Ordinances of Boston, 1947, c. 41, Section 18, [Note 7] limits the height of buildings in the rezoned area on Commonwealth Avenue. That this, until and unless changed, may bar construction of high buildings does not limit the board in the exercise of its power.

7. The decree in the Superior Court is reversed. A decree is to be entered stating that the decision of the board of zoning adjustment was not in excess of its authority and no modification is required.

So ordered.