The petitioners are owners of freehold estates in possession in properties in Wellesley zoned for single residences. They have filed in the Land Court a petition under G.L. (Ter. Ed.) c. 240, § 14A, and c. 185,
The Berger case involved a bill for declaratory relief brought to determine the right of the town, under its then existing zoning by-law, to lease certain land, partly in a single residence district, from a Mrs. Fraser for the purpose of maintaining a municipal parking lot for automobiles. In the Superior Court, on October 13, 1955, by what may have been (and this we need not decide) an unduly restrictive interpretation of the words "other public use" in § 2 B 3 prior to its amendment on November 28, 1955, it was determined that the unamended section did not permit the use of land then proposed. When the matter reached this court, the controversy was dismissed on May 11, 1956, as moot because of the amendment, which had become effective a short time earlier.
The trial judge, in the present case, recited these facts relating to the Berger case and made the following findings. Certain of the petitioners own land "in a single residence district in the Wellesley Square area, near ... land owned by Helen L. Fraser, which the selectmen of ... Wellesley were authorized to lease for ... a municipal parking lot for automobiles." The Wellesley planning board in 1950 caused a study of traffic congestion in Wellesley center to be made by experts, who recommended taking a major part of the block including the Fraser land. There are six municipal parking lots in Wellesley established and enlarged at various times between 1930 and 1953. The planning board recommended
The petitioners saved an exception to the refusal to admit
Although the petition seeks a declaration of rights and injunctions based on the alleged general invalidity of the amendment of § 2 B 3 of the zoning by-law, the bill of exceptions indicates that the controversy arose principally because of the proposal of the town to lease the Fraser land. It could have been found (a) that Mrs. Fraser controlled property in the Wellesley Square area, in part leased to Wm. Filene's Sons Company and in part used for other purposes; (b) that Filene's had long been worried about parking because "they cannot exist without it"; (c) that the Filene's lease was valuable to the town; (d) that Mr. Fraser, a member of the Wellesley planning board, was active, in the interest of himself and the town, in pressing for an arrangement by which Mrs. Fraser would make available land directly behind the Filene's store for lease by the town under the arrangement already described (see note 2, supra); (e) that it would not be desirable to use for parking other land in the business district "because the business areas in Wellesley are very ... few and ...
1. "Every presumption is to be made in favor of" the amended § 2 B 3. "The fact that the question is debatable does not empower the court to substitute its judgment" for that of the town. Cohen v. Lynn, 333 Mass. 699, 705, and cases cited. The validity of the amendment must be sustained unless the petitioners sustain the heavy burden of showing that it is in conflict (a) with the provisions of G.L. (Ter. Ed.) c. 40A, inserted by St. 1954, c. 368, § 2 (authorizing towns to enact zoning by-laws), or (b) with applicable constitutional provisions, on the ground that "there is no substantial relation between it and the furtherance of any of the general objects" (see Lundy v. Wayland, 328 Mass. 581, 583, and cases cited) stated in the enabling legislation. These objects (see G.L. [Ter. Ed.] c. 40A, § 3) are (in part) "to lessen congestion in the streets; to conserve health; to secure safety from fire ... and other dangers; ... to facilitate the adequate provision of transportation ... schools, parks and other public requirements; to conserve the value of land and buildings; to encourage the most appropriate use of land ...; and to preserve and increase its amenities."
It is now well settled that the "provision of off-street parking spaces is a public purpose" under modern conditions. Tate v. Malden, 334 Mass. 507, 508. Cabot v. Assessors of Boston, 335 Mass. 53, 64. As a general principle, and in the light of the testimony about the specific traffic congestion in or near the present or proposed Wellesley town parking lots, this court cannot say that the town meeting was arbitrary and unreasonable in revising its zoning by-law so as clearly to permit town parking lots
It is, of course, no objection to an honest legislative solution of a public problem that it will incidentally lead to private profit or advantage. See Court Street Parking Co. v. Boston, ante, 224, 229-230. Accordingly, the amendment of § 2 B 3 is not invalid because it would assist the owners of nearby business properties and others to retain tenants and help such tenants to attract customers to their stores. There is nothing in the facts appearing here, with respect to the proposed Fraser parking lot, which affects the general validity of § 2 B 3, and, on this record, we see no basis for contending that specific application of the amendment to the Fraser lot would deprive the petitioners of any constitutional right. Indeed the evidence directly relating to the need for the Fraser parking lot in the public interest tends to support the view that the amendment was permissible.
The fact that parking lots in residential areas would be a detriment to some adjacent properties (see Spector v. Building
The petitioners also contend that the amendment is invalid because it permits only the town to maintain parking lots in residence areas. The town's reservation to itself of this monopoly by an appropriate zoning provision cannot be said to bear no reasonable relation to the public interest. The evidence shows a long continued town policy of operating town parking lots beginning in 1930. By reserving to itself the privilege of operating such lots in residence areas, the town retained complete control (through its town meeting, a public body) of a type of operation, which, if generally permitted in residence areas, might do damage to the whole zoning scheme. It could be found that the amendment was designed to enable the town meeting itself to restrict such town parking lots to those parts of residence areas close to business areas, where presumably the public need would be greatest and any resulting damage to residential property least burdensome. To be sure, the town might have avoided a wholesale invasion of residence areas by parking lots if it had established a by-law allowing such lots only after the granting of a permit in each particular case, as in the provision with respect to motels considered in the Burnham case (333 Mass. 114). The town, however, was not limited to this method of preventing widespread invasion of residential areas by parking lots.
Although the town was bound to comply with any general provision of its zoning by-law applicable to it Building Commissioner of Medford v. C. & H. Co. 319 Mass. 273, 283),
When a town proceeds to operate a parking lot to relieve a public need (Tate v. Malden, 334 Mass. 507, 508), it is acting in aid of its power to maintain highways (see Pelletier v. Beverly, 292 Mass. 468, 469) and essentially in at least a quasi governmental capacity, well beyond (compare MacRae v. Selectmen of Concord, 296 Mass. 394, 396-399) merely engaging in a private business venture of a proprietary character. As has been indicated above, the town in framing its zoning by-law may reasonably permit itself to carry on this quasi governmental activity in areas where it is unwilling to permit private individuals to do so,
2. The petitioners offered to show (a) that the proposal set out in an article in the warrant for the 1956 annual town meeting, if adopted, would have placed an area, which included the Fraser site, within a zone where parking lots could be operated by persons other than the town, as well as by the town, and (b) that the proposal was defeated at the meeting. The offered evidence was wholly immaterial to the validity of the amendment of § 2 B 3 which permitted only town operation.