234 Mass. 597 (1920), Opinion of Justices to House of Representatives

Citation234 Mass. 597
Party NameOPINION OF THE JUSTICES TO THE HOUSE OF REPRESENTATIVES.(Opinions of the Justices.)
Case DateApril 29, 1920
CourtSupreme Judicial Court of Massachusetts

Page 597

234 Mass. 597 (1920)

OPINION OF THE JUSTICES TO THE HOUSE OF REPRESENTATIVES.(Opinions of the Justices.)

Supreme Judicial Court of Massachusetts.

April 29, 1920

A statute, providing that a city or town may, by ordinance or by-law, restrict buildings to be used for particular industries, trades, manufacturing or commercial purposes to specified parts of the municipality, or may exclude them from specified parts, or may provide that such buildings, if situated in certain parts of the municipality, shall be subject to special regulations as to their construction or use, would be within the powers conferred by art. 60 of the Amendments to the

Constitution of the Commonwealth.

A further provision in the statute above described empowering the municipality to provide by ordinance or by-law that certain kinds of dwelling houses and tenement houses shall be restricted to specified parts of the municipality or shall be excluded from specified parts, or that dwelling houses or tenement houses situated in specified parts shall conform to regulations in respect to their construction or use which do not apply to such buildings in other parts of the municipality, also would be within the powers conferred by art. 60 of the Amendments to the Constitution of the Commonwealth.

A provision of the same statute, that, for the purposes above described, the municipality may be divided into districts and zones and the construction and use of buildings in each district or zone may be regulated as above provided, would be constitutional.

If a section of the statute above described, reading, "The provisions of this act shall be carried out in such manner as will best promote the health, safety, convenience and welfare of the inhabitants, will lessen the danger from fire, will tend to improve and beautify the city or town, will harmonize with its natural development, and will assist the carrying out of any schemes for municipal improvement put forth by any municipal planning board or board of survey or other like authority," is interpreted as requiring that all the elements there named shall be considered in their due proportions, and the words therein, "schemes for municipal improvement," are interpreted as including only such schemes as do not violate the rights of property secured by the Constitutions of the Commonwealth and of the United States against public interference through the police power, such section would be constitutional.

No provision of the State or of the Federal Constitution would be contravened by a statute containing the provisions above described and also appropriate provisions making the delegation to cities and towns and to municipal officers of the powers necessary to carry out the purposes of the statute; requiring hearings after proper notices before the establishment of the ordinances and by-laws

Page 598

described in the statute; providing for appropriate proceedings on appeal from certain acts of municipal officers under ordinances and by-laws established according to the statute and for the enforcement of the provisions of the statute by proceedings in the Superior Court; exempting from the operation of the statute existing structures and the existing use of any building, but not so exempting any alteration of an existing structure to provide for its use for a purpose or in a manner substantially different from that to which it was put before the alteration, and also exempting any existing or proposed building used or to be used by a public service corporation if the department of public utilities, after a public hearing, should decide that the situation of the building in question is reasonably necessary for the convenience or welfare of the public. The provisions of a section of the statute above described, reading, "No ordinance or by-law established hereunder shall be repealed or modified except after reasonable notice of the proposed repeal or modification, and an opportunity to the objectors to be heard thereon. If any owner of real estate which would be affected by the proposed ordinance or by-law objects thereto, it shall not be established except by a unanimous vote of all the members of the city council of the city, or of the voters of the town voting thereon; and in no case shall such an ordinance or by-law be repealed or modified except by a two thirds vote of all the members of the city council, or by a two thirds vote of the voters of a town voting thereon at an annual or special town meeting duly called for the purpose," would be constitutional.

THE following order was passed by the House of Representatives on April 29, 1920, and on April 30, 1920, was transmitted to the Justices of the Supreme Judicial Court.

ORDERED, That the Justices of the Supreme Judicial Court be requested to inform the House of Representatives whether, in their opinion, the provisions of the Bill to authorize cities and towns to limit buildings according to their use or construction (House, No. 1660), now pending, and copies of which are transmitted herewith, would be legal and constitutional if enacted into law.

House Bill No. 1660, referred to above, was as follows: An Act to authorize Cities and Towns to limit Buildings according to their

Use or Construction to Specified Districts. Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. A city or town may, by ordinance or by-law, restrict buildings to be used for particular industries, trades, manufacturing or commercial purposes to specified parts of the city or town, or may exclude them from specified parts of the

Page 599

city or town, or may provide that such buildings, if situated in certain parts of the city or town, shall be subject to special regulations as to their construction or use. A city or town may also, by ordinance or by-law, provide that certain kinds of dwelling houses and tenement houses shall be restricted to specified parts of the city or town, or shall be excluded from specified parts of the city or town, or that dwelling houses or tenement houses situated in specified parts of the city or town shall conform to certain regulations in respect to their construction or use which do not apply to such buildings in other parts of the city or town. For the above purpose the city or town may be divided into districts or zones, and the construction and use of buildings in each district or zone may be regulated as above provided.

SECTION 2. The provisions of this act shall be carried out in such manner as will best promote the health, safety, convenience and welfare of the inhabitants, will lessen the danger from fire, will tend to improve and beautify the city or town, will harmonize with its natural development, and will assist the carrying out of any schemes for municipal improvement put forth by any municipal planning board or board of survey or other like authority. Due regard shall be paid to the characteristics of the different parts of the city or town, and the ordinances or by-laws established hereunder in any city or town shall be the same for zones, districts or streets having substantially the same character.

SECTION 3. No ordinance shall be established hereunder in any city until after a public hearing thereon has been held, notice of which shall be published, at least thirty days before the hearing, in a newspaper published in the city concerned, or in the county if no newspaper is published in the city. The hearing shall be given by the city council or by such officer, board, commission or committee as may be designated or appointed for the purpose by the city council. No by-law shall be established hereunder by any town except at an annual or special town meeting the warrant for which contains a notice of the proposed by-laws.

SECTION 4. It shall be the duty of the superintendent of buildings, or the officer or board having supervision of the construction of buildings, or the power of enforcing the municipal building laws, and if in any town there is no such officer or board, then it

Page 600

shall be the duty of the selectmen, to withhold a permit for the construction or alteration of any building if the building as constructed or altered would be in violation of any ordinance or by-law established hereunder; and it shall be the duty of municipal officers to refuse any permit or license for the use of a building which use would be in violation of any ordinance or by-law established hereunder.

SECTION 5. Any person who is aggrieved by the refusal of a permit under the provisions of the preceding section may appeal to the municipal officer or board to which a right of appeal lies from decisions under the building laws of the city or town, and if there is no such officer or board, then the appeal shall lie to the city council of the city or to the selectmen of the town, or to such officer, board, commission or committee as shall be designated or appointed by the city council of the city or by the selectmen of the town, to act as a board of appeals hereunder.

SECTION 6. The Superior Court shall have jurisdiction to enforce the provisions of this act, and may restrain by injunction any violation thereof.

SECTION 7. This act shall not apply to existing structures nor to the existing use of any building, but it shall apply to any alteration of a building to provide for its use for a purpose, or in a manner, substantially different from the use to which it was put before the alteration.

SECTION 8. This act shall not apply to any existing or proposed building used or to be used by a public service corporation: provided, that upon a petition of the corporation, the department of public utilities shall, after a public hearing, decide that the situation of the building in question is reasonably necessary for the convenience or welfare of the public.

SECTION 9. No ordinance or by-law established...

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93 practice notes
  • 159 S.E. 401 (Ga. 1931), 7966, Howden v. Mayor & Aldermen of Savannah
    • United States
    • Georgia Supreme Court of Georgia
    • June 11, 1931
    ...districts. Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 184 N.W. 823, 188 N.W. 921, 23 A.L.R. 1322; In re Opinion of the Justices, 234 Mass. 597, 127 N.E. 525; State v. New Orleans, 154 La. 271, 97 So. 440, 33 A.L.R. 260; State v. New Orleans, 154 La. 287, 97 So. 445; State v. Harper, 18......
  • 195 N.W. 544 (Wis. 1923), State ex rel. Klefisch v. Wisconsin Telephone Company
    • United States
    • Wisconsin Supreme Court of Wisconsin
    • October 16, 1923
    ...pursuant thereto have been sustained in Des Moines v. Manhattan Oil Co. 193 Iowa 1096, 184 N.W. 823; In re Opinion of the Justices, 234 Mass. 597, 127 N.E. 525; Lincoln Trust Co. v. Williams B. Corp. 229 N.Y. 313, 128 N.E. 209; Ware v. Wichita, 113 Kan. 153, 214 P. 99, although contrary con......
  • 310 Mass. 330 (1941), Animal Rescue League of Boston v. Assessors of Bourne.
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • November 25, 1941
    ...Erickson, 216 Mass. 81 . Downey v. Bay State Street Railway, 225 Mass. 281 . Hurnanen v. Nicksa, 228 Mass. 346 . Opinion of the Justices, 234 Mass. 597 . Squires v. Fraska, 301 Mass. 474 . Boston v. A. W. Perry, Inc. 304 Mass. 18 . The mere definition of a word having such a broad significa......
  • 149 N.E. 30 (Ohio 1925), 18750, Pritz v. Messer
    • United States
    • Ohio Supreme Court of Ohio
    • May 19, 1925
    ...Wis. 35, 198 N. W., 852 (1924); State ex rel. Morris v. Osborn, 22 Ohio N. P., (N. S.), 549, 31 Ohio Dec., 98, 197; Opinion of Justices, 234 Mass. 597, 127 N. E., 525; Building Inspector of Lowell v. Stoklosa (Mass.), 145 N. E., 265; Brett v. Building Commr. of Brookline (Mass. 1924), 145 N......
  • Request a trial to view additional results
92 cases
  • 159 S.E. 401 (Ga. 1931), 7966, Howden v. Mayor & Aldermen of Savannah
    • United States
    • Georgia Supreme Court of Georgia
    • June 11, 1931
    ...districts. Des Moines v. Manhattan Oil Co., 193 Iowa 1096, 184 N.W. 823, 188 N.W. 921, 23 A.L.R. 1322; In re Opinion of the Justices, 234 Mass. 597, 127 N.E. 525; State v. New Orleans, 154 La. 271, 97 So. 440, 33 A.L.R. 260; State v. New Orleans, 154 La. 287, 97 So. 445; State v. Harper, 18......
  • 195 N.W. 544 (Wis. 1923), State ex rel. Klefisch v. Wisconsin Telephone Company
    • United States
    • Wisconsin Supreme Court of Wisconsin
    • October 16, 1923
    ...pursuant thereto have been sustained in Des Moines v. Manhattan Oil Co. 193 Iowa 1096, 184 N.W. 823; In re Opinion of the Justices, 234 Mass. 597, 127 N.E. 525; Lincoln Trust Co. v. Williams B. Corp. 229 N.Y. 313, 128 N.E. 209; Ware v. Wichita, 113 Kan. 153, 214 P. 99, although contrary con......
  • 310 Mass. 330 (1941), Animal Rescue League of Boston v. Assessors of Bourne.
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • November 25, 1941
    ...Erickson, 216 Mass. 81 . Downey v. Bay State Street Railway, 225 Mass. 281 . Hurnanen v. Nicksa, 228 Mass. 346 . Opinion of the Justices, 234 Mass. 597 . Squires v. Fraska, 301 Mass. 474 . Boston v. A. W. Perry, Inc. 304 Mass. 18 . The mere definition of a word having such a broad significa......
  • 149 N.E. 30 (Ohio 1925), 18750, Pritz v. Messer
    • United States
    • Ohio Supreme Court of Ohio
    • May 19, 1925
    ...Wis. 35, 198 N. W., 852 (1924); State ex rel. Morris v. Osborn, 22 Ohio N. P., (N. S.), 549, 31 Ohio Dec., 98, 197; Opinion of Justices, 234 Mass. 597, 127 N. E., 525; Building Inspector of Lowell v. Stoklosa (Mass.), 145 N. E., 265; Brett v. Building Commr. of Brookline (Mass. 1924), 145 N......
  • Request a trial to view additional results