City of Newburyport v. Thurlow
| Decision Date | 07 March 1949 |
| Citation | 324 Mass. 40,84 N.E.2d 450 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | CITY OF NEWBURYPORT v. BURNLEY S. THURLOW & another. |
February 8, 1949.
Present: QUA, C.
J., LUMMUS, RONAN WILKINS, & SPALDING, JJ.
Zoning. Newburyport.
1938," must have been the map referred to in and was sufficiently identified to constitute a part of a zoning ordinance enacted by the city council in 1940, which divided the city into five classes of districts, none of whose locations could be ascertained from the ordinance itself, although such map was not separately adopted and was not identified in terms in the ordinance by reference to legend, name, date or other distinguishing marks and the only references to any map therein were to "said map," "the map," or "the zoning map," where it appeared that in 1945 the ordinance and the above described map, together with all other ordinances of the city, were in a locked compartment in the city clerk's office used for the keeping of the ordinances, that there was no other zoning map on file in the office or known to the city clerk, that the ordinance and that map exactly corresponded in the number and names of classes of zoning districts, and that the ordinance and that map were open to inspection by the public and were shown to citizens making inquiries about the zoning ordinance, and it did not appear that any other zoning map was in existence at the time of the adoption of the ordinance. The provisions of G. L. (Ter. Ed.) c. 41, Section 81C, inserted by St.
1936, c. 211 Section 4, respecting an "official map" of a municipality, have no relation to a zoning map.
BILL IN EQUITY, filed in the Superior Court on October 24, 1947. The suit was heard by Murray, J.
J. T. Connolly, for the plaintiff. B. J. Lojko, for the defendants.
This is a bill in equity seeking to enjoin the defendants from conducting a clam shucking plant, a clam business, and a tin shipping container business upon certain premises in violation of the zoning ordinance of the city. The defendants admit that they maintain such a business at the said location, which, the city alleges, has been zoned as a general residential district in which the conduct of such a business is prohibited. The defendants contend that the ordinance itself, independently of a certain map which they say was not a part of the ordinance, did not establish the said district by metes and bounds or by any other description with reference to streets, blocks or other physical objects or in any other manner by which its boundaries may be determined. They concede that the bounds of the district were plainly delineated upon and could be readily ascertained from a certain map, but they contend that this map cannot be considered a part of the zoning ordinance.
The judge sustained this contention, ordered the bill dismissed, and reported the suit to this court.
We have a transcript of that portion of the testimony which the parties with the approval of the judge stipulated was all the material evidence, together with an agreement as to material facts, a copy of the plan, and also the findings of the judge. The issue before the judge and before us is whether the map was a part of the zoning ordinance. The answer to this issue rests upon documentary evidence and undisputed facts. Nothing turns upon the credibility of witnesses.
The zoning ordinance was enacted in 1940. It divided the city into five classes of districts, none of which was described in the ordinance itself by metes or bounds or by any physical bounds. No one could ascertain the location of any of these districts by a mere reading of the ordinance. The boundaries of these districts were established by Section III of the ordinance, which in so far as material provided that "The boundaries between districts are as shown upon said map"; that zone lines shall be property...
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