Atherton v. Selectmen of Bourne

Decision Date04 April 1958
Citation149 N.E.2d 232,337 Mass. 250
PartiesHarry ATHERTON and others v. SELECTMEN OF BOURNE and another.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Allan M. Hale, Middleboro, and John O. Parker, Boston, for petitioners.

Frederick J. Smith, Buzzard Bay, for respondents.


WILKINS, Chief Justice.

In Atherton v. Board of Appeals of Town of Bourne, 334 Mass. 451, 136 N.E.2d 201, this court annulled a decision of the board of appeals, which had granted a variance from the zoning by-law to one Bigelow. The variance was one permitting him to construct on a parcel in a residence district on Phinney's Point in Bourne certain buildings for the conduct of a business of building, repairing, and storing boats. Work had begun on a building, but when the variance was annulled on July 20, 1956, the respondent building inspector of Bourne ordered Bigelow to stop work. When work stopped, the concrete foundation and the first floor were completed, but not the walls and roof. Bigelow then took steps to insert in the warrant for a special town meeting an article to amend the zoning by-law to reclassify his land and three parcels to the north and three parcels to the south from a residence district into a general use district. On September 17, 1956, the amendment was passed. After it became effective, following approval by the Attorney General and advertising, the respondent building inspector informed Bigelow that the 'stop work order' was no longer in effect. 1 Construction was resumed. No new building permit was issued.

This petition for a writ of mandamus is by three owners of the rezoned land and by an owner of land across a private road from the Bigelow parcel. They seek an order that the respondent board and building inspector enforce the zoning by-law as it stood before the purported amendment of September 17, 1956, and terminate the use of the premises for the storing, building, repairing, and servicing of boats or for any other industrial or commercial purpose not permitted in a residence district. The case was heard by a judge, who made a lengthy statement of the material facts found by him, from which, except as otherwise indicated, we have taken the facts herein stated. The judge ruled that the amendment was invalid, but that the petitioners' remedy was by appeal under G.L. (Ter.Ed.) c. 40A, § 13, as appearing in St.1955, c. 325, § 1. The petition was dismissed, and the petitioners appealed.

The town adopted the zoning by-law on August 2, 1949. There are two classifications: residence districts and general use districts. The latter is really no classification, for in such districts 'no restriction or regulation is imposed * * * upon the use made of buildings, structures or premises.' The uses permitted in a residence district are: single family dwellings; the conduct of a business, profession, or art by the occupant of the dwelling on the same premises with no merchandise or materials visible to the passing public; certain very limited home industries conducted by resident occupants with no merchandise or materials visible to the passing public; agricultural uses, including roadsise stands for the sale of products of the land; boarders and lodgers with a resident family; certain nonprofit patriotic, fraternal and other organizations and clubs; religious uses; telephone exchanges; hospitals; town buildings; and certain limited accessory uses and small signs.

Phinney's Point is bounded on the east by the tracks of the New York, New Haven and Hartford Railroad and on the west by Buzzard's Bay. It is separated from the rest of the town by the tracks and is reached only by a narrow road, twelve to fifteen feet wide, which crosses the tracks. 'Phinney's Point is a homogeneous unit for zoning purposes. Indeed, it would be difficult to conceive of one that was more so.' Atherton v. Board of Appeals of Bourne, 334 Mass. 451, 454, 136 N.E.2d 201, 203.

By the zoning by-law in its original form all of Phinney's Point was classified as a general use district. By an amendment of February 12, 1951, the point was reclassified as a residence district, and all of it so remained until the passage of the disputed amendment of September 17, 1956.

The Bigelow parcel contains 'more than one acre,' but the size of the other six parcels does not appear in the judge's findings or in the reported evidence. 2 The three parcels north of the Bigelow land are (1) land of Theresa M. Reinhardt, on which is a single family summer cottage; (2) land of the petitioner Lawson and his wife on which is a substantial single family summer dwelling; and (3) vacant land of the town covered by some growth of trees. The three parcels south of the Bigelow land are (1) vacant land of the petitioner Alden fronting on the water and used by her in connection with a single family summer dwelling located several lots distant; (2) vacant land of John E. and Lillian F. Reinhardt; and (3) land of the petitioner Jose Fernandes and his wife on which is a barn or other building accessory to a very substantial single family residence located on a lot separated by a private road.

The building constructed by Bigelow has a frontage of about ninety feet facing the water, and is about sixty-five feet wide. It is one story high with side walls of corrugated metal and a roof which is substantially flat. It is visible from parts of the premises of the petitioners and of other persons. There is a metal rail track on a trestle from the water across the beach to the building for use in moving boats to the building.

No part of Phinney's Point except the Bigelow boat yard has ever been used for other than residential purposes. The boat yard is for the storing, repairing, and building of boats up to fifty feet in length. It will involve the operation of whatever tools and machinery may be necessary to carry on the business; the storage of materials in the building and about the premises; and the presence of boats in the water in front of the premises in varying numbers for varying periods of time. The number of persons employed will vary with the volume of business. Traffic will be substantially greater than for residential use. There will be vehicles of employees and customers and commercial vehicles transporting materials and boats to and from the premises. These must pass over the narrow, private railroad crossing, and, there being no public ways, will reach the boat yard over a narrow private road used in common by all residents and visitors. The boat yard building is the only one constructed on the point in the last twenty years. There has been no change in the physical characteristics or in the use of property except that some houses formerly occupied only in summer may be occupied the entire year.

In his findings the judge quoted from G.L. (Ter.Ed.) c. 40A, § 2, inserted by St.1954, c. 368, § 2: 'Due regard shall be paid to the characteristics of the different parts of the city or town, and the zoning regulations in any city or town shall be the same for zones, districts or streets having substantially the same character.' He then made these findings. The amendment does not comply with this requirement. In its enactment 'no regard was had to the characteristics of the different parts of the town.' The only area considered was that which the amendment sought to reclassify. That area is of substantially the same character as the remainder of Phinney's Point which was not relassified. It is also of the same character as much other waterfront land in the town which is classified as a residence district. The amendment attempts to single out a small tract of land for different treatment from that accorded to similar surrounding land indistinguishable from it in character, all for the economic benefit of Bigelow.

The judge also quoted from c. 40A, § 3, inserted by St.1954, c. 368, § 2: 'Zoning regulations and restrictions shall be designed among other purposes to * * * conserve the value of land and buildings; to encourage the most appropriate use of land throughout the city or town * * *.' He then made these findings. The amendment will not conserve the value of land and buildings, but instead will result in a lessening of the value of land and buildings both in the area which it purports to reclassify and Phinney's Point generally. The presence of a tract of land without zoning restrictions as to use will operate as a deterrent to persons who might otherwise desire to purchase property on Phinney's Point. The most appropriate use of the land on the point is for residential purposes and not for commercial or industrial purposes. If the amendment had been confined to the Bigelow land, the result might have been 'spot zoning.' This conclusion would follow from the fact of singling out a small tract for different treatment from that accorded land indistinguishable from it in character. The conclusion would also be supported by reason of the small area sought to be reclassified. The proponents appear to have anticipated a charge of 'spot zoning,' and to have enlarged the area to include three lots on each side of the Bigelow lot. These additional six owners did not seek reclassification, and there is no evidence that they desire it. Three of these owners are petitioners. The amendment would be no less 'spot zoning' by the inclusion of the additional six lots than it would be without them.

The respondents seem to make the astonishing contention that the town's vote in enacting the by-law is a judicially unreviewable act. The argument, if made, overlooks the elementary principle that a town is merely a subordinate agency of State government created for convenient administration and has only those powers which are expressly conferred by statute or necessarily implied from those expressly conferred or from undoubted municipal rights or privileges....

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