Barney & Casey Co. v. Town of Milton

• Decision Date: 16 June 1949
• Citation: 87 N.E.2d 9,324 Mass. 440
• Parties: BARNEY & CASEY CO. v. TOWN OF MILTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

324 Mass. 440

87 N.E.2d 9

BARNEY & CASEY CO.

v.TOWN OF MILTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 8, 1949.

Decided June 16, 1949.

Appeal from Land Court, Suffolk County; Courtney, Judge.

Petition by Barney & Casey Company opposed by the Town of Milton to determine validity of a zoning by-law as applied to petitioner's land. From a judgment upholding the validity of the zoning by-law, petitioner appeals.

Reversed.

T. H. Donohue, Boston, for petitioner.

F. B. Frederick, Town Counsel, Boston (F. H. Perry, Dover, on the brief), for respondent.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS and WILLIAMS, JJ.

RONAN, Justice.

The petitioner, the owner of a parcel of land in Milton, filed this petition in the Land Court in accordance with G.L.(Ter.Ed.) c. 240, § 14A, and c. 185, § 1(j 1/2), both as inserted by St.1934, c. 263, §§ 1, 2, to determine the validity of a zoning by-law as applied to this particular parcel which was zoned in a residential district. The petitioner appealed from the judge's decision that the by-law was valid and applied to its full extent to the said land.

The petitioner in 1926 acquired a triangular piece of land of a little more than six acres, which was bounded on the north for four hundred fifty-seven and fifty-five one hundredths feet by the Neponset River, on the south-west by Granite Avenue for a distance of one thousand seventy-eight and one tenth feet, and southeasterly by marshland for a distance of one thousand seven feet. The Neponset River is the boundary between Boston and Milton. The marshland adjoining the southeasterly side of the locus consisting of about forty acres extends easterly to the boundary of the city of Quincy and also extends southerly from the river from one third to one half mile. This adjoining tract of marshes has never been developed or improved. The southerly end of this marshland at Granite Avenue extends to a natural upland known as Courtland Circle, which is occupied by numerous residences. Opposite the petitioner's land on the westerly side of Granite Avenue and extending southerly for a distance of about a mile from the river is a wide expanse of unimproved marshland, known as the Metropolitan Reservation and under the supervision and control of the metropolitan district commission. This reservation extends westerly for about a mile to the foot of Milton Hill which comprises a fine residential section. The locus is in about the middle of the northerly boundary of a tract of marshes which adjoins the southerly bank of Neponset River and extends from Milton Hill to the city of Quincy.

The petitioner's land is partly natural upland and partly filled. Considerable inexpensive filling has been made in the rear of the lot to keep out the water and debris washed in by the tide. At very high tides practically the whole of the middle portion of this parcel of land and much of the rest of the premises are flooded. In 1944 and 1945 the petitioner expended $3,000 for cheap fill for this middle part of the parcel to protect the remainder of its land from the tide and accompanying debris. The top soil is soft and not suitable for the construction of heavy buildings. It is necessary to go down various depths to reach solid ground. At one point hardpan was reached thirty-eight feet below the surface. Ordinary two-story dwellings would probably need some special foundation to prevent settling. A main lumber shed on the parcel is supported by piles and the fill around this shed has settled to a noticeable degree, probably due to heavy trucking over it, and possibly some of the fill has been carried away as dust and some by the action of the tide. Heavy construction would require piling or a solid concrete mat. This would increase the cost of building for residential or commercial purposes. This additional cost of construction of dwellings ‘may well be a discouraging factor at present but a decreasing availability of suitable home sites in such a desirable community and so close to Boston may well be incentive enough to induce home construction in the future.’

Prior to the adoption of a zoning by-law by the town in 1922, a part of the premises had been used as a coal yard. The owner had in the summer of 1926 secured a variance in the application of this by-law which permitted the use of the entire premises for a wide variety of purposes. The petitioner purchased the premises in October, 1926, and has since used the northerly portion, having a frontage of five hundred thirty feet on Granite Avenue, for a wholesale and retail lumber business. In 1932 a small portion of the original parcel forming its southerly apex and having a frontage of one hundred fifty feet on Granite Avenue was sold by the petitioner and since has been used for a gasoline filling station. The land between the part used for the lumber yard and the filling station and fronting on Granite Avenue for about four hundred feet has remained unimproved and is hereinafter referred to as the vacant lot. The petitioner apparently secured two variances from the board of selectmen in 1932; one apparently referred to the part of the premises used as a lumber yard and the other to the filling station lot, the petitioner agreeing that the former variance granted in 1926 was null and void as to the vacant lot and relinquishing any benefit or rights as to this vacant lot which it might have acquired under the variance of 1926. The zoning by-law of the town was revised in 1938 and also has been amended, but the petitioner's land has since the original by-law of 1922 been zoned in a residential district.

The board of selectmen, apparently acting as a board of appeal, when it granted the variances in 1932 found that the petitioner's premises were chiefly marshland and were at one time used as a dump; that the land was filled for a distance of one hundred fifty feet from Granite Avenue; that there was an old wharf on the northerly part of the premises which was used in connection with a coal business prior to the enactment of the zoning by-law in 1922; that the buildings used in the coal business had been torn down and the coal business discontinued; and that the nearest dwelling house was one third of a mile away. It further found that, ‘from the nature of the land, its natural surroundings, and its proximity to the Neponset River and the industrial district of the city of Boston * * * the land is not fitted for residence purposes or for other purposes permitted by the zoning by-law within the residence district of the town and consequently that enforcement of the zoning by-law would involve practical difficulty and unnecessary hardship and that relief may be granted without substantially derogating from the intent or purpose of such by-law.’

The judge found that the petitioner's use of its land as a lumber yard was not sufficiently different in character from its original use as a coal yard to defeat a valid nonconforming use if one existed when the by-law first became effective in 1922, and the respondent concedes that it is immaterial for present purposes whether the petitioner's lumber business is carried on under a variance or as a nonconforming use. What the petitioner is seeking is to free its land from the restrictions which the by-law purports to impose. The relief sought has nothing whatever to do with spot zoning, so called, as the respondent argues. The petitioner is not requesting any affirmative action by the town.

The respondent does not now contend that the maintenance of the petition is barred by Spector v. Building Inspector of Milton, 250 Mass. 63, 145 N.E. 265, which held that the general and comprehensive zoning plan adopted by the town in 1922 came within constitutional bounds and also the provisions of the enabling statute, and further that the petitioner in that case, who owned a piece of real estate in a different part of Milton from the land now in question, was not wrongfully deprived of any proprietary interests by a zoning regulation that placed his land in a residential section. The petitioner, in the instant case, does not attack the validity of the general plan of the zoning by-law or contend that the town lacked authority to exclude business from a residential zone, but merely contends that the application of the zoning regulation to its land is an arbitrary, unreasonable, and oppressive interference with its rights in the property and is violative of the provisions of the Constitution of the Commonwealth and the Fourteenth Amendment to the Constitution of the United States. The Spector case was rightly decided, and nothing here said is inconsistent with what was settled there. A decision sustaining the validity of a comprehensive zoning regulation does not preclude a landowner from showing that the regulation cannot be lawfully applied to a specific parcel of land in the peculiar circumstances connected with that parcel of land. Euclid v. Ambler Realty Co. 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016;Nectow v. Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842;People v. Rockford, 363 Ill. 531, 2 N.E.2d 842;People v. Chicago, 402 Ill. 321, 83 N.E.2d 592;Glencoe Lime & Cement Co. v. St. Louis, 341 Mo. 689, 108 S.W.2d 143;Chrome Plating Co., Inc., v. Milwaukee, 246 Wis. 526, 17 N.W.2d 705.

The contention that the petitioner was guilty of laches cannot be sustained. Mere delay in attacking the validity of the by-law, with nothing to show that any prejudice or disadvantage thereby resulted to the respondent, does not constitute laches. Westhampton Reservoir Recreation Corp. v. Hodder, 307 Mass. 288, 29 N.E.2d 913; Goldstein v. Beal, 317 Mass. 750, 759, 59 N.E.2d 712;Porotto v. Fiduciary Trust Co., 321 Mass. 638, 644, 75 N.E.2d 17. The existence of a zoning by-law which purports to apply to one's land but which in fact cannot be lawfully applied, constitutes a direct invasion of the rights of the owner, and it has been said that mere...