Bldg. Com'r of Medford v. C. & H. Co.

• Decision Date: 06 March 1946
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BUILDING COM'R OF MEDFORD v. C. & H. CO. C. & H. CO. v. BOARD OF HEALTH OF MEDFORD.

319 Mass. 273

65 N.E.2d 537

BUILDING COM'R OF MEDFORD

v.C. & H. CO.

C. & H. CO.

v.BOARD OF HEALTH OF MEDFORD.

Supreme Judicial Court of Massachusetts, Middlesex.

March 6, 1946.

Suit by the Building Commissioner of Medford against the C. & H. Company to enjoin defendant from using a certain parcel of land for the dumping of garbage, ashes, and other household refuse unless such use is approved by board of aldermen and authorized by board of health; and proceeding by the C. & H. Company against the Board of Health of Medford for a writ of certiorari to quash the action of the board of health revoking a permit to use a dump. From a decree in the first suit permanently enjoining the use of the dump without approval of board of aldermen and authorization by board of health and from a judgment dismissing the petition for writ of certiorari, the C. & H. Company appeals.

Affirmed.Appeals from Superior Court, Middlesex County; Brogna, Judge.

Before FIELD, C. J., and LUMMUS, DOLAN, RONAN, and SPALDING, JJ.

A. C. York, City Sol., and A. J. Kirwan, both of Medford, for Building Com'r and Board of Health of Medford.

S. R. Wrightington, of Boston, for C. & H. Co.

RONAN, Justice.

The defendant in the first case has appealed from a final decree permanently enjoiningit from using a certain parcel of land for the dumping of garbage, ashes or other household refuse unless such use is approved by the board of aldermen and authorized by the board of health, but allowing it to fill in its land in any manner which is permitted by the zoning ordinance and which will not, in the judgment of the board of health, make it a menace to health or property. The defendant in the first case as the petitioner in the second case appealed from a judgment dismissing its petition for a writ of certiorari seeking to quash the action of the board of health revoking a permit to use as a dump the same premises mentioned in the bill in equity.

The city of Medford adopted a zoning ordinance in 1925 dividing the city into six districts. The C. & H. Co. purchased between 1928 and 1935 a large area of marsh land between Riverside Avenue and Mystic Valley Parkway in said Medford. This land has since the enactment of the zoning ordinance been located in a heavy industrial district where the buildings and land by virtue of section 9 of this ordinance may, subject to section 19, be used for any purpose except for dwellings or for thirty-nine specific industries like abattoirs, stockyards, rendering works, glue factories, tanneries and for use injurious to the safety and welfare of the neighborhood ‘because of any excessive nuisance qualities.’ No permit for the use of land in this district for a junk yard, sand or gravel pit and for various other uses can be issued by the building commissioner until the application is approved by the board of aldermen. Section 19. This last section of the ordinance was amended on January 24, 1935, so as to include ‘dumps, private or public,’ among the uses for which the approval of the board of aldermen is required. A public hearing before the board of aldermen upon the application for a use of land for any of the purposes mentioned in section 19 is provided by section 20. The board may prescribe the conditions and terms upon which a permit is to be issued, which may be changed from time to time, and no permit is to be granted that would result in substantial injury.

The board of health of Medford adopted a regulation prohibiting dumping without a permit from it, and subsequently an ordinance was enacted on December 20, 1938, giving to this board power to make rules and regulations for the control of all dumping of refuse and of all places used for the dumping of refuse, and requiring a permit from the board. The board on November 24, 1939, granted to the defendant in the first case, hereinafter called the defendant, a permit to dump on the parcel of land in question. The board of aldermen on February 6, 1945, requested the board of health to rescind this permit until the defendant had complied with the provisions of the zoning ordinance, which was in effect a request to revoke the permit because the defendant had not secured a permit from the building commissioner approved by the board of aldermen. The permit was revoked by the board of health of February 16, 1945, without any previous notice to the defendant and without a hearing solely on the ground that the defendant was using its land for a dump without having obtained this approval of the board of aldermen and without determining whether such use of the land constituted a nuisance or a menace to health or property. The board of aldermen has never approved the granting of any permit by the building commissioner for the use of the land as a dump; the commissioner has not issued any permit; and the defendant has never applied for any permit from him.

The judge found that the defendant's premises are low, marshy land, not now adaptable for ordinary use, that they are fit for a dump, and that dumping will make them more rentable for general land purposes and will increase their value. He also found that the defendant is conducting dumping on its land as a business, and that it has entered into a contract with the city of Somerville to dump house refuse collections on the land. The use made of the defendant's premises prior to the filing of the bill is fully described by the testimony. Oral evidence and also photographs indicated that rubbish and refuse, ashes, cans, garbage, paper bags and papers were deposited upon the defendant's land, together with coal slag, which is a good solid filling and was used to cover over the material that had been dumped. The city of Medford appointed a person to supervise the dumping and to see that all fires were out at four o'clock in the afternoon. The board of health on February 2, 1945, notified the defendant that, unless a portable water pipe line was installed within ten days, its permit would be cancelled, and requested that all dumping be done by the reclamation or ditch method thereby eliminating fires. This portable water pipe line was never installed.

The defendant contends that a zoning ordinance that requires it to secure a permit from the building commissioner, the granting of which must first be approved by the board of aldermen, in order to fill its land, which must be filled before it can be put to any valuable use, is an arbitrary and unreasonable interference with its rights. The Legislature by virtue of art. 60 of the Amendments to the Constitution of Massachusetts has enacted legislation authorizing cities and towns to make zoning ordinances and by-laws ‘for the purpose of promoting the health, safety, convenience, morals or welfare of [their] inhabitants,’ G.L.(Ter.Ed.) c. 40, § 25, as appearing in St.1933, c. 269, § 1, and they may for the aforesaid purposes by ordinance or by-law regulate the use of vacant land. A landowner, even though he may be deprived by these local enactments of a use of his land that would be more profitable to him, has no just ground of complaint unless he shows that the provisions of these ordinances or by-laws as applied to him and his property are plainly arbitrary and unreasonable and have no rational relation to any of the purposes mentioned in the statute or to any of the purposes for which the police power may be legitimately exercised. 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, 188, 48 S.Ct. 447, 72 L.Ed. 842;Wilbur v. Newton, 302 Mass. 38, 18 N.E.2d 365;Simon v. Needham, 311 Mass. 560, 42 N.E.2d 516, 141 A.L.R. 688;Pittsfield v. Oleksak, 313 Mass. 553, 47 N.E.2d 930;Foster v. Mayor of Beverly, 315 Mass. 567, 53 N.E.2d 693, 151 A.L.R. 737;Burlington v. Dunn, 318 Mass. 216, 61 N.E.2d 243.

The defendant has not been absolutely prohibited from filling its land. The city has gone no farther than to forbid it to fill the land by using it as a public or private dump unless it has secured a permit from the building commissioner that has been approved by the board of aldermen and also a permit from the board of health. It is open to the defendant to fill in the land in any manner it sees fit, other than by means of a public or private dump. It cannot use its land for the deposit or refuse collected from dwellings without a permit from and board of health. The nature of refuse of this character would seem to be a matter of common knowledge. The detrimental effect upon the inhabitants of a city, their properties and the public welfare from the maintenance of a dump for the deposit of such refuse would also seem to be clear. The use of land for the purpose of dumping refuse from dwellings is a use that, if not a nuisance, has such harmful tendencies that unless guarded against a nuisance is likely to result. The characteristics of dumps and the effects that are likely to result from their maintenance appear from our own decisions. Johnson v. Somerville, 195 Mass. 370, 81 N.E. 268, 10 L.R.A., N.S., 715; Saperstein v. Everett, 265 Mass. 195, 163 N.E. 757;Gosselin v. Northbridge, 296 Mass. 351, 5 N.E.2d 573;Maynary v. Carey Construction Co., 302 Mass. 530, 19 N.E.2d 304. Even if we lay aside considerations affecting the public health, as did the board of health in revoking the defendant's permit, we cannot disregard the nature of the material dumped, the probability of odors from burning material, the inconvenience from smoke and the danger of fire. Indeed, it would seem that the mere prevention of fire would justify the ordinance requiring the approval of the board of aldermen for the issuance of a permit by the building commissioner for use of this vacant land as site of a dump. Salem v. Maynes, 123 Mass. 372;Newton v. Belger, 143 Mass. 598, 10 N.E. 464;Commonwealth v. Badger, 243 Mass. 137, 137 N.E. 261;Selectmen of Saugus v. Mathey, 305 Mass. 184, 25 N.E.2d 162;Thomas Cusack Co. v. Chicago, 242 U.S....