Board of Selectmen of Wrentham v. Monson

• Decision Date: 18 April 1969
• Citation: 247 N.E.2d 364,355 Mass. 715
• Parties: BOARD OF SELECTMEN OF WRENTHAM v. Adolph J. MONSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 364

247 N.E.2d 364

355 Mass. 715

BOARD OF SELECTMEN OF WRENTHAM v. Adolph J. MONSON et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Jan. 6, 1969.

Decided April 18, 1969.

Howard C. Abbott, Town Counsel, for plaintiff.

Howard I. Rosen, Boston, for defendants.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, SPIEGEL and REARDON, JJ.

REARDON, Justice.

The plaintiff, the board of selectmen of Wrentham, seeks under G.L. c. 40A, § 22, as amended, in this bill of equity to enforce the zoning by-law of that town. The defendants owned land largely in Foxboro but partly in Wrentham. The injunction sought by the plaintiff would prohibit the defendants from using their Wrentham land 'for a mobile home park and for the parking of mobile homes or trailer coaches.' We refer to the findings of the judge.

The defendants purchased their land in 1962. There was then being conducted upon it a business 'involving the sale and use of mobile homes and trailers.' In 1963 a zoning by-law was enacted prohibiting the use of trailer homes anywhere in Wrentham although prior to that time trailers and mobile homes were allowed subject to the condition that such residences were not to be parked for more than thirty days. By letter to the plaintiff from the defendants' predecessors in title it was agreed that the Wrentham portion of the premises would be confined to the storage and use of trailers for not more than thirty days. The judge found ultimately that the defendants were entitled to employ their premises for the storage and use of trailers for not more than thirty days as a valid nonconforming use, and a decree was entered enjoining them from such a use for more than thirty days. The plaintiff has appealed.

It is the principal contention of the plaintiff that a proper nonconforming use in these circumstances must be based on compliance with the provisions of G.L. c. 140, §§ 32A to 32L, which require a license from a local board of health which the defendants never obtained. They cite Yokley, Zoning Law and Practice (3d ed.) c. XVI, § 16--2: 'For a nonconforming use of property to have continued recognition, it must be a lawful use of property in existence prior to the enactment of a zoning regulation. Thus, a prior use of an unauthorized character or a business or activity carried on in violation of the law may not be continued as a nonconforming use.' See Eggert v. Board of Appeals of Chicago, 29 Ill.2d 591, 195 N.E.2d 164. The issue for our determination is whether failure to comply with license regulations destroys the right to continue an otherwise valid nonconforming use.

Massachusetts has not decided this issue, and other jurisdictions are divided. A case supporting the defendants' position is Scavone v. Mayor and Council of Borough of Totowa, 49 N.Y.Super. 423, 140 A.2d 238, where the nonconforming use of a used car lot was held not vitiated by the fact that the license of the owner was not properly renewed. It was there stated, at pages 427--428, 140 A.2d at page 241, 'While it is recognized that the spirit of the zoning statute and the interpretive cases is restrictive of nonconforming uses, nevertheless the owner of property is entitled to stand on the statute without being made to suffer erosion of his rights as a nonconforming user under the excuse of serving the public policy represented by regulatory enactments of quite different significance for the enforcement of which appropriate sanctions are available.' ¹ Cases which tend to support the plaintiff include Arsenault v. Keene, 104 N.H. 356, 187 A.2d 60, and Melton v. San Pablo, 252 Cal.App.2d 794, 804--805, 61 Cal.Rptr....