Brett v. Bldg. Comm'r of Brookline

Citation145 N.E. 269,250 Mass. 73
Decision Date18 October 1924
CourtUnited States State Supreme Judicial Court of Massachusetts


Report from Supreme Judicial Court, Norfolk County.

Petitions by Ossian D. Brett and Lester L. Brett, respectively, for writs of certiorari to quash proceedings of Ernest Lyon, as Building Commissioner of the Town of Brookline, in revoking building permits issued to plaintiff. On report. Petitions dismissed.

A. J. and J. A. Daly, of Boston (J. A. Daly, of Boston, of counsel), for petitioners.

Ralph A. Stewart and Charles O. Pengra, both of Boston, for respondent.


There are two petitions for writs of certiorari to quash the proceedings of the defendant as building commissioner of the town of Brookline in revoking building permits issued to the plaintiffs. The salient facts are that the town of Brookline adopted a zoning by-law, which took effect in June, 1922. That by-law may be presumed to have been adopted pursuant to article 60 of the Amendments to the Constitution, and G. L. c. 40, §§ 25-30. By that by-law the territory of the town was divided in three districts. Without noting ancillary terms or exceptions and modifications, it thereby was in general provided that in district 1 buildings might be erected and used for ‘general business purposes,’ in district 2, for ‘store purposes' and in district 3, for ‘residence purposes.’In district 3 it was expressly provided that dwellings for one or more families might be used and erected. On March 18, 1924, at a town meeting an amendment was adopted to the zoning by-law, redistricting the town to the extent of adding a new district, 4, designated as ‘single family residence purposes,’ prohibiting the use and construction of any building therein except for ‘a detached one-family dwelling,’ a church, school, club and other kinds of accessory or incidental buildings not here material. This amendment took effect on April 4, 1924. No question is raised on this record as to the regularity and sufficiency of the steps taken with respect to the adoption of this amendment.

The report does not set out in detail the characteristics of the town of Brookline, as was rightly and fully done in Spector v. Building Inspector of Milton, 248 Mass. --, 145 N. E. 265. Geographically, Brookline is adjacent to and almost surrounded by Boston. Every presumption is to be indulged in favor of the by-law. So far as these characteristics may be thought to be connected with adaptability of the town of Brookline to residence uses, they may be assumed to exist.

The petitioner Lester L. Brett was the owner, prior to the adoption of the amendment to the zoning by-law establishing district 4, of three lots of land within district 3 of the first zoning by-law, which were within district 4 as established by the amendment. Prior also to the adoption of that amendment he applied for permits to build on each of two of these lots and the petitioner Ossian D. Brett applied for a permit to build on the other of these lots a dwelling house designed for two families. There was compliance with all the then existing requirements of statutes and by-laws with respect to such applications. Permits to erect such two-family dwelling houses were granted in accordance with the applications on March 4, 1924. Each petitioner made certain contracts toward the construction of these houses and work thereon had actually begun. On one lot only some slight excavation had been done prior to April 4, 1924. On each of the other two lots, the batter boards had been erected and the engineering work of designating the lines of the house and the height of the foundation had been done; on one of these some work of excavation had been done and on the other foundation trenches had been dug to the full depth and permits to pour in cement for the foundations had been obtained. By letters dated April 8, 1924, and received by the petitioners on April 9, 1924, the respondent without notice or hearing revoked the permits previously issued to the petitioner, on the ground that the erection of the buildings thereby authorized would be in violation of the amendment of the zoning by-law effective on April 4, 1924.

By operation of the original zoning by-law important limitations were imposed on the use of much real estate within the boundaries of Brookline. That was a valid exercise of the police power. It has been held in the cases of Building Inspector of Lowell v. Stocklosa, 248 Mass. --, N. E. 262, and Spector v. Building Inspector of Milton, 248 Mass. --, 145 N. E. 265, this day decided, that article 60 of the Amendment of the Constitution of Massachusetts is not in conflict with the Constitution of the United States, that the provisions of G. L. c. 40, §§ 25-30, enacted pursuant to that amendment are not violative of any provision of the Constitution of this commonwealth or of the Constitution of the United States and that zoning ordinances or by-laws reasonable in their terms are valid whereby the territory of a municipality is divided into districts for trade, business, and manufacture and other districts wholly for residence from which trade, business and manufacture as commonly understood are excluded. See Opinion of Justices, 234 Mass. 597, 127 N. E. 525. These decisions and the principles there stated are accepted as the basis for the determination of the cases at bar. It follows as the inevitable consequence of these decisions that the zoning by-law of Brookline as originally adopted, dividing its territory into the three districts hereinbefore described, was valid. It was not violative of any right guaranteed by the Constitution of the United States or of this commonwealth and was within the scope of G. L. c. 40, §§ 25-30, conferring upon towns the power to pass zoning by-laws.

The question remains whether the amendment to the by-law, establishing a new zone within which buildings shall only be used or constructed for single-family residence purposes, is valid. We assume that this provision was not intended to apply to buildings existing at the time of the adoption of the by-law and then already put to uses different from those authorized by the by-law. G. L. c. 40, § 29.

[3] The right to enjoy life and liberty and to acquire, possess and protect property are secured to every one under the Constitution of Massachusetts and under the Constitution of the United States. These guaranties include the right to own land and to use and improve it according to the owner's conceptions of pleasure, comfort or profit, and of the exercise of liberty and the pursuit of happiness. Wyeth v. Cambridge Board of Health, 200 Mass. 474, 86 N. E. 925,23 L. R. A. (N. S.) 147, 128 Am. St. Rep. 439. These rights are in general subject to the exercise of the police power. They are not absolute and unqualified. Liberty may be thought the greatest of all rights. But liberty does not mean unrestricted license to pursue the mandates of one's own will. Liberty is regulated by law to the end that there may be equal enjoyment of its blessings by all.

‘Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.’ Chicago, Burlington & Quincy Railway v. McGuire, 219 U. S. 549, 567, 31 Sup. Ct. 259, 262 (55 L. Ed. 328);Crowley v. Christensen, 137 U. S. 86, 89, 11 Sup. Ct. 13, 34 L. Ed. 620;Jacobson v. Massachusetts, 197 U. S. 11, 26, 25 Sup. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765.

The right to own and enjoy property is no more sacred than liberty. It stands on no firmer foundation than liberty. The police power in its reasonable exercise extends to ownership of land as well as to the enjoyment of liberty. Commonwealth v. Badger, 243 Mass. 137, 141, 137 N. E. 261, and cases there collected. The police power is recognized as an attribute of government. It may be put forth in any reasonable way in behalf of the public health, the public morals, the public safety and, when defined with some strictness so as not to include mere expediency, the public welfare. Commonwealth v. Strauss, 191 Mass. 545, 550, 78 N. E. 136,11 L. R. A. (N. S.) 968,6 Ann. Cas. 842.

In Lawton v. Steele, 152 U. S. 133, 137, 14 Sup. Ct. 499, 501 (38 L. Ed. 385) it was said:

‘To justify the state in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The Legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the courts.’

Restriction of the use of land to buildings each to be occupied as a residence for a single family may be viewed at least in two aspects. It may be regarded as preventive of fire. It seems to us manifest that, other circumstances being the same, there is less danger of a building becoming ignited if occupied by one family than...

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102 cases
  • Goldman v. Crowther
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    ...and to require such buildings to conform to regulations as to their construction and use. In Brett v. Building Commissioner of Brookline, 145 N. E. 269, decided the same day, it was held that although Brett had been granted a permit by the proper authorities to build "two family" houses on ......
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    ...Inspector v. Stoklosa (Mass.) 145 N. E. 262;Spector v. Building Inspector (Mass.) 145 N. E. 265;Brett v. Building Commissioner (Mass.) 145 N. E. 269;State v. Harper, 182 Wis. 148, 196 N. W. 451, 33 A. L. R. 269;Holzbauer v. Ritter, 184 Wis. 35, 198 N. W. 852;Des Moines v. Manhattan Oil Co.,......
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2 books & journal articles
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