Caires v. Bldg. Com'r of Hingham

Citation83 N.E.2d 550,323 Mass. 589
Decision Date05 January 1949
CourtUnited States State Supreme Judicial Court of Massachusetts


Appeal from Superior Court, Plymouth County; Warner Judge.

Mandamus proceeding by James J. Caires and others against the Building Commissioner of Hingham. From a judgment ordering the commissioner to revoke two building permits, the commissioner appeals.

Reversed with direction to dismiss the petition.


H. E. Magnuson, of Boston, for petitioners.

A. E. Whittemore, of Boston, and W. G. Howland, of Bedford, for respondent.

RONAN, Justice.

This controversy centers about the validity of an amendment to a zoning by-law of the town of Hingham. It comes here by an appeal by the respondent under G.L.(Ter.Ed.) c. 213, § 1D, inserted by St.1943, c. 374, § 4 from a judgment, entered in the Superior Court upon a petition for a writ of mandamus, ordering him to revoke two building permits granted by him subsequent to the amendment for the erection of commercial structures upon a parcel of land which, previous to the amendment, was located in a district zoned for residential purposes.

The appeal widens the scope of review previously to be had in mandamus proceedings and puts us in the same position as that of the trial judge in so far as that can be accomplished by a printed record, and enables us, in accordance with the principles governing appeals in equity, to reach our own conclusions as to matters of law, fact and discretion except that we may not reverse findings of fact made on oral testimony unless they are shown to be plainly wrong. Henderson v. Mayor of Medford, 321 Mass. 732, 75 N.E.2d 642; Hill v. Trustees of Glenwood Cemetery, 323 Mass., 388, 82 N.E.2d 238. The proper decision in the present case rests not so much upon conflicting oral testimony as upon the existing layout of the town, the physical characteristics of the various sections of the land which comprises its territory, the suitability of particular sections for particular uses, the orderly development of different tracts in the public interest, and all those other objective aspects which furnish the bases for resort to a zoning by-law for the public benefit.

The judge found upon all the evidence that ‘the adoption of the by-law was not within the exercise of statutory and constitutional powers' and that the by-law was invalid. The findings made by the trial judge need not be narrated. In the main they were adverse to the respondent. All of them, in so far as they were pertinent, have been considered and given the weight they were properly entitled to in the light of the entire evidence.

Hingham is an ancient typical town devoted mainly to residences, with its comparatively small centers of shops and stores for the convenience of its inhabitants, with somewhat restricted railroad accommodations for those who commute to and from Boston, and with a depot and a small freight yard adjoining the depot for the reception of freight. The principal business district with its stores and shops, the depot, and the freight yard are located in the vicinity of Hingham Square. The town in 1941 adopted a zoning by-law which placed most of its territory in residential districts and the remainder in a few business districts. Other business districts were added by subsequent amendments. In the summer of 1946, one Robinson, who conducted a hay and grain business near the center of the town, desired to secure a location adjacent to a siding where goods could be unloaded from the car to the warehouse. The two short sidings in the freight yard were not available for the construction of a warehouse next to the track, the easterly one not being adaptable and the land adjacent to the westerly one being under lease to a coal company, although not in actual use by the lessee. It was problematical at least whether any siding privilege could be secured on any reasonable terms in the business section of the town. Robinson desired to build a warehouse along the only other existing siding in the town. This siding was upon a parcel of land known as Nantasket Junction. This parcel was owned by a railroad and was situated in a residential district although used for a railroad yard, a nonconforming use, as it had been for many years previous to the adoption of any zoning by-law by the town. Robinson, having unsuccessfully attempted to secure a variance under the then existing by-law, had an article inserted in the town warrant, and advocated the passage of the amendment in question by newspaper advertisements and pamphlets. He was later joined in these efforts by one McNulty, who desired to establish a lumber yard upon the railroad premises. After the amendment was adopted by the voters and approved by the Attorney General, the respondent issued a permit to Robinson to construct a warehouse and another to McNulty to construct a building to be used in conjunction with a lumber yard, and it is these two permits which the petitioners seek to have revoked.

The locus is situated in the easterly portion of the town, about nine tenths of a mile from the nearest business section, and has an area of a little over ten acres. It is triangular in shape, covering a three branch track layout of the railroad. The base of this triangle is the main track running to Greenbush and extends from Summer Street on the west to Kilby Street on the east a distance of about one thousand three hundred fifty feet. At Summer Street a track branches off from the main line and runs in a northeasterly direction toward the apex of this triangular piece of land, where it is joined by a branch track which runs in a northerly direction after branching off from the main track near Kilby Street. The track north of the northerly junction was removed when the Nantasket line was discontinued ten years ago. Westerly of the westerly branch is a spur track, and Robinson's warehouse is located on the southeasterly side of this track and McNulty's lumber shed is located on the northwesterly side of this track. The judge made detailed findings as to the character of the land included in the locus, and found that not only had Robinson and McNulty secured the best sites but that because of the topography of the rest of the locus there was left but little other land then in condition for the erection of any buildings adjacent to a track in the entire locus. At the time the by-law was adopted the main line was used for regular service to and from Greenbush, and this line together with the two branch tracks was used daily as a turn around for a passenger train and for the same purpose several times a week for a freight train. The west branch was used principally for the ‘spotting’ of an express car, and the spur track was used twelve to fifteen times a year for the unloading of freight cars.

The ultimate and sole question presented for decision in this case was the power of the inhabitants to enact the amendment. All other matters contained in the voluminous report of the evidence are immaterial excepting only as they relate to the authority of the inhabitants in the then existing circumstances to do what they purported to do. The power to make a division of the town into various districts and to designate the purposes for which land in those districts may be used and occupied and to exclude any other purposes rests for its justification on the police power, and that power is to be asserted only if the public health, the public safety and the public welfare, as those terms are fairly broadly construed, will be thereby promoted and protected. A zoning by-law will be sustained unless it is shown that there is no substantial relation between it and the furtherance of any of the general objects just mentioned. Nectow v. Cambridge, 277 U.S. 183,44 S.Ct. 477,72 L.Ed. 842;Pittsfield v. Oleksak, 313 Mass. 553, 555, 47 N.E.2d 930;Town of Burlington v. Dunn, 318 Mass. 216, 221, 61 N.E.2d 243;Building Commissioner of Medford v. C. & H. Co., 319 Mass. 273, 279, 65 N.E.2d 537.

These general limitations upon the exercise of the police power are supplementedin the case of zoning regulations by further restrictions imposed by the Legislature in granting authority to cities and towns to enact such regulations. The statute G.L.(Ter.Ed.) c. 40, § 25, as appearing in St. 1933, c. 269, § 1, after recognizing the general principle that zoning regulations to be valid must come within the scope of the police power, which this statute does by expressly providing that such regulations may be enacted ‘For the purpose of promoting the health, safety convenience, morals, or welfare’ of the inhabitants of a city or town, provides that regulations shall be designed to lessen congestion in streets, to secure safety from fire, panic or other...

To continue reading

Request your trial
58 cases
  • Atherton v. Selectmen of Bourne
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 4, 1958
    ...Mass. 291, 65 N.E.2d 552; Smith v. Board of Appeals of Fall River, 319 Mass. 341, 343-344, 65 N.E.2d 547; Caires v. Building Commissioner of Hingham, 323 Mass. 589, 594, 83 N.E.2d 550; 122 Main Street Corp. v. City of Brockton, 323 Mass. 646, 648, 84 N.E.2d 13, 8 A.L.R.2d 955; Barney & Care......
  • W.R. Grace & Co. v. Cambridge City Council
    • United States
    • Appeals Court of Massachusetts
    • November 25, 2002 no substantial relation between it and the furtherance of any of the general objects just mentioned." Caires v. Building Commr. of Hingham, 323 Mass. 589, 593, 83 N.E.2d 550 (1949). Every presumption is made in favor of the by-law, and, if its reasonableness is fairly it will be sustaine......
  • John Donnelly & Sons, Inc. v. Outdoor Advertising Bd.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • December 15, 1975
    ...the enabling statute. Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220, 228, 202 N.E.2d 777 (1964); Caires v. Building Comm'r of Hingham, 323 Mass. 589, 594, 83 N.E.2d 550 (1949). In the present case, the specific question is whether the local regulations are 'inconsistent with princip......
  • Others 1 v. Dep't Of Conservation, SJC-10626.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 26, 2010
    ...police power extends to the regulation of land use for the public health, safety, or welfare. See Caires v. Building Commr. of Hingham, 323 Mass. 589, 593-595, 83 N.E.2d 550 (1949). 12Recently, courts have considered also the claim of a “partial regulatory taking,” a moratorium on building ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT