City of Everett v. Capitol Motor Transp. Co.

• Decision Date: 14 September 1953
• Citation: 114 N.E.2d 547,330 Mass. 417
• Parties: COTY OF EVERETT v. CAPITOL MOTOR TRANSP. CO., Inc., et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 547

114 N.E.2d 547

330 Mass. 417

COTY OF EVERETT v. CAPITOL MOTOR TRANSP. CO., Inc., et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 8, 1953.

Decided Sept. 14, 1953.

Harris E. Albert, City Sol., Everett, for plaintiff.

Albert E. Morris, Everett, Joseph Fisher, Boston, for defendants.

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

QUA, Chief Justice.

This bill is brought by the city against the above named defendant described as the lessee of premises at 290-296 Main Street and against another corporation described as the owner of the land and buildings at the same address and an individual described as an officer in each of the corporations and as the 'lessor' of the premises. The material allegation is that the defendants are using the premises as a 'freight terminal' for trucks in violation of the zoning ordinance of the city. The prayers are for injunctive relief.

The record was prepared under the new Rule 2 of the Rules for the Regulation of Practice before the Full Court, 1952, 328 Mass. 693, by means of designations and counter designations of portions of the transcript of the evidence and of condensations of other portions. It seems advisable to repeat here what has in substance been said before, that where designated portions of a transcript of evidence are included in accordance with this rule, the record should show the names of the witnesses, by what party they were called, and whether the evidence was given on direct or cross-examination, and also that designated portions of the transcript should as far as practicable be printed in consecutive order as the evidence was given in court so as to avoid the fragmentation of the record which has been one of the chief objections to devices designed to reduce the bulk of appeal papers. Donahue v. Kenney, 330 Mass. 9, 110 N.E.2d 846; Cohen v. Santoianni, 330 Mass. 187, 190, 112 N.E.2d 267.

Certain facts appear not to be in dispute. The building on the defendants' land occupies the greater part of the lot and is approximately 140 feet long and 150 feet deep from the street to the rear. In the evidence it is called a 'garage.' It was erected 'under a permit * * * for stores and a garage.' Inside the building along the whole length of the rear wall there is a 'loading platform' 4 feet high and 20 feet wide. Connecting with this platform is another similar platform 18 to 19 feet wide along one of the side walls. Under the zoning ordinance the line between an 'Apartment District' and a 'Business District' runs through the building in such a manner as to leave about a third of it, including all of the rear platform and part of the side platform, in the apartment district, from which business is excluded. The defendants admitted in open court that the premises were being used as a freight terminal in that part of the rear of the building where the platforms are and on land zoned for apartments. The permit for the erection of the building was dated February 24, 1926. The zoning ordinance went into effect on August 20, 1926. Section 3(1) of the ordinance prohibits the use or construction of buildings except in conformity therewith. Section 3(2) reads, 'The provisions of this Ordinance shall not apply to any existing buildings or structures, nor to the existing use of any building, structure or premises as long as they remain unchanged.'

The trial judge, in dismissing the bill, made three principal findings of fact: (1) 'that the provisions of the Zoning ordinance do not apply to these premises they having remained substantially unchanged since the building was first erected sometime prior to the effective date of the zoning ordinance which was August 20, 1926 when the ordinance was published in accordance with Section 15 of the ordinance'; (2) 'that even if the said ordinance does apply, there has been no violation thereof by any of the respondents'; and (3) 'that even if said ordinance does apply and even if there were a violation thereof by the respondents that the petitioner is guilty of laches it having delayed, without excuse, an unconscionable length of time in seeking relief.'

The designated evidence, as appearing in the record, is sketchy and more or less fragmentary in character and possibly does not adequately reproduce the pertinent evidence received at the hearing. Nevertheless it represents what the parties were content to rely upon for the purposes of this appeal, and must now be considered by us as if it were all of the evidence introduced. Cohen v. Santoianni, 330 Mass. 187, 190, 112 N.E.2d 267. For reasons now to be stated we do not see how the evidence support the findings of the judge.

We find no evidence that the building was in fact erected before August 20, 1926, when the ordinance took effect. The permit for the erection of the building was issued on February 24, 1926, and there was evidence that it was possible to erect such a building within four months, but there was no evidence when construction began or that the building was in fact erected before August 20. Moreover, even if the building itself was erected before that date, and even if it remained substantially unchanged afterwards, those facts would not be sufficient to establish a use existing before the ordinance took...