City of Pittsfield v. Oleksak
| Decision Date | 01 April 1943 |
| Citation | 47 N.E.2d 930,313 Mass. 553 |
| Parties | CITY OF PITTSFIELD v. ANDREW T. OLEKSAK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
December 10, 1942.
Present: FIELD, C.
J., DONAHUE, QUA DOLAN, & RONAN, JJ.
Zoning.
Preventing the owner of a certain farm of three hundred twenty-eight acres of which one hundred fifteen acres were in timber, from using a portable mill and portable buildings for about three months to cut matured timber because the tract was in a district in a city where by a zoning ordinance the erection of a building or structure for an industrial or commercial purpose was precluded, would have been unreasonable and unconstitutional where it appeared that the district in question comprised about eight square miles largely of woodland with only twenty-five or thirty houses, and that the owner's operations would be neither a public nor a private nuisance would not affect nor concern the public health, safety morals, welfare or convenience, would not detract from nor injure the natural beauty of the general area and would not in any way affect the amenities of the city.
BILL IN EQUITY, filed in the Superior Court on June 27, 1942. The suit was heard by Hammond, J. The plaintiff alleged exceptions to certain rulings by the trial judge and also appealed from a final decree dismissing the bill.
J. M. Rosenthal, City Solicitor, for the plaintiff. F. M. Myers, for the defendant.
The bill prays for an injunction restraining the defendant from carrying on the business of cutting and sawing or removing standing timber on the defendant's promises known as "Westbrook Farm" in Pittsfield in alleged violation of the city's zoning ordinance, which includes Westbrook Farm in a "Residence `A'" district, and which provides that in such district "no building or structure shall be erected which is intended or designed to be used, in whole or in part, for any industrial, manufacturing, trade or commercial purpose . . .," with exceptions not material to the grounds on which this decision rests.
Material detailed findings of the trial judge are these: Westbrook Farm contains three hundred twenty-eight acres, upon which are a farm house and two barns situated about three and one half miles westerly of the city hall. The property is located on the westerly side of a highway known as Cascade Street. An old highway known as Brick House Mountain Road runs through it, but a portion of this road west of the farm has been abandoned. When the defendant acquired the farm in 1942 about one hundred fifteen acres were in timber, well matured and ready to be harvested. Nearly all the rest was grass land and pasture. The defendant, a lumber dealer, purchased the farm for the timber. Soon afterwards he moved in a portable sawmill, without shelter or roof, which he moves from place to place, three small portable shanties accommodating five wood choppers, and a portable lean-to for two horse. Normally the time required for harvesting the timber crop which it is desirable to cut would be about three months. The defendant has already cut about three hundred twenty thousand board feet. There remain about seven hundred thousand feet of white pine and about the same amount of hard wood. A large part of the hard wood has reached the stage where it will not further improve and will begin to diminish in value if not harvested within four or five years. The "Residence `A'" district in question comprises about eight square miles lying westerly of Lake Onota and extending westerly to the Hancock town line. In the entire area there are only about twenty-five or thirty houses, all farm houses, except six or eight used as summer residences. More than three quarters of the area are covered with wood and timber in various stages of growth. The Pittsfield State Forest adjoins part of Westbrook Farm on the north, and the Pittsfield city farm adjoins a part on the south. One Bassett, whose land also adjoins the farm, has long maintained a small sawmill where he cuts his own timber and does "custom sawing" for nearby landowners.
The trial judge also made these general findings: The work of cutting and sawing being done by the defendant is not in any sense a noxious business and does not constitute a fire hazard. It is not a public or a private nuisance. It does not in any way affect or concern the health, safety, morals, or welfare of any individual living within the eight square miles. It does not affect or concern the public health, safety, morals, welfare, or convenience. The situation of the farm is such that the cutting that has been done is not noticeable from the main travelled roads. No permanent scar will be made on the landscape. If the entire tract is cut over, it will not detract from or injure the natural beauty of this general area. The cutting of the mature timber will not in...
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