Cochran v. Roemer

• Decision Date: 17 September 1934
• Citation: 192 N.E. 58,287 Mass. 500
• Parties: COCHRAN et al. v. ROEMER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 500

192 N.E. 58

COCHRAN et al.

v.ROEMER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 17, 1934.

Report from Supreme Judicial Court, Suffolk County.

Petition by Franklin H. Cochran and others against Edward W. Roemer and others for a writ of mandamus, heard by a single justice who reported the case to the Supreme Judicial Court.

Petition dismissed.F. R. Walsh and T. A. Cronin, both of Boston, for petitioners.

T. Hunt and J. C. Reilly, both of Boston, for New England Fuel & Transp. Co.

H. M. Pakulski, Asst. Corp. Counsel, of Boston, for City of Boston.

RUGG, Chief Justice.

This is a petition for a writ of mandamus. The petitioners own properties in the immediate neighborhood of land on which it is alleged that certain structures have been erected in violation of the Boston zoning law by the New England Fuel and Transportation Company, a voluntary association under a declaration of trust. That association has been admitted on its own motion as a party respondent. It has filed an answer and participated in the trial and argument. G. L. (Ter. Ed.) c. 249, § 5; Siegemund v. Building Commissioner of City of Boston, 259 Mass. 329, 335, 156 N. E. 852. Hereafter, it will be referred to as the fuel company. The prayers of the petition are that the respondent, the building commissioner of Boston, be directed to revoke permits granted by him to the fuel company for erection of buildings on the land, to institute proceedings to restrain the fuel company from maintaining its buildings and conducting a wholesale business, and to enforce otherwise the provisions of the zoning law against the fuel company.

An auditor was appointed, whose report contains a recital of the facts in considerable detail. The parties also filed a statement of agreed facts in addition to and in slight alteration of facts found by the auditor. All these facts were found to be true by the single justice, who after hearing found additional facts. He then reported the case for determination upon the pleadings, the auditor's report, the statement of agreed facts, and the facts found by him.

On a report in this form, no exercise of discretion is involved. The question presented is whether upon all the facts found and upon the pleadings the writ of mandamus ought to issue as matter of law. Hunter v. School Committee of Cambridge, 244 Mass. 296, 138 N. E. 382;School Committee of City of Lowell v. Mayor of Lowell, 265 Mass. 353, 354, 164 N. E. 91, and cases cited; Shawmut Mills v. Board of Assessors of City of Fall River, 271 Mass. 358, 171 N. E. 434.

The facts summarily stated are these: The properties of the several petitioners are in a district zoned for residential purposes only, except that the rear of one lot is in a district zoned chiefly for local business. The land of the fuel company concerned in the case is on Ballou avenue in that part of Boston known as Dorchester. It is situated in a district zoned for local retail business. It contains forty-two thousand three hundred eighty-five square feet. It lies in the shadow of the bridge which carries Norfolk street, a main highway of travel from Boston to the south, across the tracks of the Midland Division of the New York, New Haven and Hartford Railroad and is lower than the railroad and still lower than the highway. Norfolk street in the neighborhood of the bridge is given over to business. Ballou avenue is generally residential. On the northerly side of the land is a vacant lot, and beyond that are three-family houses; on the easterly side is the railroad location; on the southerly side is one house within a few feet, and beyond, a thickly settled locality; on the westerly side is a rough vacant lot of about an acre given over to junk, refuse, underbrush and weeds, and, further away, there are small dwellings. On this land of the fuel company, from 1918 to 1929, one Berzon conducted a small retail coal and coke business amounting to seventy-five hundred to eight thousand tons of coal per year. The coal for the most part was stored in the open and was loaded on trucks by a portable loading machine. There was no flooring over the dirt. There were a small office building and a large rough shed divided into bins; where various sizes of anthracite coal were stored. On the northerly side of the lot was an old fence made up mostly of worn out doors and refuse lumber. On the Ballou avenue side was a wooden fence in disrepair. The entire plant was untidy in appearance and in a disorderly condition, and looked a good deal like the dump across the street. It was much dustier and dirtier than it is as now operated by the fuel company. Berzon conducted in general a small local business, except that he made deliveries to customers who had lived in the district but had moved away to other cities and towns and still traded with him. Occasionally he sold coal to other dealers for cash or credit at a price lower than to the retail trade. The volume of this business in comparison with his retail trade is not shown.

The fuel company manufactures coke and its by-productsat its plant in Everett. The fuel company bought the land and the business of Berzon in 1929. It made a complete change. The only part of the old structures now upon the land is the former office building, moved to a corner of the lot and used for petty storage and a rest room for chauffeurs. The fuel company has erected a large concrete structure, placed practically in the middle of the area, consisting of six silos, built of reinforced concrete each of an outside diameter of twenty-two feet. Most of the land is covered with a concrete slab and the silos rise to approximately eighty-three feet above the concrete yard. Between the silos there is a little space, perhaps ten feet, and at the top of the structures and going across the top of the silos is what might be called a long corridor. These silos stand parallel with the railroad. There are two railroad sidings, both parallel with the main tracks. One siding is entirely upon land of the railroad company. The other is upon land of the fuel company. An enclosed pit is under a portion of one of the tracks, from which by a hoisting mechanism coke is lifted in a metallic bucket holding about two tons to the top of the several silos. The bucket then descends inside the silos to the surface of coke already there and is automatically discharged. In this way a carload may be transferred in about forty-five minutes. Driveways are constructed through the bottom of each silo with openings so that it is possible to load twelve trucks at one time, six on each side of the silos. There are devices for sifting the coke inside the silos so that it goes through chutes into trucks as free from dust as is possible. The plant represents the most modern construction for compact storage of coke and service to trucks for distribution. On the top of the silos is a ‘large Neon light sign’ announcing in red the name of the fuel company ‘in six-foot letters.’ The fuel company sells its coke throughout New England. A very large proportion is sold in Boston and the metropolitan area. For the most part it sells coke at retail and delivers it within a radius of fifteen miles from Boston. Before the establishment of the plant in question, its sales to domestic consumers in Dorchester were delivered by trucks from the Everett plant, and those to dealers by railroad. It made plans for establishing the Dorchester plant in 1929. Requisites for a suitable site were that it must be reached by railroad within practically five miles from the South Station in order to be within the switching limit, land about one acre in area of long and narrow dimensions in order to permit deliveries from the railroad, and a location near the center of the territory to be served by distribution from it. The land in question was the only site found after extensive search to fulfill these requirements. The investment made in the plant is a trifle more than $240,000. If obliged to abandon this site and raze the plant, the salvage to the fuel company would not exceed $25,000, including the value of the land. The fuel company, before buying the land, showed its plans to the building commissioner of Boston in conference with one in charge of the zoning division, and explained what it proposed to do and the grounds for such action, and was told that there was no reason why the necessary permits would not be granted. The permit issued by the building commissioner was for building coal elevators. Coal requires stronger construction on account of its extra weight, so the fuel company desired elevators suitable for coal in the event it needed so to use them, although its initial purpose was to use them for coke. The elevators are suitable and usable for both. Coke is lighter and has less dust and dirt than coal. The noise of loading and unloading coke is less than that of coal. While there is some dust attendant upon the operation of the silos, the amount is not more than might be expected in the immediate neighborhood of a railroad track. The auditor was unable to find how much was due to each cause. A great volume of retail and wholesale business has been conducted by the fuel company at this location. Berzon had two or at most three trucks, but there have been occasions under the operation by the fuel company when twenty-eight trucks have been...