Cohen v. City of Lynn

• Decision Date: 08 March 1956
• Citation: 132 N.E.2d 664,333 Mass. 699
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Ida Sarene COHEN v. CITY OF LYNN and another.

Page 664

132 N.E.2d 664

333 Mass. 699

Ida Sarene COHEN v. CITY OF LYNN and another.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 8, 1956.

Decided March 8, 1956.

James W. Santry, Lynn (Nathan Tobin, Lynn, with him), for petitioner.

Morris Michelson, Boston, for respondent and another.

Before QUA, C. J., and RONAN, SPALDING, COUNIHAN and WHITTEMORE, JJ.

WHITTEMORE, Justice.

This petition, filed June 8, 1953, is brought in the Land Court under G.L. (Ter.Ed.) c. 240, § 14A, and c. 185, § 1(j 1/2), both inserted by St.1934, c. 263, to determine the validity of a 1946 amendment to the zoning ordinance of the city of Lyunn which reclassified a block of land on Lynn Shore Drive, in which the petitioner's residence stands, from a general residence district to a restricted type apartment district. The intervener is the owner of much of the land in the block and is the holder of a permit to erect an apartment house on this land. According to the findings the intervener stated in open court that he desires to have his rights established.

The findings include, 'I find as a fact that the placing of petitioner's and intervener's land in a restricted apartment zone and use is not indispensable to and does not promote the health, safety, convenience and general welfare of the city of Lynn.' 'The effect * * * is to single out one block within an area of essentially the same characteristics and in the same use district and to impose upon this block less onerous restrictions than those imposed upon the remaining portion of what is really the same zoning district (a condition sometimes referred to as 'spot zoning').'

Subsidiary findings include the following (summarized): The area is more like a single residence than a general residence area; most of the two family houses in the area do not appear such from the street; the location is ideal for those wishing the benefits of an excellent beach, nearness to the ocean, and living not too far from a business area; there has been no substantial change in locus and surrounding area over the years and except for the building of the Nahant Garden Apartments on land across the street from the locus and rezoned at the same time and in the same way, the change has been decidedly toward single family homes; the evidence that the new zone would lessen the fire hazard is not substantial and, on the contrary, the increase in the number of families with apartments increases street occupancy by automobiles and the new zoning permits third class construction of the house if the house is of three stories or less; the planning consultant, who favored the change and favored more restricted apartment areas than Lynn now has, had a city-wide view as to its justification, and his impelling reason seemed 'to be demand and keeping the city from shrinking in population rather than the existing status of the locus; he depended on a trend rather than any existing substantial or actual change in the zone'; 'I find no substantial reason for the restricted apartment zoning in locus; it cannot be said to be reasonable or necessary to uphold the integrity of the zoning system as existing in the city'; rather than advance public interest it unquestionably increases the population materially, would add to street congestion, induce taller structures, and not preserve the character of the property.

'On an appeal from a decision of the Land Court, the findings of fact appearing in the decision * * * must ordinarily be accepted as final.' Barney & Carey Co. v. Town of Milton, 324 Mass. 440, 449, 87 N.E.2d 9, 15. We construe the judge's ultimate conclusions, although expressed as 'findings,' to include the rulings that the amendment of 1946 exceeded the power of the city council because as matter of law it was spot zoning and could not reasonably have been found by the council to pomote the health, safety, convenience, and general welfare of the city, and hence was outside the basic zoning purpose as stated in the statute. The judge, in granting and denying requests, made rulings consistent with the foregoing. The intervener and the city of Lynn took exception to the rulings and to the 'decision and determination of the court,' namely, that the subject 1946 amendment ordinance 'is invalid with respect to said petitioner's and intervener's land and of ano force or effect in reference thereto.' We hold that the facts found do not justify the judge's rulings and determination.

The block in question is bounded southerly by Lynn Shore Drive, easterly by Wave Street, northerly by Ocean Street, and westerly by Nahant Street, and contains in round figures 330,000 square feet of land. At the same meeting at which this block was rezoned another parcel directly opposite it across Nahant Street and containing in round figures 177,000 square feet (now the site of the Nahant Garden Apartments) was also rezoned from a general residence district to a restricted type apartment house district. The total area thus rezoned contained something over 507,000 square feet.

The rezoned area is near the westerly boundary of the general residence district as it existed prior to the subject 1946 amendments. The extension of Lynn Shore Drive to the west beyond Nahant Street for three short blocks is called Beach Road. Except for the corner lot the entire frontage on Beach Road is in an apartment house district. Directly to the west of the Nahant Garden Apartments site there was a general residence district for a distance approximating the frontage of the subject locus on Ocean Street, but the area farther to the west beyond this general residence area was zoned for apartments. The southeast corner of an apartment house district lying generally to the northwest of the subject area was directly across Sagamore Street from the northwest corner of the Nahant Garden Apartments site. There was some nonconforming use of property in the locus and across Wave Street including a four-family building, a three-story single apartment structure, and an apartment house, or hotel, The Breakers, a sizable seven-story brick building. 'It was agreed that a number of the resident owners...