Com. v. Jaffe

• Decision Date: 15 July 1986
• Citation: 494 N.E.2d 1342,398 Mass. 50
• Parties: COMMONWEALTH v. Leon D. JAFFE (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1342

494 N.E.2d 1342

398 Mass. 50

COMMONWEALTH v. Leon D. JAFFE (and a companion case ¹).

Supreme Judicial Court of Massachusetts Middlesex.

Argued April 8, 1986.

Decided July 15, 1986.

Gerald S. Cournoyer, Jr., Waltham, for defendants.

Michael D. Baseman, Asst. City Sol., for Commonwealth.

Marjorie Heins and Kathleen M. Sullivan, Boston, for Massachusetts Civil Liberties Union Foundation, amicus curiae, submitted a brief.

Judith Kaye, Worcester, and Charles Vander Linden, Fitchburg, for Legal Assistance Corporation of Central Massachusetts on behalf of Marta Mojica, amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

ABRAMS, Justice.

The defendants, the owners of an eight-bedroom house in the city of Newton that they rented to eight unrelated tenants, were convicted of violation of § 30-5(a) of the zoning ordinance of the city of Newton by designing, arranging, or constructing a structure as a dwelling for more than one family and by using the structure as a dwelling for more than one family. ² In response to the defendants' motions for required findings, the judge found each defendant guilty on both counts on the basis of stipulated facts and a view of the premises. ³ He issued a memorandum in support of his decisions. The defendants appealed and we transferred the cases to this court on our own motion. We affirm.

The stipulated facts may be summarized as follows. In July, 1984, the defendants purchased a house at 58 Winthrop Street in West Newton. The purchase and sale agreement provided that a "stove in second-floor kitchen" was not included in the sale. The house is situated in a single residence B zoning district pursuant to a zoning plan entitled "City of Newton, Massachusetts, Amendments to Zoning Plan, adopted July 21, 1951, as amended."

The house contains both front and rear entrances with doors discharging on the first floor and two interior stairways. The first floor of the house contains an enclosed porch, a kitchen (with sink, stove, and refrigerator), a pantry, a bathroom, two bedrooms, and a common room. The doors of the bedrooms and common room provide access to the front hallway and to each other. The second floor contains a kitchen area (including sink, stove, and refrigerator), a common room, three bedrooms, and a bathroom. The third floor contains three bedrooms and a new bathroom. The defendants had obtained a building permit to construct the third-floor bathroom in late July, 1984.

The Newton building department allows second kitchens in single family dwellings in limited cases. The stipulated facts indicate that the Newton building commissioner has discretion to allow a second kitchen, if: (1) the dwelling is owner occupied, and not leased to tenants; (2) the owner submits a notarized letter to the building commissioner stating his reasons for requesting a second kitchen; ⁴ (3) the owner agrees to remove the second kitchen before sale of the dwelling; and (4) when submitted, the building plans for the second kitchen will be marked "no permanent additional kitchen" and placed in the building department's "Property File" which is kept on each structure by address.

On August 22, 1984, the building department received a written complaint alleging that the defendants' house was being converted into a two-family dwelling. The next day, a building inspector inspected the premises and was told by the defendant, Leon Jaffe, that there would be no stove on the second floor, and that there would be only one kitchen on the premises, on the first floor. At that time, there were no tenants living at the house.

On September 10, inspection of the house revealed a full kitchen on the first floor, with stove, refrigerator, sink, cabinets, and counters. The second floor contained a kitchen space with cabinets and counters, a refrigerator, and a new sink. No building permit had been issued for the original sink nor for its replacement by the defendants. There was no stove at this time.

A November 16 inspection by city officials revealed that a new electric stove had been installed on the second floor by the defendants without a building permit. No new electrical service was installed at this time.

As of September 1, 1984, the defendants leased the house to eight unrelated persons who occupy it as their principal residence. All of the tenants have keys to both the front and rear exterior doors. There are no interior locks other than one on a bedroom in which the occupant stores firearms, and one chain lock to keep a dog inside.

All eight tenants signed one "Standard Form Apartment Lease," which provides for a term of one year, beginning on September 1, 1984. Attached to the lease is an addendum, which provides in part that "[a]ny one tenant may be given thirty days' notice to vacate the premises by the Lessor without affecting the tenancy of the other tenants on this lease."

The District Court judge who viewed the house found that it contained two "conventional-type kitchens, all in accordance with the stipulations." He observed that there were several mailboxes adjacent to the front door bearing the names of the occupants and that "the premises were kept clean and orderly as any normal 'household.' " He concluded that the evidence showed "a complete lack of communal living."

On appeal, the defendants argue that the failure of § 30-5(a) of the Newton zoning ordinance, which prohibits the design, arrangement, construction, or use of a building in a single residence district for any purpose other than a dwelling for not more than one family, is unconstitutionally vague because it fails to define the words "one family" and "a dwelling for not more than one family."

"A law is void for vagueness if persons 'of common intelligence must necessarily guess at its meaning and differ as to its application.' Smith v. Goguen, 415 U.S. 566, 572 n. 8 [94 S.Ct. 1242, 1247 n. 8, 39 L.Ed.2d 605] (1974), quoting Connally v. General Constr. Co., 269 U.S. 385, 391 [46 S.Ct. 126, 127, 70 L.Ed. 322] (1926). Vague laws violate due process because individuals do not receive fair notice of the conduct proscribed by a statute, Papachristou v. Jacksonville, 405 U.S. 156, 162 [92 S.Ct. 839, 843, 31 L.Ed.2d 110] (1972), and because vague laws that do not limit the exercise of discretion by officials engender the possibility of arbitrary and discriminatory enforcement, Grayned v. Rockford, 408 U.S. 104, 108-109 & n. 4 [92 S.Ct. 2294, 2298-2299 & n. 4, 33 L.Ed.2d 222] (1972)." Caswell v. Licensing Comm'n for Brockton, 387 Mass. 864, 873, 444 N.E.2d 922 (1983). Although the words "one family" ⁵ may not be precise, "[z]oning is entitled to a strong presumption of constitutional validity (Rosko v. Marlborough, 355 Mass. 51, 53 [242 N.E.2d 857] [1968] ), and courts should be wary of declaring zoning fatally indefinite." Jenkins v. Pepperell, 18 Mass.App.Ct. 265, 270, 465 N.E.2d 268 (1984).

In this case, we need not decide the definition to be given the words "one family" because the use of a house by eight unrelated adults who evidence "a complete lack of communal living" ⁶ and who, under the terms of their lease, may each be evicted by their lessor without affecting the tenancy of the other tenants on the lease, does not fall within any reasonable judicial construction of the words "one family." See Quogue v. Ladd, 40 A.D.2d 859, 337 N.Y.S.2d 868 (N.Y.1972) (group of eleven unrelated young adults to whom defendants rented one-family residence for the summer not a "family" within meaning of zoning ordinance); Henrietta v. Fairchild, 53 Misc.2d 862, 279 N.Y.S.2d 992 (N.Y.Sup.Ct.1967) (use of premises by owner and from three to seven unrelated persons, except for one brother, under economic arrangement whereby each contributed toward upkeep and maintenance of the property, interior furnishing of the dwelling, food and entertainment of the group, held not to constitute use by a "single family"). We conclude that § 30-5(a) of the zoning ordinance is not unconstitutionally vague as applied to these defendants.

Similarly, the first and second floors of the defendants' building, which each contain a kitchen, bathroom, bedrooms, and a common room, do not fit within the commonly understood meaning of a one-family dwelling. See State Building Code, 780 Code Mass.Regs. § 201.3, at 53 (1980), defining a one-family dwelling as "[a] building containing one (1) dwelling unit with not more than three (3) lodgers or boarders," and a dwelling unit as "[a] single unit providing complete, independent living facilities for one (1) or more persons including permanent provisions for living, sleeping, eating, cooking, and sanitation." See also Lynn v. Olanoff, 314 Mass. 249, 49 N.E.2d 886 (1943); Martin v. Rent Control Bd. of Cambridge, 19 Mass.App.Ct. 745, 477 N.E.2d 426 (1985); Williams v. Adami, 70 Misc.2d 702, 334 N.Y.S.2d 539 (N.Y.Sup.Ct.1972). Moreover, Leon Jaffe's representation to a city building inspector that a second stove would not be installed supports an inference that both defendants, or at least Leon Jaffe, ⁷ were well aware of the meaning of a one-family dwelling and had installed a second stove without a building permit in deliberate contravention of the city's zoning ordinance.

The defendants also argue that § 30-5(a) violates their due process rights pursuant to art. 10 of the Massachusetts Declaration of Rights because it restricts the benefits of single family zoning districts to persons related by blood, marriage, or adoption. Relying primarily on cases from other jurisdictions (Santa Barbara v. Adamson, 27 Cal.3d 123, 164 Cal.Rptr. 539, 610 P.2d 436 [1980]; Delta v. Dinolfo, 419 Mich. 253, 351 N.W.2d 831 [1984]; State v. Baker, 81 N.J. 99, 405 A.2d 368 [1979]; and McMinn v. Oyster Bay, 105 A.D.2d 46, 482 N.Y.S.2d 773 [1984], aff'd, 66 N.Y.2d 544, 498 N.Y.S.2d 128, 488 N.E.2d 1240 [1985] ), the defendants urge this court to adopt the notion of a ...