O'Connell v. City of Brockton Bd. of Appeals

• Decision Date: 20 April 1962
• Citation: 344 Mass. 208,181 N.E.2d 800
• Parties: Richard J. O'CONNELL et al. v. CITY OF BROCKTON BOARD OF APPEALS et al. (and a companion case).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 800

181 N.E.2d 800

344 Mass. 208

Richard J. O'CONNELL et al. v. CITY OF BROCKTON BOARD OF APPEALS et al. (and a companion case).

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Dec. 6, 1961.

Decided April 20, 1962.

Cortland A. Mathers, Brockton, for plaintiffs.

Ermon L. Markella, Sp. City Sol., for defendant City of Brockton Board of Appeals.

Augustus P. Vitali, Dedham, for defendant Orchard Estates, Inc.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE, and SPIEGEL, JJ.

SPALDING, Justice.

This is an appeal from a final decree of the Superior Court under G.L. c. 40A, § 21 (as amended through St.1958, c. 175), upholding the defendant board of appeals of the city of Brockton in approving the issuance of certain building permits by the city's building inspector to the defendant Orchard Estates, Inc. (Orchard).

The evidence, which is before us, discloses the following: Orchard is the owner of certain land abutting on the northerly side of West Elm Street in the city of Brockton. The land is bounded on the west by the lot of the plaintiff Richard J. O'Connell and on the east by the lot of the plaintiff Frank Remmes. Across the street, on the southerly side of West Elm Street, there are four houses. The setback distances of the houses on the northerly side of the street are thirty-five feet (O'Connell house) and eighty-seven feet (Remmes house). On the southerly side, the setbacks are between twenty-nine feet (or twenty-one and one-half feet if porches are included) and slightly over thirty feet. All of the above described property is located in a 'C Bulk District' and a 'Residence Use District' as set forth in the Revised Ordinances of Brockton.

In the fall of 1959, Orchard applied to the building inspector of the city for a permit to construct an apartment house on its land. The permit was granted and construction was started immediately. The plaintiffs, in November, 1959, sought to enjoin further construction, without success. At a hearing before the board of appeals, the action of the building inspector in granting the permit was sustained. Thereupon the plaintiffs appealed to the Superior Court.

The specifications of the apartment house are as follows: Height of building above lot grade: twenty-two feet. Height of building above street grade: twenty-three feet, four and one-half inches. Number of levels: three. The bottom level has three apartments; the middle and top levels each have four apartments. Setback from street: twenty-seven and one-half feet. Side-yard distance from O'Connell lot: twenty feet, seven inches (or fifteen feet, eleven inches if stairwell apartment house is counted).

Additional permits were issued to Orchard in the summer of 1960 for two more apartment houses on this land, which are substantially identical with the one described above. The board of appeals sustained the action of the building inspector in granting permits for these two buildings. The plaintiffs appealed to the Superior Court, and the two appeals were consolidated. The judge found that 'the action of the board was reasonable and proper and in compliance with the purpose and intent of a vaguely worded zoning by-law.'

1. Whether the setback zoning requirement is being violated turns on a construction of the following ordinance:

'Where in a residence district * * * at least one-half of the buildings situated on either side of a street between two intersecting streets conform to a minimum setback line, no new building shall be erected * * * to project beyond such setback line * * *' (Revised Ordinances of Brockton [1949] c. 26, § 11).

In the view we take, the facts of this case are unimportant. We are of opinion that this ordinance is so vague as to be void under the Fourteenth Amendment to the Constitution of the United States and under art. 12 of the Declaration of Rights of the Constitution of the Commonwealth. The ordinance seeks to proscribe certain conduct while leaving unanswered several questions.

First, does the setback provision contemplate considering only the side of the street on which the new building is to be erected, or both sides? The word 'either' is ambiguous in this setting. The plaintiffs urge the court to consider only one side. Their argument is that, if we were to look at the setbacks on both sides of the street, situations could arise where a new building would have to be placed way out of line with houses on its side of the street. For an example, the plaintiffs suggest that we assume that the north side of a street has ten houses, each set back seventy-five feet, and the south side has nine houses, each of which is set back fifteen feet, and a vacant lot. An application of the 'both sides' construction would allow the neighbors to force a new house built on the south-side vacant lot to be set back seventy-five feet. The defendants argue that the 'both sides' construction of the ordinance is more reasonable in that zoning ordinances should be construed to apply 'uniformly.' We assume that the plaintiffs' 'one-side' construction is correct, but it would not change the result.

An even more perplexing problem arises when one tries to ascertain what is intended by the fifty per cent minimum setback line contemplated by the ordinance. This problem arises whether one looks to one side or both sides of the street in question. Suppose a row of houses set back from the street eighteen feet (house A), twenty feet (house B), twenty-two feet (house C), twenty-four feet (house D), and twenty-six feet (house E). In determining the minimum setback contemplated by the ordinance, there are various possibilities. (1) Eighteen feet is one possibility, on the ground that all five houses conform to this setback. This appears to be the construction placed upon the ordinance by the parties, the only difference between them being whether 'either' means one side of the street or both sides. (2) Twenty feet is a possibility, since over fifty per cent of the houses (B, C, D, and E) conform to a setback of twenty feet. (3) Twenty-two feet is a...