Decoulos v. City of Peabody

• Decision Date: 08 November 1971
• Citation: 360 Mass. 428,274 N.E.2d 816
• Parties: , 3 ERC 1493 Nicholas J. DECOULOS, trustee, et al. v. CITY OF PEABODY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 816

274 N.E.2d 816

360 Mass. 428, 3 ERC 1493

Nicholas J. DECOULOS, trustee, et al. v. CITY OF PEABODY et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued Oct. 8, 1971.

Decided Nov. 8, 1971.

Nicholas J. Decoulos, pro se.

Leonard F. Conway, Jr., Asst. City Sol., for the City of Peabody and another, submitted a brief.

Before TAURO, C.J., and CUTTER, REARDON, QUIRICO and HENNESSEY, JJ.

CUTTER, Justice.

The plaintiff, owner of about 14.44 acres of land (the locus) on Route 114, seeks declaratory relief against the city and its building inspector concerning the validity of §§ 7--A--1 and 7--A--2 of the city's amended zoning ordinance as applied to the locus. The final decree declared (a) § 7--A--2 to be invalid ¹ and (b) § 7--A--1 to be valid. The plaintiff appealed. The case is before us on the pleadings and a report of material facts.

Section 7--A--1 of the zoning ordinance, contained in a 1969 amendment of the ordinance, permits certain specified commercial used on the locus (and certain other land nearby), 'provided, however, that no such use * * * be permitted unless the sewage disposal for said lot is connected to the municipal sanitary sewer system.' The locus is not at present directly served by the municipal sewer system and an extension will be required before the locus can be connected to the system. The plaintiff, relying on Enos v. Brockton, 354 Mass. 278, 280--282, 236 N.E.2d 919, contends that the zoning enabling act (G.L. c. 40A) does not permit the city, by a zoning ordinance, to require the connection of the locus with the city's sewer system, and asserts that such matters may be dealt with only under G.L. c. 111, § 127A (inserted by St.1965, c. 896, § 3) and the State Sanitary Code (1966 ed.). See especially §§ 2.9--6.9, promulgated thereunder. See also G.L. c. 83, §§ 3 and 11.

We assume (without deciding) that the city could not in its zoning ordinance require the making of sewer connections on a basis which in any degree relaxes any standards laid down in the statutes just cited or in the State Sanitary Code (see Commonwealth v. Hadley, 351 Mass. 439, 440, 222 N.E.2d 681, judgment vacated, 388 U.S. 464, 87 S.Ct. 2124, 18 L.Ed.2d 1323). We think, however, that the powers granted by c. 83, § 11; c. 111, § 127A; the State Sanitary Code; and related health statutes indicate no legislative intention to preclude a city from including appropriate, more specific and stringent health protection measures in a zoning ordinance adopted pursuant to G.L. c. 40A. The contested provision of the Peabody ordinance (§ 7--A--1) seems to us designed to regulate for reasons of public health and welfare the type, use, and quality of structures in a particular zone or use district.

The extensive powers, granted by G.L. c. 40A to cities and towns, are not to be narrowly interpreted. General Laws c. 40A, § 2 (as amended through St.1959, c. 607, § 1), provides (emphasis supplied) that, for 'the purpose of promoting the health * * * or welfare of its inhabitants, any city * * * may by a zoning ordinance * * * regulate * * * the location and use of buildings, structures and land for trade * * * or other purposes' subject to a proviso not here pertinent. The provision of a sewer connection obviously has a direct relation to the use of a commercial building and to the possible effects of that use upon other buildings in the same zoning district. Section 3 (inserted by St.1954, c. 368, § 2) provides (emphasis supplied) that '(z)oning regulations * * * shall be designed among other purposes * * * to conserve health; to secure safety from fire * * * and other dangers * * * to facilitate the adequate provision of * * * water, sewerage * * * and other public requirements; to conserve the value of land and buildings; to encourage the most appropriate use of land throughout the city * * * and to preserve and increase its amenities.' Requiring a sewer connection in a commercial area, with its intensive use, plainly facilitates the 'adequate provision of * * * sewerage' and tends to increase the 'amenities' of that zone.

One test of the substantive validity of an amendment of a zoning ordinance or by-law is 'whether there has been shown any substantial relation between the amendment and the furtherance of any of the general objects of the enabling act.' See Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220, 228--229, 202 N.E.2d 777, 783. Cf. Beal v. Building Commr. of Springfield, 353 Mass. 640, 643, 234 N.E.2d 299. Judged by this test, the requirement in § 7--A--1 of the Peabody ordinance (that commercial buildings be 'connected to the municipal sanitary sewer system') cannot be said to be an unsuitable method of protecting the health of the general community and accomplishing the statutory zoning objectives.

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