Enos v. City of Brockton
| Decision Date | 07 May 1968 |
| Citation | 236 N.E.2d 919,354 Mass. 278 |
| Parties | Anthony T. ENOS v. CITY OF BROCKTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Thomas G. Dignan, Jr., Boston, for petitioner.
Ralph G. Silverstein, Asst. City Sol., for respondent.
Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER and KIRK, JJ.
This petition was brought in the Land Court under G.L. c. 240, § 14A, and G.L. c. 185, § 1(j 1/2), to determine the validity of § 11B(e) of the zoning ordinance of the city of Brockton. The case was heard on a statement of agreed facts which the judge adopted as his findings. He ruled that § 11B(e) was valid. The case is here on the petitioner's exceptions to this and other rulings.
The petitioner is the owner of a freehold estate in possession in certain land in the city of Brockton, upon which he desires to build multiple dwellings. 1 He has been informed by the city's building inspector that if he builds multi-family apartment dwellings upon his property they must be constructed with twelve-inch thick masonry walls as required by § 11B(e) of the zoning ordinance. Section 11B(e) reads: 'All multiple dwellings shall be of second class construction.' The words 'second class construction' are defined in § 24 of the building code but not in the zoning ordinance. It is not disputed that second class construction under the building code, requires masonry walls twelve inches thick.
The petitioner's exceptions to the various rulings of the judge raise substantially the same question and will not be dealt with separately. The thrust of these requests is that § 11B(e) of the zoning ordinance is not authorized by the enabling act (G.L. c. 40A, § 2) and is, therefore, void. The respondent concedes that the zoning ordinance is separate and distinct from the building code. Thus § 11B(e) must stand or fall as a regulation authorized by the zoning statutes. The respondent, nevertheless, urges that § 11B(e) falls within the purposes of the zoning enabling provision, as it is designed to promote 'the health, safety, convenience, morals or welfare of * * * (the) inhabitants' of a municipality. In particular it is urged that § 11B(e) will aid in the prevention of fire. 2 Although § 11B(e) may in fact serve to accomplish this purpose, its validity here turns upon whether its accomplishment is properly effected through the medium of a zoning regulation of this sort.
As the judge below found, the 'purpose and effect of Section 11B(e) * * * is to require a certain type of wall and floor to be utilized in the construction of dwellings of the type which the petitioner is desirous of building on the land owned by him in the City of Brockton.' It is clear that § 11B(e) is not authorized by the first paragraph of G.L. c. 40A, § 2. 3
The respondent urges that § 11B(e) is authorized by the language of the second paragraph of c. 40A, § 2, which provides that 'a zoning ordinance * * * may regulate and restrict the erection, construction, reconstruction, alteration or use of buildings, * * * or use of land * * *.' From our examination of the statutory history of § 2 we are of opinion that the second paragraph was not intended to authorize the regulation of the constituent materials of walls and floors by means of a zoning ordinance. These matters are properly the subject of building codes rather than zoning regulations. General Laws c. 143, § 3, provides in part that a city may 'regulate the inspection, materials, construction, alteration, repair, demolition, removal, height, area, location and use * * * of buildings and other structures within its limits * * *.' This statute, which authorizes municipal regulation and inspection of building materials, has had a long history. The general features of § 3 were first enacted by St.1872, c. 243. See Slack v. Inspector of Bldgs. of Wellesley, 262 Mass. 404, 405, 160 N.E. 285. Although the Zoning Enabling Act permits regulation of many of the subjects set forth in the building code enabling act the words 'inspection' and 'materials' are not employed. It cannot therefore be said that the building code legislation has been superseded by the zoning statutes. See Inspector of Bldgs. of Falmouth v. General Outdoor Advertising Co. Inc., 264 Mass. 85, 88--89, 161 N.E. 899.
It should be borne in mind that the purposes and operation of zoning laws and building codes are somewhat divergent. See Norcross v. Board of Appeal of the Bldg. Dept. of Boston, 255 Mass. 177, 182--183, 150 N.E. 887. Whereas the main purpose of zoning is to stabilize the use of property and to protect an area from deleterious uses (Everpure Ice Mfg. Co. Inc. v. Board of Appeals of Lawrence, 324 Mass. 433, 435, 86 N.E.2d 906; Kaplan v. Boston, 330 Mass. 381, 384, 113 N.E.2d 856), a building code 'relates to the safety and structure of buildings.' See Norcross v. Board of Appeal of the Bldg. Dept. of Boston, 255 Mass. 177, 182, 150 N.E. 887; Rice v. Board of Appeals of Dennis, 342 Mass. 499, 500, 174 N.E.2d 355; Turner v. Board of Appeals of Milton, 305 Mass. 189, 192, 25 N.E.2d 203.
There is the added fact that the amending process of zoning ordinances or by-laws differs in many respects from that of building codes. Changes in zoning ordinances or by-laws usually require a two-thirds vote of the municipal law making body, and in some instances a three-fourths or even unanimous vote is required. (See G.L. c. 40A, § 7.) There are also in such cases provisions for a hearing before the planning board and a report by the board to the legislative body. G.L. c. 40A, § 6. If a proposed change is rejected, the matter, subject to certain exceptions, may not be reconsidered for two years. (See G.L. c. 40A, § 8.) 4 It thus is apparent that zoning regulations are intended to have a certain degree of permanency, as evidenced by the fact that they are more difficult to amend than most other by-laws and ordinances. A building code, on the other hand, is much more flexible as a result of the broad provisions of c. 143,...
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...from deleterious uses (citations omitted), a building code 'relates to the safety and structure of buildings.' " Enos v. Brockton, 354 Mass. 278, 280-281, 236 N.E.2d 919 quoting from Norcross v. Board of Appeals of the Bldg. Dept. of Boston, 255 Mass. 177, 182, 150 N.E. 887 (1926). See O'Do......
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