Gricus v. Superintendent and Inspector of Buildings of Cambridge

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before WILKINS; SPALDING
• Citation: Gricus v. Superintendent and Inspector of Buildings of Cambridge, 189 N.E.2d 209, 345 Mass. 687 (Mass. 1963)
• Decision Date: 02 April 1963
• Parties: Frances GRICUS et al. v. SUPERINTENDENT AND INSPECTOR OF BUILDINGS OF CAMBRIDGE et al.

Page 209

189 N.E.2d 209

345 Mass. 687

Frances GRICUS et al. v. SUPERINTENDENT AND INSPECTOR OF BUILDINGS OF CAMBRIDGE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 5, 1963.

Decided April 2, 1963.

Samuel M. Flaksman, Cambridge, for respondents.

Levin H. Campbell, Boston, for petitioners.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and KIRK, JJ.

SPALDING, Justice.

This petition for a writ of mandamus is brought by six residents of the city of Cambridge to compel compliance with the zoning laws. The petition alleges that an ordinance adopted by the Cambridge city council on April 11, 1960, constituted spot zoning; it also alleges that the ordinance was not enacted in accordance with law. The respondents are the superintendent and inspector of buildings, the city manager, and temporary clerk of the city. The prayers are that writs of mandamus issue to compel the building inspector and city manager to observe and enforce the zoning law as it existed prior to the adoption of the challenged ordinance, and that the temporary clerk be ordered to enter on the appropriate records of the city the action of the court on this petition. The case was submitted on a statement of agreed facts.

On April 11, 1960, the Cambridge city council enacted an ordinance rezoning a parcel of land at 401-417 Franklin Street from 'Residence C-1' to Business B.' This parcel, which comprises 13,000 square feet, is owned by Alwin A. Klauer who acquired it in 1943 or 1944. When Klauer purchased the property it was in a 'Residence C-1' district and it remained in this district down to the time of the enactment of the above-mentioned ordinance. The property at that time contained for houses which were occupied by six families. Thereafter, these houses deteriorated to such an extent that they had to be demolished. The 'Residence C-1' district adjoins a 'Residence C-2' district and the two districts together comprise twenty-five city blocks. Under the Cambridge zoning ordinance a 'Residence C-1' district is designated as a multi-family residence district. No business uses (with limited exceptions not here material) are allowed in such districts. Garages, parking lots, and trucking terminals are not allowed. 'Business-B' districts are designated for 'general and wholesale business' and may include a wide variety of business uses, including automobile parking lots, filling stations, storage warehouses, and similar uses. Adjacent to the rezoned locus is a 5,000 square foot parcel owned by Klauer on whose petition it was rezoned by the council in 1948 from 'Residence C-2' to 'Industry-B,' a heavy industry district. About 150 feet to the east of the lot just described, and on the opposite side of Franklin Street, is a parcel comprising 4,933 square feet which was rezoned in 1955 from 'Residence C-2' to 'Industry-A' There are scattered individual properties near the locus being used (but not zoned) for business or industrial purposes. Many of these are nonconforming uses which antedated the zoning ordinance.

The petition for the rezoning of the locus was referred to the Cambridge planning board as required by law and the board recommended that it be denied. Following the report of the planning board a public hearing was held by the city council. In April, 1960, more than five years after the public hearing, the ordinance to rezone the locus was adopted. Klauer proposes to rent the locus for 'use as part of a terminal and parking lot for up to 40 trucks.' The present petitioners own and reside in houses in the vicinity of the locus.

The judge ruled (1) that the challenged ordinance was spot zoning and was illegal and void; (2) that the ordinance, because of the lapse of time between the public hearing and its enactment, was not adopted in accordance with law; and (3) that mandamus was the appropriate remedy. He ordered that the petition against the respondent Curry, the city manager, be dismissed; that a writ of mandamus issue against the building inspector commanding him to enforce the zoning ordinance as it existed prior to the adoption of the challenged ordinance; and that a writ of mandamus issue against the temporary clerk commanding him to correct the zoning map of the city so that it will conform with the court's action. The respondents appealed.

1. We are of opinion that the judge was right in ruling that the...