Harrison v. Building Inspector of Braintree

• Decision Date: 07 April 1966
• Citation: 215 N.E.2d 773,350 Mass. 559
• Parties: Tredwell A. HARRISON et al. v. BUILDING INSPECTOR OF BRAINTREE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 773

215 N.E.2d 773

350 Mass. 559

Tredwell A. HARRISON et al. v. BUILDING INSPECTOR OF BRAINTREE et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Feb. 10, 1966.

Decided April 7, 1966.

Douglas A. Randall, Wollaston, for petitioners.

Richard A. Hunt, Boston, for respondent Building Inspector of Braintree.

Ronald H. Kessel, Arlington, (Kevin Hern, Milton, with him) for respondent Textron Industries, Inc.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, SPIEGEL, and REARDON, JJ.

WHITTEMORE, Justice.

The petitioners seek an order in mandamus for the enforcement of the zoning by-law of Braintree. Demurrers of the building inspector and Textron Industries, Inc. were sustained and a motion to amend the petition was denied. The petitioners' appeal brings before us the issue whether an owner of land in an industrial district may use lots of land in an adjacent residential zone as access roadways for its industrial plant.

The petition alleges, or by attached maps shows, as follows: The petitioners own a house on the southerly side of West Street. until 1954, this lot and a large tract of adjacent land were zoned for residential use. In 1954 an amendment in respect of the entire tract was adopted in these terms: 'That Par. 1, Section 1 of the Zoning By-Law be amended so that the Zoning Map dated May 2, 1940, as most previously amended, be changed to provide that the following described area be changed from Residence A District to Industrial District: A parcel of land bounded by West Street on the north side, Granite Street on the east side, King Hill Road on the south side and an unnamed street running from West Street to King Hill Road on the west side, said parcel containing approximately 340 acres more or less and the zoning change to be effective in each case from a distance of 200 feet set-back from the street lines.' Conforming to this amendment the zoning map shows in the interior of the 340 acre parcel an industrial district entirely surrounded by a residential strip (either in Residence A or B zones) 200 feet wide adjacent to each street.

The petitioners purchased their lot in June, 1963. The respondent Textron Industries, Inc. (Textron) in January, 1964, 'purchased a large tract of land to the rear of and (extending to West Street) at both sides of the petitioners' property.' Textron immediately began the construction of a large factory and the contractor used Textron's land on either side of the petitioners' land for access roads. It appearing that such use might become permanent, the petitioners protested in August, 1964. Upon written assurance by attorneys representing Textron and its subsidiary that the roadways 'will not produce a detrimental effect upon the petitioners' property, the petitioners suffered the completion of the construction of the driveways.' On September 2, 1964, at a conference with officials of Textron's subsidiary and Textron's attorney, the petitioners and their attorney protested the construction of the driveways and requested their relocation. Factory operations on two shifts began about November 22, 1964. Several hundred employees and the necessary trucks carrying material and manufactured products used the driveways. On December 19, 1964, the petitioners, by their attorney, protested to the building inspector and requested that he act to prevent violations of the by-law. The building inspector has not replied. Since January, 1965, according to the proposed amendment to the petition, the factory has operated around the clock on three shifts employing over 400 persons all of whom use the driveways.

There is no doubt of the right of the petitioners to bring a petition for a writ of mandamus. Brady v. Board of Appeals of Westport, 348 Mass. 515, 520--522, ^a 204 N.E.2d 513. The demurrers of course raise no issue of discretionary refusal of the writ. We note that the facts alleged suggest no basis therefor.

The use of land in a residential district, in which all aspects of industry are barred, for access roadways for an adjacent industrial plant violates the residential requirement. Brookline v. Co-Ray Realty Co., Inc., 326 Mass. 206, 211--212 93 N.E. 581 (rear yard for, and pedestrian entrance to, apartment house). Village of Great Neck Estates v. Bemak & Lehman, Inc., 223 App.Div. 853, 228 N.Y.S. 917, reversing 128 Misc. 441, 218 N.Y.S. 359; affd. 248 N.Y. 651, 162 N.E. 562; City of Yonkers v. Rentways, Inc., 304 N.Y. 499, 109 N.E. 597; Wolf v. Zoning Bd. of Adjustment of Park Ridge, 79 N.J.Super. 546, 550, 192 A.2d 305. See Cary v. Board of Appeals of Worcester, 340 Mass. 748, 166 N.E.2d 690 (invalid variance for parking for business extending into residential zone).

The respondents contend, however, that the 1954 amendment did not zone the 200 foot strip exclusively for residential use. They suggest that means of access over the residential strip was necessarily implicit in the scheme of completely surrounding the industrial area with the residential strip. They point out that...