In re Opinion of the Justices

• Decision Date: 20 May 1920
• Citation: 127 N.E. 525,234 Mass. 597
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

234 Mass. 597

127 N.E. 525

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

May 20, 1920.

Opinion of the Justices of the Supreme Judicial Court as to the constitutionality of House Bill No. 1660, to authorize cities and towns to limit buildings according to their use or construction. Proposed act declared constitutional.

The order of the House of Representatives requesting information as to the constitutionality of the bill, together with the bill itself, follows:

House of Representatives, April 29, 1920.

Ordered, that the Justices of the Supreme Judicial Court be requested to inform the House of Representatives whether in their opinion, the provisions of the bill to authorize cities and towns to limit buildings according to their use or construction (House Bill, No. 1660), now pending, and copies of which are transmitted herewith, would be legal and constitutional if enacted into law.

James W. Kimball, Clerk.

A true copy. Attest:

James W. Kimball,

Clerk of the House of Representatives.

An act to authorize cities and towns to limit buildings according to their use or construction to specified districts.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

Section 1. A city or town may, by ordinance or by-law, restrict buildings to be used for particular industries, trades, manufacturing or commercial purposes to specified parts of the city or town, or may exclude them from specified parts of the city or town, or may provide that such buildings, if situated in certain parts of the city or town, shall be subject to special regulations as to their construction or use. A city or town may also, by ordinance or bylaw, provide that certain kinds of dwelling houses and tenement houses shall be restricted to specified parts of the city or town, or shall be excluded from specified parts of the city or town, or that dwelling houses or tenement houses situated in specified parts of the city or town shall conform to certain regulations in respect to their construction or use which do no apply to such buildings in other parts of the city or town. For the above purpose the city or town may be divided into districts or zones, and the construction and use of buildings in each district or zone may be regulated as above provided.

Section 2. The provisions of this act shall be carried out in such manner as will best promote the health, safety, convenience and welfare of the inhabitants, will lessen the danger from fire, will tend to improve and beautify the city or town, will harmonize with its natural development, and will assist the carrying out of any schemes for municipal improvement put forth by any municipal planning board or board of survey or other like authority. Due regard shall be paid to the characteristics of the different parts of the city or town, and the ordinances or by-laws established hereunder in any city or town shall be the same for zones, districts or streets having substantially the same character.

Section 3. No ordinance shall be established hereunder in any city until after a public hearing thereon has been held, notice of which shall be published, at least thirty days before the hearing, in a newspaper published in the city concerned, or in the county if no newspaper is published in the city. The hearing shall be given by the city council or by such officer, board, commission or committee as may be designated or appointed for the purpose by the city council. No by-law shall be established hereunder by any town except at an annual or special town meeting the warrant for which contains a notice of the proposed by-laws.

Section 4. It shall be the duty of the superintendent of buildings, or the officer or board having supervision of the construction of buildings, or the power of enforcing the municipal building laws, and if in any town there is no such officer or board, then it shall be the duty of the selectment, to withhold a permit for the construction or alteration of any building if the building as constructed or altered would be in violation of any ordinance or by-law established hereunder; and it shall be the duty of municipal officers to refuse any permit or license for the use of a building which use would be in violation of any ordinance or by-law established hereunder.

Section 5. Any person who is aggrieved by the refusal of a permit under the provisions of the preceding section may appeal to the municipal officer or board to which a right of appeal lies from decisions under the building laws of the city or town, and if there is no such officer or board, then the appeal shall lie to the city council of the city or to the selectmen of the town, or to such officer, board, commission or committee as shall be designated or appointed by the city council of the city or by the selectment of the town to act as a board of appeals hereunder.

Section 6. The superior court shall have jurisdiction to enforce the provisions of this act, and may restrain by injunction any violation thereof.

Section 7. This act shall not apply to existing structures nor to the existing use of any building, but it shall apply to any alteration of a building to provide for its use for a purpose, or in a manner, substantially different from the use to which it was put before the alteration.

Section 8. This act shall not apply to any existing or proposed building used or to be used by a public service corporation: Provided, that upon a petition of the corporation, the department of public utilities shall, after a public hearing, decide that the situation of the building in question is reasonably necessary for the convenience or welfare of the public.

Section 9. No ordinance or by-law established hereunder shall be repealed or modified except after reasonable notice of the proposed repeal or modification, and an opportunity to the objectors to be heard thereon. If any owner of real estate which would be affected by the proposed ordinance or by-law objects thereto, it shall not be established except by a unanimous vote of all the members of the city council of the city, or of the voters of the town voting thereon; and in no case shall such an ordinance or by-law be repealed or modified except by a two thirds vote of all the members of the city council, or by a two thirds vote of the voters of a town voting thereon at an annual or special town meeting duly called for the purpose. To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

We, the Justices of the Supreme Judicial Court, having considered the question on which our opinion is requested under the order of April 29, 1920, a copy whereof is hereto annexed, respectfully submit this answer:

The title and substance of the proposed act support the inference that it is in execution of the power conferred by article 60 of the amendments to the Constitution of this commonwealth. That amendment is in these words:

‘The General Court shall have power to limit buildings according to their use or construction to specified districts of cities and towns.’

[1] The constitutionality of the proposed act is to be determined with reference to all other provisions of the Constitution not changed by article 60 of the amendments, as well as to that article.

[2] Amendment 60 declares a principle, not a specification of details. It is brief, plain and ample in its grant of power. It conforms to the structure of the original Constitution, which is a frame of government, comprehensive in its provisions, general in its terms, and calculated to endure as the basis of a free and intelligent republic, whatever changes may come. It is to be construed in conformity with that design and is not to be given a constricted interpretation. This amendment was proposed by the constitutional convention to the people in 1918. The debates in the convention indicate that the thought uppermost in the minds of those who spoke was to prevent an established residential neighborhood from being injured by the construction or use of buildings whereby the neighborhood would be rendered less desirable for homes.

There is no restriction in the amendment as to the kind of building over which the power is conferred. The only bound set to legislation is the ‘use or construction’ of whatever structures rightly may be described as ‘building.’ Both ‘use’ and ‘construction’ as well as ‘buildings' are words of wide signification.

Section 1 of the proposed act is confined strictly to the use and construction of buildings within its scope. It closely follows the words of the amendment except in particulars where subclassifications are established based on use or construction and general in their terms. All ordinances or bylaws must be fashioned in subordination to the requirements of this section. It relates to two different classes of buildings: (1) Buildings to be used for particular industries, trades or commercial purposes which may be (a) restricted to specified parts of a municipality and excluded from designated districts, or (b) if situated in certain parts made subject to special regulations as to their construction or use. (2) Dwelling houses and tenement houses which may be (a) restricted to described portions of a municipality or excluded from defined areas thereof, or (b) if situated in specified parts of a municipality may be made conformable to certain regulations in respect of their construction or use which are not applicable to such buildings in other parts of the municipality. For these purposes the municipality may be divided into districts or zones.

An ordinance or by-law which segregates manufacturing and commercial buildings on the one side, from homes and residences on the other, is justified by the broad conceptions of the police power created by amendment 60. It might be warranted independent of that amendment under appropriate circumstances, at least to a...