Jenckes v. Building Com'r of Brookline

• Decision Date: 07 June 1960
• Citation: 341 Mass. 162,167 N.E.2d 757
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 757

167 N.E.2d 757

341 Mass. 162

Marcien JENCKES v. BUILDING COMMISSIONER OF BROOKLINE et al. ¹

Supreme Judicial Court of Massachusetts, Norfolk.

Argued May 3, 1960.

Decided June 7, 1960.

Marcien Jenckes, Boston (Geoffrey Bolton, Shirley, and Thomas Otis, Boston with him), for plaintiff.

Daniel G. Rollins, Brookline, Town Counsel, for defendants.

Alfred Gardner and William C. Sawyer, Boston, by leave of court, submitted a brief as amici curiae.

Before SPALDING, WILLIAMS, COUNIHAN, WHITTEMORE, and CUTTER, JJ.

CUTTER, Justice.

The plaintiff who holds a written contract to purchase a vacant lot (lot 11, block 326, on the assessors' plans) on Fairmount Street, Brookline, seeks declarations (a) that he is not prevented by certain provisions of the zoning by-law of Brookline from building on that lot a residence otherwise complying with the by-law, and (b) that he is entitled to a building permit. There appears to be no dispute about the facts, many of which are to be derived principally from three plans referred to informally in the pleadings and in the trial judge's findings. Although counsel should have made sure that the record contained more specific indication that these plans were to be part of the record (see Clarke v. Board of Appeals of Nahant, 338 Mass. 473, 475, 155 N.E.2d 754; cf. Dodge v. Inspector of Bldgs. of Newburyport, Mass., 164 N.E.2d 309), we consider them, as the parties have done in their briefs and at the arguments, as intended to be incorporated by reference in the pleadings and findings. The trial judge indicated that the sole question presented was whether the town, by its zoning by-law, may 'prohibit the construction of a residence otherwise completely in accordance with the zoning and building laws merely because the lot is located on a private way less than forty feet wide open and dedicated to the use of the public before the enactment of the zoning enabling act.'

The trial judge found, among other things: 'Fairmount Street, although still unaccepted by the town, has been open to public use for over fifty years. It is approximately 1,400 feet long and approximately thirty feet wide. * * * [L]ot 11, upon which the residence is proposed to be constructed, conforms to the by-laws as to area and frontage requirements, so far as width and depth and area are concerned and the denial of the permit by the building commissioner is posited upon the claim that Fairmount Street is not forty feet in width. Fairmount Street is in the district classified * * * [art. III, § 7, of the by-law] as a single residence district [art. IV, § 7(e)] * * * [T]he proposed construction * * * complied with all provisions of the * * * [by-law] excepting that it does not abut on a forty foot private way, as required by * * * [art. II] defining a private way.' The town has adopted the subdivision control law. The planning board dealt with a plan, recorded in the registry of deeds on December 26, 1957, showing a division of a large lot (containing, before its division, 53,706 square feet) running from Fairmount Street to Dudley Street, which lies just south of the old Brookline Reservoir. Lot 11, the locus, after the division contained 23,010 square feet, and had a depth of over one hundred ninety feet and a frontage on Fairmount Street of over one hundred eighteen feet. The plan was indorsed in behalf of the planning board, 'Planning Board approval not required under the subdivision control law. No building may be erected upon lot 1, as it would constitute a violation of the zoning by-law' ² (Art. IV § 11[e]). Fairmount Street was not 'a way meeting the requirements of' art. IV, § 11(e), which, so the parties agreed, was not included in the by-law until 1943 when an amendment substantially in the form of § 11(e) was first added.

The trial judge ruled that art. IV, § 11(e), 'is * * * valid * * * that it is not in conflict with * * * the enabling act [G.L. c. 40A] * * * that the refusal of a permit by the building commissioner was within his jurisdiction * * * that in the absence of a special permit or other authority, the * * * [plaintiff] is not entitled to construct a residence on lot 11 * * * [and] that the * * * commissioner is not required to issue a building permit.' A final decree, conforming to these rulings, was entered. The plaintiff has appealed.

Examination of the plans in the record shows that Fairmount Street is the only method of access to at least twelve lots. Three lots on Fairmount Street abut also on Dudley Street. The locus (except for part of a large parcel on the opposite side of Fairmount Street near its easterly end) is the only lot upon which there is no building. Some buildings are close to Fairmount Street and would be likely to be damaged by any widening of the street. No necessity or demand for any such widening appears in the record. It seems unlikely that such widening could be accomplished without use by the town of the power of eminent domain at some expense to the taxpayers. The effect of the 1943 by-law amendment, now § 11(e), ³ is to make this lot of 23,010 square feet usable for no purpose except a playground, a park, or ornamental grounds or, perhaps, for uses accessory to the use of the lot (30,696 square feet) on Dudley Street from which the locus has just been, or is about to be, separated. Even ordinary agricultural use does not seem to be permitted. The effect of the amendment, as applied to the locus, is to deprive it of...