Leahy v. Inspector of Buildings of New Bedford

• Decision Date: 23 January 1941
• Citation: 308 Mass. 128,31 N.E.2d 436
• Parties: LEAHY et al. v. INSPECTOR OF BUILDINGS OF CITY OF NEW BEDFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 128

31 N.E.2d 436

LEAHY et al.

v.INSPECTOR OF BUILDINGS OF CITY OF NEW BEDFORD.

Supreme Judicial Court of Massachusetts, Bristol.

Jan. 23, 1941.

Exceptions from Supreme Judicial Court.

Mandamus proceeding by Michel J. Leahy and others against the Inspector of Buildings of the City of New Bedford to require the respondent to enforce a zoning ordinance of the city as it was before it was amended to change a parcel of land from the residential to a business district, and to revoke building permit issued by respondent for construction upon the parcel, of a building to be used for commercial purposes.The case was heard on an auditor's report.The single justice found the facts as stated by the auditor and found and ruled that amendment to the ordinance was invalid and ordered the writ to issue.On exceptions of both parties to the action taken upon their requests for rulings.

Petitioners' exceptions overruled and respondents' exceptions overruled.

Argued before FIELD, C. J., and DONAHUE, DOLAN, and RONAN, JJ.

T. M. Quinn, of New Bedford, for plaintiffs.

A. P. Doyle and F. Vera, both of New Bedford, for defendant.

RONAN, Justice.

The petitioners seek a writ of mandamus to require the respondent, the building inspector, to enforce the zoning ordinance of New Bedford as it was before it was amended on April 8, 1937, whereby a parcel of land located on the corner of County and Mill streets and owned by one Epstein was changed from a residential to a business district, and to revoke the building permit issued by the respondent for the construction upon said parcel of a building to be used for commercial purposes.The case was heard upon an auditor's report including certain maps which were put in evidence before the auditor.The single justice found the facts as stated by the auditor, and found and ruled that the amendment to the zoning ordinance was invalid in that it was not the same for zones, districts or streets having substantially the same character.He ordered the writ to issue.The case is here on exceptions of both parties to the action taken upon their requests for rulings.

The city had enacted a zoning ordinance in 1926 by which the city was divided into residential, business and industrial districts, and the height, area and use of structures in these districts were regulated.There were three grades of residential districts known as ‘A,’‘B’ and ‘C.’The Epstein lot was in a residence ‘A’ district.On September 13, 1929, the zoning ordinance was amended, and this lot, together with the adjoining lot abutting on County Street and extending to North Street, was changed from a residence ‘A’ district to a residence ‘C’ district.This changed the locus from one that was in the main an area for single family dwellings to one where dwellings accommodating three or more families were permitted.Thereafter, Epstein filed a petition in the Land Court, G.L.(Ter.Ed.)c. 185, § 1, as amended bySt.1934, c. 263, § 1, to determine the validity of the ordinance, claiming he was aggrieved in not having his land included in a business district.The Land Court by a decision rendered on March 29, 1935, dismissed the petition.

When Epstein purchased this property in 1924 there was a one-family dwelling on the lot.After the 1929amendment, Epstein moved this house to the rear of the lot, turned the house around to face Mill Street and changed it into a structure to accommodate four families.This left vacant the land at the corner of County and Mill streets.In February, 1937, Epstein petitioned the city council to change this vacant land from a residence ‘C’ district to a business district, the land measuring about ninety-six feet on County Street and one hundred and twenty feet on Mill Street.The planning board, to whom the petition was referred, held a public hearing and reported to the city council recommending that no change be made in the zoning map as the granting of the petition ‘would constitute spot zoning and would be detrimental to the best interests of the city.’The committee on ordinances held a public hearing and voted to recommend the granting of the petition.On April 8, 1937, the amendment to the ordinance was passed unanimously by the city council and the board of aldermen, and became effective upon the failure of the mayor to approve or disapprove it within ten days after it had been presented to him.The building inspector has issued to Epstein a permit for the construction of a store upon this corner lot and Epstein intends, unless the permit is revoked, to build such a structure.

County Street is one of the main thoroughfares of the city, running north and south, and for several blocks north of Mill Street both sides of the street are included in residential districts.This portion of the street has been for years a fine residential section.The original ordinance was adopted in 1926 to continue the residential atmosphere of the street as it then existed.Both sides of County Street south of the intersection of Mill Street for one half a street block is zoned for residence and then, as one proceeds southerly, both sides of the street are included in business districts.There is a most decided trend toward business in that portion of County Street, but no new business has been located on County Street for a mile or more north of the block south of Mill Street during the last twelve years.Mill Street crosses County Street and runs east and west.A large amount of traffic passes over this street between the western part of the city and Cape Cod.Both sides of Mill Street west of County Street are in residential districts.There is no demand for residential property on County Street.The Epstein lot is practically useless for residential purposes, but in all probability it can be used profitably for business.The auditor found that the zoning for business comes to a complete stop one half a block south of Mill Street and that if the ordinance as amended is valid it will be the first encroachment of business into what was designated and has remained a residential area, and he, therefore, found that the ordinance as amended, if valid, is not the same for zones, districts or streets having substantially the same character.

The General Court was empowered by art. 60 of the Amendments to the Constitution of this Commonwealth ‘to limit buildings according to their use or construction to specified districts of cities and towns.’The Legislature could itself exercise this power and establish such districts in any city or town, as it did in the case of the city of Boston, St.1924, c. 488, Bradley v. Zoning Adjustment Board of Boston, 255 Mass. 160, 150 N.E. 892, or it could delegate the power to create such local districts to the legislative branch of a city government and to the voters of a town.Spector v. Building Inspector of Milton, 250 Mass. 63, 145 N.E. 265.But the Legislature could determine the extent of the power granted to these municipalities and prescribe the terms and conditions under which it could be exercised, and action taken beyond the authority conferred or not in compliance with the terms and conditions governing its exercise would be invalid.Newton v. Belger, 143 Mass. 598, 10 N.E. 464;Winthrop v. New England Chocolate Co., 180 Mass. 464, 62 N.E. 969;Commonwealth v. Hayden, 211 Mass. 296, 97 N.E. 783;Whittemore v. Town Clerk of...