Locatelli v. City of Medford

• Decision Date: 14 September 1934
• Citation: 287 Mass. 560,192 N.E. 57
• Parties: LOCATELLI v. CITY OF MEDFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 560

192 N.E. 57

LOCATELLI

v.CITY OF MEDFORD.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 14, 1934.

Report from Superior Court, Middlesex County; Gibbs, Judge.

Petition by John E. Locatelli against the City of Medford for assessment of damages. On report from the superior court.

Judgment for the respondent.

J. S. Calese, of Somerville, for petitioner.

L. H. Peters, of Boston, for respondent.

RUGG, Chief Justice.

This is a petition for the assessment of damages alleged to have arisen from a taking of real estate and the right to use real estate. The case was heard upon an agreed statement of facts and upon certain undisputed evidence in addition. The essential facts in their aspect most favorable to the petitioner might have been found by the jury to be these: The petitioner acquired title to the land in question in 1931 and has since been the owner. He is the holder of valid assignments from all those who have held the record title to the land since October, 1924. On October 23, 1924, the city of Medford issued to the owner a permit to store and keep for sale on the land inflammable compounds including gasoline with the right to maintain two underground tanks. This permit ran for one year and a similar permit has been issued each year until the present. On October 28, 1924, the commissioner of buildings of the respondent issued a permit to erect a brick gasoline station building on the land. In reliance upon these permits the tanks were forthwith installed and sales of gasoline made. Building operations were commenced to the extent that a portion of the foundation of the proposed building was laid but work was stopped by action of the metropolitan district commission for reasons not pertinent to the present proceeding. The obstacle thus raised was not removed until September 11, 1925. In that month the location of the proposed building was changed and a new foundation was again in process of construction when work was stopped because it constituted a violation of the zoning ordinance of the city. There was no valid zoning ordinance at the time of the granting the first permit but one was duly passed and became effective on October 28, 1925. By its terms the land in question was restricted to single residences. Unsuccessful efforts were made to have the zoning ordinance changed and to vary the application of that ordinance. All these efforts having failed, building operations were resumed under the old permits in May, 1928, but were stopped by a temporary injunction issued in a suit brought against the owner of the land by the building commissioner of the city. In July, 1929, the board of appeals authorized a variance in the application of the zoning ordinance so as to permit the erection of the gasoline station and in consequence a new building permit was issued. That action of the board of appeals was declared void by certiorari proceedings in Kane v. Board of Appeals of City of Medford, 273 Mass. 97, 173 N. E. 1, decided in October, 1930. In August, 1929, the injunction issued in the suit of the building commissioneragainst the owner of the land was dissolved and the erection of the filling station was soon completed. No rights were claimed under the permit issued by the board of appeals and involved in Kane v. Board of Appeals of City of Medford, 273 Mass. 97, 173 N. E. 1. When the petitioner purchased the property in March, 1931, the...