Moulton v. Building Inspector of Milton

• Court: Supreme Judicial Court of Massachusetts
• Citation: Moulton v. Building Inspector of Milton, 312 Mass. 195, 43 N.E.2d 662 (Mass. 1942)
• Decision Date: 09 September 1942
• Parties: EDWARD L. MOULTON & others v. BUILDING INSPECTOR OF MILTON.

312 Mass. 195

43 N.E.2d 662

EDWARD L. MOULTON & others v. BUILDING INSPECTOR OF MILTON.

Supreme Judicial Court of Massachusetts, Norfolk.

September 9, 1942

May 5, 1942.

Present: FIELD, C.

J., DONAHUE, QUA DOLAN, & COX, JJ.

Zoning. Milton.

Agriculture. Silo. Words, "Agricultural use.

"

A silo located upon a farm in a residential district, to which fodder grown on other lands controlled by the farmer was brought for storage and feeding to cattle kept on the farm, was an "agricultural use" as permitted in that district by the town's zoning by-law, although the silo was substantially detrimental to the neighboring residential property.

PETITION for a writ of mandamus, filed in the Superior Court on October 16, 1941.

The case was heard by Dowd, J., who ordered the writ to issue. All parties alleged exceptions.

L. Bryant, for the respondent.

F. B. Frederick (H.

G. Perkins with him,) for the petitioners.

QUA, J. The petitioners pray for a writ of mandamus to compel the respondent to revoke a permit granted by him to Harriet M Manning for the erection of a silo on a lot of land of which Mrs. Manning holds the title in the "Wendell Park" development in Milton and for further relief. The trial judge adopted as true the findings of fact of the auditor, and must be taken for the purposes of this decision to have rejected other evidence received at the trial in so far as it may have been more favorable to the respondent than those findings. He ordered the writ to issue.

Material findings of the auditor will here be stated. The lot upon which the silo has now been completed is zoned under a zoning by-law of the town in a "Residence C" district. The by-law provides that in such a district "no building or land shall be used and no building shall be erected or altered which is intended or designed to be used for a store or shop or for manufacturing or commercial purposes, or for other purposes except one or more of the following: 1. Detached one-family dwelling; 2. Church; 3. Educational use, not conducted for profit; 4. Agricultural use, selling only produce raised on the premises; 5. Municipal use. Public parks, playgrounds, recreation buildings, water towers and reservoirs; 6. Accessory use on the same lot with and customarily incident to any of the above permitted uses . . . ." We need not quote the remainder of this section of the by-law relating to several additional uses not of an ordinary commercial or industrial character which are permitted conditionally, since none of them could include a silo. It is provided, with some qualifications, that nonconforming uses existing when the by-law was adopted may be continued but not extended.

The petitioners reside in single family houses fronting on Wendell Park. This is a way, part of which is public and part of which is private, consisting of two roadways with a "park reservation" one hundred feet wide between them. Harriet M. Manning, to whom the permit for the silo was issued, has since the year 1900 conducted with her husband a "dairy enterprise" known as Thatcher Farm on about one and a half acres of land on Thatcher Street, adjoining the rear of lots 41 to 46 of the Wendell Park development. Mrs. Manning holds the title to these lots. Thatcher Farm is also in a residence C district. The Mannings reside at Thatcher Farm in a house facing Thatcher Street. Along the back line of the Thatcher Farm property a long, low cow barn accommodates about one hundred sixty cows, together with a pasteurizing and bottling plant. On Thatcher Farm are also a garage, hay sheds, and two silos. There is a small garden used to grow vegetables for the Manning family, and the rest of the tract consists of yards and driveways. Two bulls, four horses and about fifty hens are kept there, as well as farm carts, tractors, trucks and other incidental equipment. From twenty-two hundred to twenty-four hundred quarts of milk a day are produced and sold and delivered by drivers on several routes, and some sales of milk and eggs are made at Thatcher Farm. The cows giving milk are kept continuously in the barn, but those that are becoming dry and the calves are pastured on the other lands to which we next refer. The Mannings have arrangements with property owners in various parts of Milton for the use of about two hundred tracts of land of such owners, all in residence districts, for pasturing cattle and for growing hay, corn, other fodder, and vegetables. The nearest of them is about a quarter of a mile from Thatcher Farm, but many of them are a mile and a half or more distant. The hay, corn and other fodder grown on these lands is fed to the cattle at Thatcher Farm, and most of the manure produced at Thatcher Farm is used on these outlying lands. Some of the vegetables grown on these lands are sold at Thatcher Farm.

In August, 1941, the Mannings found that their crop of corn raised on these scattered lots was too large to be stored in the two silos at Thatcher Farm and decided to build the additional silo here in question on the adjoining lot 43 of the Wendell Park property. The permit was issued for its construction. The sole purpose of erecting and maintaining this silo was to store fodder to be fed to cattle kept by the Mannings at Thatcher Farm, and all the fodder so stored, so far as appears, is raised by the Mannings on the other lands controlled by them, but nothing is raised on their Wendell Park lots. The erection and use of the silo are substantially detrimental to the use of lots in Wendell Park for residential purposes and have diminished the value of many of the lots and the houses upon them.

The exemption from the operation of the zoning by-law of any "agricultural use, selling only produce raised on...