Nectow v. City of Cambridge
| Decision Date | 08 July 1927 |
| Citation | 260 Mass. 441,157 N.E. 618 |
| Parties | NECTOW v. CITY OF CAMBRIDGE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Supreme Judicial Court, Suffolk County.
Suit by Saul M. Nectow against the City of Cambridge and others. On report. Bill dismissed.
J. E. Hannigan and M. L. Orloy, both of Boston, for plaintiff.
P. J. Nelligan, City Sol., of Boston, for defendants.
[1] This is a suit in equity whereby the plaintiff seeks relief from the terms of a zoning ordinance as to certain of his land. It is not now questioned that the ordinance is valid so far as concerns the formalities of its adoption. See St. 1925, c. 87. The plaintiff at times here material was the owner of a tract of land in Cambridge containing about 140,000 square feet. It was situated on the southeasterly corner of Brookline street and Henry street. Its frontage on Brookline street, a main avenue of travel, was about 305 feet, and on Henry street about 750 feet. It was somewhat irregular in shape narrowing toward the rear or easterly end, where it was bounded by the Grand Junction branch of the Boston & Albany Railroad. Along the southerly side, being about 800 feet in length, is a 25-foot passageway designed for a spur track from the Grand Junction branch. By the zoning ordinance the land here in question and hereafter called the locus, being that part of the larger tract directly on the corner of Brookline street and Henry street, and containing about 29,000 square feet, was placed in the district designated as a ‘residence use district’ and in a building district described as ‘R 3,’ while the remainder of the tract, containing approximately 111,000 square feet and including the entire passageway, was placed in the district designated ‘unrestricted,’ and in a building district described as ‘U 3.’ The locus, thus placed in a residence use district, has a frontage of about 305 feet on Brookline street, its westerly boundary, 100 feet on Henry street, its northerly boundary, and bounds easterly on the remainder of the tract about 264 feet, and southerly on land of the Ford Motor Company about 75 feet.
The plaintiff's entire tract of land was vacant except that upon the part placed in the unrestricted district were a brick factory building and a dwelling house, since torn down to make way for a concrete warehouse erected subsequent to the passage of the ordinance. On the part restricted to residential uses, there was a dilapidated and abandoned mansion house formerly occupied as a residence by one Clark, the well-known maker of astronomical telescopes. That house faced on Brookline street and was for sale for many years for residential purposes. It has since been destroyed or taken down.
The land of the plaintiff at the time of the enactment of the zoning ordinance was free of all restrictions and available for every valuable use. The locus placed in the R 3 zone has never been used for any other than residential purposes. The remainder of the tract has always been vacant except for the dwelling house and factory to which reference has been made. The locus, by being in a residence use district under the zoning ordinance, may be used only for ‘dwellings, hotels, clubs, churches, schools, philanthropic institutions, greenhouses and gardening, with customary incident accessory uses,’ and the following uses are expressly prohibited:
It has been assumed in the argument that as a practical matter there are no restrictions imposed by the zoning ordinance upon the remainder of the plaintiff's tract of land.
The contention of the plaintiff is that the zoning ordinance as to the locus is unreasonable, an indefensible invasion of his rights, deprives him of the equal protection of the laws, and takes his property without due process of law.
The facts bearing upon these contentions are set forth in the master's report. There are three districts established by the zoning ordinance so far as here material, namely, unrestricted districts, business districts, and residence districts.
The surroundings of the locus as disclosed by the master's report are that directly opposite on Brookline street are located several well-kept single houses, and directly opposite on Henry street are single and double wooden dwellings, all in good condition and well kept, and all in the same residential district as the locus. Diagonally across Brookline street from the locus and on the corner of Henry street is a public park, called Hastings Square. Adjoining the plaintiff's land on the south is the assembling factory, six stories in height, of a motor car company. Its plant occupies a large area. About 575 men are there employed. Many automobiles are produced, most of which are shipped by freight and some are driven away. A part of the work done in this factory is noisy, and it is sometimes run at night. The Grand Junction branch passes within 600 feet of the locus. East and northeast of the plaintiff's land lies a substantial manufacturing district. The plaintiff's land is close to the business area, and it is difficult if not impossible to differentiate the material and dominant characteristics of the automobile factory and the plaintiff's other adjoining land from those of the locus.
Shortly before the passage of the ordinance, the plaintiff had made a contract with a business company for the sale of about 51,000 square feet of land, including the locus, at substantially $1.24 per foot. After the passage of the ordinance, this company refused to accept the deed because of the zoning restrictions therein contained. Shortly after the passage of the ordinance, the plaintiff sold to a company engaged in the wholesale grocery business about 24,000 square feet of his remaining large tract of land for $30,000. On this land has been erected a concrete warehouse two stories in height. This is located about 370 feet from Brookline street. Within about 750 feet of the locus is a soap factory, from which emanate bad odors. There is a greater demand for the locus for business purposes, including manufacturing, than for dwelling houses. No dwelling house has been erected in its immediate vicinity within the last 20 years, except one apartment house. Separated by Brookline street from the locus is a district lying west and north covering a large area used almost exclusively for residential purposes and included by the ordinance in residential districts. The locus as zoned is worth about $8,000.
Specific findings of the master are:
‘Seemingly, it would not be financially advisable to build apartment houses on the locus.’
‘I am satisfied and I find as a fact that no practical use can be made of the land in question for residential purposes, because, among other reasons herein related, there would not be adequate return of the amount of any investment for the development of the property.’
‘I am satisfied that the districting of the plaintiff's land in a residential district would not promote the health, safety, convenience and general welfare of the inhabitants of that part of the defendant city, taking into account the natural development thereof and the character of the district and the resulting benefit to accrue to the whole city and I so find.’
Allegations in the bill, to the effect that the city council of...
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