Nelson v. Town of Belmont

• Decision Date: 12 January 1931
• Citation: 274 Mass. 35,174 N.E. 320
• Parties: NELSON v. TOWN OF BELMONT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 35

174 N.E. 320

NELSON

v.TOWN OF BELMONT et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 12, 1931.

Appeal from Supreme Judicial Court, Middlesex County.

Suit by Arthur T. Nelson against the Town of Belmont and another. From a decree for plaintiff, defendants appeal.

Decree modified, and, as modified, affirmed.A. L. Taylor, Town Counsel, and J. W. Flett, and E. C. Parks, all of Boston, for appellants.

W. H. Hitchcock, of Boston, for appellee.

RUGG, C. J.

The plaintiff seeks by this suit in equity to restrain the enforcement of an alleged amendment to the zoning by-law of the town of Belmont so far as it affects certain land owned by him. The defendants answered to the merits. The case was referred to a master under the usual rule requiring him to hear the parties and their evidence, and to find and report the facts. The master has filed a comprehensive report covering the issues raised. An interlocutory decree was entered overruling the exceptions to and confirming the master's report, from which there was no appeal. A final decree was entered granting relief. The appeal of the defendants brings the case here.

The defendants have urged that the plaintiff is not entitled to proceed in equity, and that the sole and adequate remedy for his alleged wrongs was at law. That defense is not open at this time. Apparently it never was raised until the argument before the full court. It must be held to have been waived by answering to the merits and by going to trial before the master without objection. Bauer v. International Waster Co., 201 Mass. 197, 200, 201, 87 N. E. 637;Reynolds v. Grow, 265 Mass. 578, 164 N. E. 650, and cases there reviewed. Radway v. Selectmen of Dennis, 266 Mass. 329, 336, 165 N. E. 410. There was resort to equity without objection in Nectow v. Cambridge, 260 Mass. 441, 157 N. E. 618;Euclid v. Ambler Realty Co., 272 U. S. 365, 386, 47 S. Ct. 114, 71 L. Ed. 303, 54 A. L. R. 1016. See, also, Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 3, 107 N. E. 426, Ann. Cas. 1917A, 145;McArthur v. Hood Rubber Co., 221 Mass. 372, 374, 109 N. E. 162.

[2] There is no report of the evidence. Therefore the findings of the master must be accepted as true unless they are inconsistent with each other, or contradictory, or plainly wrong in view of incontrovertible facts. Glover v. Waltham Laundry Co., 235 Mass. 330, 334, 127 N. E. 420;Prudential Trust Co. v. Brown (Mass.) 171 N. E. 42.

The master has found that, prior to April 1, 1926, the defendant town had adopted a zoning by-law pursuant to authority conferred by G. L. c. 40, §§ 25-30, both inclusive, and acts in amendment thereof. Thereby the territory of the town was divided into four zones, designated as single residence districts, general residence districts, local business districts and general business districts. No attack is made upon the validity of this zoning by-law as originally adopted. On or about April 1, 1926, the plaintiff bought a lot of land on Common street in the defendant town. Prior to that purchase, he made with reference to this lot a careful examination of the zoning by-law of the town and of its accompanying map purporting to show the precise boundaries of the several districts into which the town had been zoned, and studied the situation on the ground. He conferred with local real estate brokers. There was unanimity of opinion that the lot was zoned in a local business district. The plaintiff reached that conclusion. Accordingly, he made the purchase. Apparently the exact location of the zoning line between a local business district and a general residence district, with respect to the land purchased by the plaintiff, was not clear beyond peradventure on superficial examination because of a possible indefiniteness in the zoning map. The master has found, after careful study of the zoning map and examination of the locality and interpretation of the map in the light of his observations on the face of the earth, that the land of the plaintiff was included within a local business district. It is not necessary to discuss the zoning map in detail because it was applied to the locus in connection with the view by the master, whose determination in this particular must be accepted as true even though it be assumed not to rest upon oral testimony of witnesses. Commonwealth v. Dascalakis, 246 Mass. 12, 29, 30, 140 N. E. 470. Scrutiny of the record and of the copy of the plan does not warrant disturbance of this finding.

In September, 1926, the building inspector of the defendant town notified the plaintiff that his application for a permit to erect a block of stores on his land would be granted, but shortly afterwards he notified the plaintiff that, because of objection filed, the selectmen would give a hearing on the matter. Such hearing was held and the selectmen then made an order establishing as the boundary between the local business district and the general residence district a line whereby the land of the plaintiff would be in the general residence district and not in the local business district. This order of the selectmen could have no effect in altering the true boundary line between these two districts established by the zoning by-law, as found by the master. There is nothing in the record, the zoning by-law, or the statutes, vesting jurisdiction over such a matter in the selectmen. The provisions of G. L. c. 40, § 27, as amended by St. 1925, c. 116, § 2, do not extend so far. No attempt appears to have been made to proceed under section 27A, added to G. L. c. 40 by St. 1924, c. 133.

The planning board of the defendant town was empowered by the zoning by-law, upon petition or of its own initiative, to hold a public hearing after specified notice ‘for the consideration of amendments altering the boundaries of any district hereby established * * * and to submit to the town for action its recommendations in regard to the same.’ Pursuant to this authority, both upon a petition and upon its own initiative, the planning board gave a hearing on changing the boundary of these zoning districts affecting land of the plaintiff. The plaintiff was heard, as were other owners of land in the vicinity, before the planning board. Such hearing and any recommendation by the planning board were voluntary and under the by-law and did not arise from deputization by a town meeting with respect to some specified subject before it for action.

The warrant for the annual meeting of the defendant town held in March, 1927, contained an article, ‘To see if the Town will vote to modify the existing Zoning By-Law as heretofore adopted by the town by providing that the dividing line between the general residence district and the local business district’ in the neighborhood in question ‘shall be the dividing line between Lots 225 and 226 as shown on plan, on file in the town clerk's office, for the distance of one hundred feet easterly from Common street, measured at right angles from said Common street, as recommended by the report of the planning board on file in the town clerk's office, or in any way act thereon.’ The proposed dividing line described in this article and recommended by the planning board placed all the front part of the plaintiff's land in the local business district. When this article came up for consideration at an adjournment of the annual town meeting, the plaintiff and his counsel were present. The counsel asked to be heard in behalf of the plaintiff, but permission was refused. The plaintiff himself, not being a resident of the town, because of that refusal did not ask to be heard personally. A motion to adopt the recommendation of the planning board was lost. Immediately thereafter, an owner of nearby land in the general residence district presented a motion to ‘modify the existing zoning by-law of the town by establishing the dividing line between the general residence district and the local business district’ by a defined line whereby the land of the plaintiff would be indubitably within the general residence district. That motion was passed by a vote of 130 to 34. The master further found that the land of the plaintiff here in issue was not suitable for purposes of residence and was plainly of the class usable for local business purposes.

[4][5][6] The question for decision upon this branch of the case is whether the alteration of this dividing line voted by the town meeting was legally adopted and the zoning by-law thereby lawfully amended and altered. It is provided by G. L. c. 40, § 30, as finally amended by St. 1926, c. 216, in force at the time of the events here under review (see now St. 1929, c. 39): ‘No ordinance or by-law enacted under section twenty-five shall be repealed or modified except after reasonable notice of the proposed repeal or modification and an opportunity to the objectors to be heard thereon.’ This requirement must be interpreted in the light of the essential design of the zoning statute and of every by-law adopted pursuant to its terms. That design is to stabilize and to standardize the uses of real estate in specified districts for the promotion of the public health, the public safety, the public morals and, in a somewhat strict sense, the public welfare. Kane v. Board of Appeals of Medford (Mass.) 173 N. E. 1. The manifest aim of this section is to permit alterations in the boundaries of districts thus established only after such full notice as shall enable all interested persons to know...