Nelson v. Town of Belmont

• Decision Date: 06 January 1931
• Citation: 274 Mass. 35
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ARTHUR T. NELSON v. TOWN OF BELMONT & another.

274 Mass. 35

ARTHUR T. NELSON v. TOWN OF BELMONT & another.

Supreme Judicial Court of Massachusetts, Middlesex.

January 6, 1931

March 6, 25, 1930.

Present: RUGG, C.

J., CARROLL, WAIT & FIELD, JJ.

Zoning. Municipal Corporations, Zoning by-law, Warrant for town meeting Officers and agents.

Equity Pleading and Practice, Waiver of defence; Master: findings; Decree Appeal; Argument before Supreme Judicial Court. Res Judicata.

The defendants in a suit in equity to restrain the enforcement of an alleged amendment to a zoning by-law of a town waived a right to contend that the plaintiff was not entitled to proceed in equity and that his sole and adequate remedy was at law by answering to the merits and going to trial before a master without raising such objection, and by not making such contentions until the hearing in this court of their appeal from a final decree.

Findings by a master without a report of the evidence before him must be accepted as true unless they are inconsistent with each other, or contradictory, or plainly wrong in view of incontrovertible facts.

Where one issue before a master, to whom was referred a suit in equity to restrain the enforcement of an alleged amendment to a zoning by-law of a town, was the determination of the zone in which the plaintiff's property was placed by the original by-law, and it appeared that the boundaries of the zones had been designated only by lines placed upon a map and that the master, to determine the location of such lines with relation to the plaintiff's land, had studied the map and had taken a view and had applied the map to the locality, his determination of such issue must be accepted as true even though it be assumed not to rest upon oral testimony of witnesses, if it is not inconsistent with or contradictory to his other findings. The provisions of G.L.c. 40, Section 27 as amended by St. 1925, c. 116,

Section 2, did not vest jurisdiction in the selectmen of a town to alter the true boundary line between two districts established by a zoning by-law of the town; and, where the zoning by-law gave them no such power, an order by them, after a hearing held upon objection to the issuance of a permit for a building in a zone proper therefor, which purported to make such an alteration as to make the issuance of the permit improper, was invalid.

A dispute having arisen as to the location of the boundary of a zone, purported to be established by a zoning by-law of a town, a planning board, within powers established by the by-law, upon petition and of its own initiative, gave a hearing and made a recommendation to the town as to the proper location of such boundary. The warrant for an annual town meeting to be held in March, 1927, contained an article,

"To see if the Town will vote to modify the existing Zoning By-law . . . by providing that the dividing line" in question "shall be the dividing line" described by metes and bounds as shown on a designated plan "as recommended by the report of the Planning Board on file . . . or in any way act thereon." A motion to adopt such recommendation was lost. An owner of land near the line in question then presented a motion to "modify the existing zoning by-law" by establishing as the dividing line in question one different from that named in the

warrant. The motion was carried.

A building permit was refused, by reason of the modification alleged thus to have been made, to one who, by bill in equity, sought to require the town authorities to grant the permit because it was proper under the original by-law. A decree for the plaintiff in such bill was entered. Upon appeal by the defendants, it was held, that

(1) The motion which was passed was not properly before the town meeting;

(2) There was no such notice as is required by G.L.c. 40, Section 30; St. 1926, c. 216, Section 1, given of the alteration stated in the motion that was passed;

(3) The concluding words of the article in the warrant for the town meeting at which the vote in question was passed, namely, "or in any way act thereon," did not justify the vote actually taken upon the new motion offered after the defeat of the action described in the warrant;

(4) The principle that warrants for town meetings are to be liberally interpreted was not applicable: it could not validate a vote changing the dividing line between two districts established by a zoning by-law of which no notice was given in the warrant for the town meeting;

(5) No modification of the dividing line as established by the by-law in its original form was established by the vote.

Entry of judgment by agreement of parties and without a hearing, that a petition for a writ of certiorari to quash action of selectmen of a town purporting to locate the boundary line of a zone described in a town by-law be dismissed, was not res judicata barring the petitioner from maintaining a suit in equity against the town and its inspector of buildings to establish his rights under the by-law to be different from those stated by the selectmen in their order.

No consideration can be given by this court to matters referred to or stated in a brief of a party which do not appear in the record before the court.

In a suit in equity to have declared void as to land of the plaintiff a vote of a town altering a zoning by-law by changing the location of a boundary line, a decree, declaring the vote "in all respects illegal and void," on appeal was ordered modified by adding the words "so far as concerns land of the plaintiff."

It appearing in a suit in equity to require the issuance to the plaintiff of a building permit which had been refused by town authorities on the ground that to issue it would be in violation of a zoning by-law, that the zoning by-law had no effect upon established and existing building line restrictions and that the subject of building line restrictions outside the zoning by-law was not involved in the suit at bar and had not been tried, it was not necessary to mention such restrictions in a decree granting the plaintiff the relief he sought.

There was no legal objection to a mandatory provision in the final decree in such suit directing the building inspector to issue a permit to the plaintiff to erect stores upon his lot after finding that his plans therefor were in conformity to the by-laws of the town.

BILL IN EQUITY, filed in the Supreme Judicial Court for the county of Middlesex on November 24, 1928, against the town of Belmont and its inspector of buildings, and described in the opinion.

The suit was referred to a master. Material facts found by the master are stated in the opinion. After the filing of the master's report, the suit was heard by Sanderson, J., by whose order there were entered an interlocutory decree confirming the master's report and a final decree ordering, adjudging and decreeing, in substance as follows:

"1. The vote passed by the town meeting of the town of Belmont on March 29, 1927, under article 49 of the warrant for the annual town meeting of said town, which vote purported 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 on the easterly side of Common Street between Trapelo Road and Palfrey Road at the southerly line of Lot 226 . . . owned by the plaintiff so that all of said land of the plaintiff should be in the general residence district, is in all respects illegal and void.

"2. The land of the plaintiff described in the bill . . . is located in a local business district under the zoning by-law of the town of Belmont as now in force and the plaintiff and his successors in title are entitled to use the same for any and all purposes or uses permitted by such zoning by-law in a local business district.

"3. The defendants . . . are forever enjoined and restrained from in any manner interfering or attempting to interfere with the use by the plaintiff, or his successors in title, of his said land for any purposes or in any manner permitted by said zoning by-law in a local business district and they are further enjoined and restrained from in any manner enforcing or seeking to enforce said vote of March 29, 1927, against the plaintiff or his successor in title.

"4. The defendant . . . building inspector . . . is enjoined and required to issue to the plaintiff a permit under the building laws of the town for the erection of a building or buildings on said land for use for the purpose of retail stores upon the presentation to him by the plaintiff of an application therefor and the determination by him that the proposed building or buildings comply with a character which may be erected and used under the provisions of the zoning by-law in a local business district."

The defendants appealed. A.L. Taylor, Town Counsel, J.W. Flett, & E.C. Parks, for the defendants, submitted a brief.

W.H. Hitchcock, for the plaintiff.

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. Tha...