Slack v. Bldg. Inspector of Town of Wellesley

• Decision Date: 02 March 1928
• Citation: 262 Mass. 404,160 N.E. 285
• Parties: SLACK et al. v. BUILDING INSPECTOR OF TOWN OF WELLESLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

262 Mass. 404

160 N.E. 285

SLACK et al.

v.BUILDING INSPECTOR OF TOWN OF WELLESLEY.

Supreme Judicial Court of Massachusetts, Norfolk.

March 2, 1928.

Report from Supreme Judicial Court, Norfolk County.

Petition by Mary E. Slack and others for a writ of mandamus to compel the building inspector of the town of Wellesley to issue a building permit. Petition dismissed, and the case reported to the Supreme Judicial Court. Order dismissing petition affirmed.A. S. Allen, of Boston, for petitioners.

C. A. Bunker, of Boston, for respondent.

RUGG, C. J.

This is a petition for a writ of mandamus whereby it is sought to compel the building inspector of the town of Wellesley to issue to the petitioners a permit for the erection of a building. The petitioners confessedly own the land described in their petition and have complied with all provisions of the building by-laws of the town as to filing plans and specifications of the proposed building prerequisite to the issuance of the permit, except that their plans show that the building would extend to the sidewalks of adjacent streets. In this particular alone the plans and specifications are not in conformity to a provision of the building by-law of the town of the following tenor:

‘All first or second class buildings shall be placed at least 40 feet away from center line of any adjacent street; all third class buildings shall be placed at least 50 feet from the center line of any adjacent street.’

The petitioners contend, however, that this by-law is not valid as applied to the location of a building on their land because in effect it establishes a building line, which is not within the purview of G. L. c. 143, § 3, and which can only be done in accordance with G. L. c. 82, § 37. There has been no compliance with the requirements of the latter statute. The single issue to be decided is the validity of this by-law. It was adopted and approved in all respects in accordance with formalities prescribed for a by-law under G. L. c. 143, § 3. So far as pertinent to the present case, the words of G. L. c. 143, § 3, are: ‘Every * * * town * * * may, for the prevention of fire and the preservation of life, health and morals, by * * * by-laws consistent with law and applicable throughout the whole or any defined part of its territory, regulate the inspection, materials, construction, alteration, repair, height, area, location and use of buildings and other structures within its limits, * * *’

-with exceptions and penalties not now relevant. The general features of this section first were enacted by St. 1872, c. 243; but the words ‘height, area, location’ were added by St. 1912, c. 334.

Plainly, as matter of interpretation, the by-law here assailed is within the scope of this enabling statute. To provide that buildings of the designated classes must be placed at least specified distances from the center line of adjacent streets constitutes a regulation of the location of buildings on land abutting on streets. The by-law does not go beyond the authority conferred by the words of the statute. It is a statute enacted in the exercise of the police power. Salem v. Maynes, 123 Mass. 372;Spector v. Building Inspector of Milton, 250 Mass. 63, 71, 145 N. E. 265. Apparently the by-law was adopted to aid in the prevention of fires and not as a setback line. It could have been adopted only to accomplish the ends described in the statute, no one of which is the establishment of a building setback line. The by-law is constitutional as thus interpreted, even though no provision is made for the payment of damages to owners of property injured thereby. Gorieb v. Fox, 274 U. S. 603, 47 S. Ct. 675, 71 L. Ed. 1228.

The main contention of the petitioners is that the word ‘location’ in said section 3 must be held to have a narrow and constricted meaning, not including in any aspect or in any result a setback from a street line, because of the terms of G. L. c. 82, § 37. The pertinent words of that section are:

‘If * * * a town accepts this section or has accepted corresponding provisions of earlier laws, a building line not more than forty feet distant from the exterior line of a highway or town way may be established in the manner provided for laying out ways, and thereafter no structures shall be erected or maintained between such building line and such way [with exceptions not here relevant]. Whoever sustains...