Spector v. Bldg. Inspector of Milton

Decision Date18 October 1924
Citation145 N.E. 265,250 Mass. 63
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Report from Supreme Judicial Court, Suffolk County.

Petition for writ of mandamus by Samuel Spector to compel the Building Inspector of the town of Milton, G. Edward Burt, to issue a building permit for construction of a block of stores. On report. Petition dismissed.

W. A. Fotch, of Boston, for petitioner.

L. Bryant and F. Rackemann, both of Boston, for respondent.


This is a petition for a writ of mandamus to compel the respondent, the building inspector of Milton, to issue to the petitioner a building permit for the construction of a block of stores.

The petitioner on June 9, 1922, purchased land located in Milton for the purpose and with the intention of erecting thereon a one-story brick block of twelve stores. This intent was communicated to the respondent. At that time there was no zoning ordinance, so-called, in Milton, but there was a building code. According to its provisions, there must be submitted to the building inspector, before the erection of any building, a detailed description of the location, purpose and construction of the proposed structure and ‘full and complete copies of the plans of such proposed work and such structural detailed drawings as the inspector may require.’ The plans and detailed drawings must be submitted in duplicate and, if approved, one set must be kept on file in the office of the building inspector. The petitioner, on June 21, 1922, submitted an application for a permit with appropriate plans for a block of twelve stores. When suggestion was later made to the petitioner that a part of his land was subject to a building restriction, so that only eleven stores could be erected, he filed on June 29, 1924, a ground floor plan of his proposed building on a single sheet, showing eleven instead of twelve stores. No full set of plans in duplicate was filed and no modification was made by the petitioner of his application for a permit changing the number of stores from twelve to eleven. The petitioner's land was in truth subject to a private building restriction of public record. Apparently with due observance of this restriction only eleven stores could be erected.

The building code provided that it was the duty of the inspector ‘to approve or reject any plans filed with him * * * within a reasonable time and within ten (10) days in any event, and no work shall be commenced until a permit is issued.’ The respondent did not approve the plans or act on the application for permit or plans until after the adoption of the by-law hereinafter referred to, when he returned them to the petitioner without comment.

Immediately after the purchase by the petitioner and the knowledge by the selectmen of Milton of the petitioner's purpose to erect stores on his land, the selectmen of Milton determined to prevent the execution of such purpose. They directed the respondent not to issue any permit and to deliver to them any application and plans which might be filed by the petitioner. After his application and plans were filed with the respondent, the selectmen took and kept possession of them until after the adoption of the zoning by-law, to which reference will presently be made. They and the respondent, with the intention of delaying the petitioner until after the zoning by-law could be presented to a town meeting for adoption suggested to him as a subterfuge the existence of the building restriction as preventing the permit for twelve stores. They did not tell him of the proposed zoning by-law until after it was adopted. The respondent, although knowing that he was not subject to the direction of the selectmen in the performance of his duties under the building code, nevertheless determined to obey them and not to issue a permit to the petitioner until ordered to do so by them. He did not issue any permit.

The selectmen, with the intent to forestall the granting of a permit to the petitioner, caused to be drafted a zoning by-law, dividing the territory of the town of milton into three districts, designated A, B, C. Districts B and C cover territory comparatively small in area, and in fact devoted to business purposes. No restrictions were imposed on these districts. By far the larger part of the area of the town was comprehended in district A, including the land of the petitioner. Within that district there was strict prohibition of the erection or alteration or use of any building for a store or shop or for manufacturing, industrial, trading or commercial purposes, or for any purpose except a dwelling for one of more families, a hotel, lodging or boarding house, a club, a church, school or academy, and certain other specified purposes and purposes necessary and incidental to these permitted purposes. A further exception permitted the continuance of the use of existing buildings being used at the time of the adoption of the zoning by-law for purposes otherwise forbidden in district A. There was provision, also, for the issuance of permits for additions to or extensions and replacements of such buildings after public hearing and determination by the selectmen as to the existence of certain facts.

The zoning by-law was recommended by the unanimous report of the warrant committee of the town, adopted at a special town meeting, held pursuant to a legal warrant, copy of which was delivered at each house in the town and printed in a newspaper published in the town, approved by the Attorney General in accordance with the statute, delivered to the inhabitants as required by law, and went into effect, if valid, on July 11, 1922. The town meeting, at which the zoning by-law was presented, was exceptionally large for Milton and the vote in favor of its adoption was unanimous.

No question is made by the petitioner but that there was compliance with all formalities prerequisite to the passage of the zoning by-law. His contention is that the by-law itself is invalid and that he is entitled to a building permit notwithstanding its provisions.

The constitutional questions which have been argued are settled by Building Inspector of Lowell v. Stoklosa, 248 Mass. --, 145 N. E. 262, this day decided. It there has been held that article 60 of the Amendments to the Constitution of this commonwealth, which expressly authorizes the general court to limit buildings according to their use or construction to specified districts of cities and towns, is not in contravention of any guaranty of the Constitution of the United States. It further has been there decided that G. L. c. 40, §§ 25-30, both inclusive, enacted pursuant to the authority of article 60 of the Amendments, conform to the requirements of the Constitution of this commonwealth and of the United States. See Opinion of the Justices, 234 Mass. 597, 127 N. E. 525.

The zoning by-law of Milton here assailed does not in its provisions exceed the power conferred by the statute and is in harmony with its requirements. The statute in express terms provides that, in the establishment of districts, buildings to be used for particular industries, trades, manufacturing or commercial purposes may be restricted to certain areas and excluded from other parts of the municipality. The mandate of the statute is that the establishment of such districts shall be ‘in such manner as will best promote the health, safety, convenience and welfare of the inhabitants, will lessen the danger from fire, will tend to improve and beautify the city or town, will harmonize with its natural development,’ and that ‘due regard shall be paid to the characteristics of the different parts of the city or town.’

The special facts with respect to Milton in this connection are that it is a very old town of about 10,000 inhabitants. It is bounded on the north by Boston and on the south by the Metropolitan Park known as the Blue Hills Reservation. There is little about the town that bears a commercial, industrial or manufacturing aspect. The only business sections are East Milton and Milton Lower Mills, each very small in area and each on an extreme edge of the town, constituting respectively districts B and C. Two branches of the New York, New Haven & Hartford Railroad are on or near the boundaries of the town, one...

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