Town of Lexington v. Bean

• Decision Date: 02 October 1930
• Citation: 172 N.E. 867,272 Mass. 547
• Parties: TOWN OF LEXINGTON v. BEAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

272 Mass. 547

172 N.E. 867

TOWN OF LEXINGTON

v.BEAN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Oct. 2, 1930.

Appeal from Superior Court, Middlesex County; F. J. Hammond, Judge.

Suit by the Town of Lexington against Louisa G. T. Bean and others. From interlocutory decree overruling plaintiff's exception to master's report, and from final decree dismissing bill, plaintiff appeals.

Interlocutory decree affirmed, final decree reversed and rendered.S. R. Wrightington, of Boston, for appellant.

W. J. Bannan and J. L. Harvey, both of Waltham, for appellees.

FIELD, J.

By this suit in equity the town of Lexington seeks to restrain the defendant Bean, the owner of certain premises in said town, and the defendant Perkins, the tenant of a part thereof, from violating the zoning by-law of the town. The case was referred to a master who filed a report. An interlocutory decree was entered overruling the plaintiff's exception thereto and confirming the report, and a final decree dismissing the bill with costs. From these decrees the plaintiff appealed.

Under the zoning by-law of the town, adopted under G. L. c. 40, § 25, at a town meeting held on March 17, 1924, the premises in question were in a residence district, described as an ‘R. 2’ or ‘two-family dwellings' district. According to its terms it took effect upon publication, May 2, 1924. By an amendment adopted at a town meeting held June 28, 1928, the district was changed to an ‘R. 1’ or ‘one-family dwellings' district. The premises were conveyed to the defendant Bean on November 16, 1923. The buildings thereon consisted of a single dwelling house, occupied by the defendant Bean and her family, a barn and two sheds, and another building known as the ‘shop,’ ‘about 24x30 feet; two stories in height with a flat roof.’ ‘March 9, 1928 the defendant Bean orally let to the defendant Perkins the shop at a rent of twenty dollars per month,’ and thereafter it was used by him for a ‘general automobile repair shop.’ Since he rented it he ‘has on an average repaired cars of other persons for pay, one a day in this shop.’ ‘When [the defendant] Perkins hired the premises, the defendant Bean knew that he intended to use them for the purposes for which he has used them and consented to the same, and * * * has known of the use * * * [he] has made of the premises.’ The use of the shop by the defendant Perkins does not conform to the provisions of the zoning by-laws applicable either to an ‘R. 1’ or an ‘R. 2’ district.

1. The defendants contend that the original by-law was not adopted legally for the reason that sufficient notice and opportunity for hearing were not given. This contention is unsound.

There was no statutory requirement of notice or opportunity for hearing except the general provision that a town meeting ‘shall be called in pursuance of a warrant, * * * notice of which shall be given at least seven days before such meeting’ and that ‘no action shall be valid unless the subject matter thereof is contained in the warrant.’ G. L. c. 39, § 10. This requirement was complied with. The provision of G. L. c. 40, § 26, that no zoning ‘ordinance shall be enacted * * * in any city until after a public hearing,’ of which at least thirty days' notice had been given, does not apply to a town. The use of the word ‘ordinance’ and the context generally indicate that the word ‘city’ is used in its strict sense. Moreover, ‘town’ rather than ‘city’ is the generic word which refers both to cities and to towns. G. L. c. 4, § 7, cl. 34. The words ‘town’ and ‘by-laws' are coupled with the words ‘city’ and ‘ordinances,’ respectively, in other sections dealing with zoning regulations when towns as well as cities are intended to be included. See G. L. c. 40, §§, 25, 27, 29 and 30. Obviously a town meeting and the notice thereof were considered the equivalent in a town of the hearing and notice required in a city by section 26. See In re Opinion of the Justices, 234 Mass. 597, 606, 127 N. E. 525. G. L. c. 40, § 30, as amended by St. 1922, c. 40 (see now St. 1929, c. 39), providing that ‘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’ was not applicable to the original passage of zoning by-laws.

There is no valid objection to the by-law on constitutional grounds because of lack of notice and opportunity to be heard. See In re Opinion of the Justices, supra. The defendants can raise this question only as they are affected by the alleged irregularity. See McGlue v. County Commissioners, 225 Mass. 59, 60, 113 N. E. 742, and cases cited. Here they are strangers to the grievance. Lampasas v. Bell, 180 U. S. 276, 284, 21 S. Ct. 368, 45 L. Ed. 527. The defendant Perkins at the time the by-law was adopted had no interest in the premises and, consequently, none in the restrictions placed thereon. The defendant Bean was then a registered voter in the town. She had notice of the warrant for the town meeting of March 17, 1924, containing the subject matter of the proposed by-law and opportunity to be heard at that meeting as well as notice of hearing by committees and opportunity to be heard at such hearings. Moreover, notice and opportunity for hearing prior to the passage of the by-law were not essential to its constitutionality. The by-law was quasi legislative in character, passed in the exercise of the police power. In re Opinion of the Justices, 234 Mass. 597, 603-605, 127 N. E. 525;Inspector of Buildings of Lowell v. Stoklosa, 250 Mass. 52, 59, 145 N. E. 262;Brett v. Building Commissioner, 250 Mass. 73, 76, 145 N. E. 269;Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 387, 397, 47 S. Ct. 114, 71 L. Ed. 303, 54 A. L. R. 1016;Seattle Title Trust Co. v. Roberge, 278 U. S. 116, 120, 121, 49 S. Ct. 50, 73 L. Ed. 210. The constitutional requirements are satisfied if adequate opportunity is given after the passage of such a by-law to contest its validity and its application to the property purporting to be affected by it. See Salem v. Eastern Railroad Co., 98 Mass. 431, 443,96 Am. Dec. 650;Nelson v. State Board of Health, 186 Mass. 330, 333, 334, 71 N. E. 693;Commonwealth v. Sisson, 189 Mass. 247, 253, 254, 75 N. E. 619,1 L. R. A. (N. S.) 752, 109 Am. St. Rep. 630;Chicago, Burlington & Quincy Railroad v. Nebraska, 170 U. S. 57, 76, 18 S. Ct. 513, 42 L. Ed. 948;New York Health Department v. Rector, etc. of Trinity Church, 145 N. Y. 32, 47,39 N. E. 833,27 L. R. A. 710. This suit furnishes such an opportunity to these defendants.

2. The defendants contend that the by-law is invalid because unreasonable in that it so restricts the districts into which the town is divided to particular industries as to exclude certain harmless occupations from the town. The by-law, however, does not exclude from the town the use of buildings as automobile repair shops, the use made of the building in question. Such use is provided for specifically in the ‘C. 1’ or ‘retail stores, offices, etc.’ districts and ‘M. 1’ or ‘light manufacturing’ districts and no facts are found which indicate that the restriction of such shops to these districts is unreasonable. See Inspector of Buildings of Lowell v. Stoklosa, 250 Mass. 52, 60, 145 N. E. 262;Spector v. Building Inspector of Milton, 250 Mass. 63, 67, 145 N. E. 265.In the absence of findings the case differs from Nectow v. Cambridge, 277 U. S. 183, 48 S. Ct. 447, 72 L. Ed. 842. The defendants, therefore, are not affected adversely by the alleged irregularity and cannot attack the validity of the by-law on this ground. McGlue v. County Commissioners, supra; Thomas Cusack Co. v. Chicago, 242 U. S. 526, 530, 37 S. Ct. 190, 61 L. Ed. 472, L. R. A. 1918A, 136, Ann. Cas. 1917C, 594;In re Wulfsohn v. Burden, 241 N. Y. 288, 303, 150 N. E. 120, 43 A. L. R. 651. Moreover, the by-law, after providing expressly for a large number of uses, authorized the selectmen ‘in a specific case’ to ‘permit in any district any use obviously intended, because harmonious, compatible, accessory, or necessary for public convenience, but which has not been specifically...