Town of Lexington v. Govenar
| Decision Date | 02 July 1936 |
| Citation | 295 Mass. 31,3 N.E.2d 19 |
| Parties | TOWN OF LEXINGTON v. GOVENAR. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Suit in equity by the Town of Lexington against David H. Govenar. From a final decree sustaining the bill, defendant appeals.
Affirmed.
Appeal from Superior Court, Middlesex County Williams, Judge.
D. H Govenar, of Boston, pro se.
S. R Wrightington, of Boston, for appellee.
This is a suit in equity brought by the town of Lexington against David H. Govenar, the owner of certain premises in said town, to enjoin the maintenance of a sign and the use of his residence as a professional office for the practice of law.
The bill alleges that the plaintiff has duly adopted a zoning by-law whereby in R. 1 districts, mainly confined to single family residences, only the following signs are permitted. ‘ Real estate signs of not over six square feet in area advertising the sale or rental of only the premises on which they are located, and bulletin boards, and/or signs accessory to uses specified in paragraphs 3, 4, and 6 under R. 1 district; but in single sub-divisions large signs may be erected but subject to the provisions of Section 9’ ; that professional offices, except those of physicians, are not permitted, but professional offices are permitted in C. 1 districts; that the defendant is a member of the bar, having an office for the practice of law at 24 School Street, Boston, and residing at 282 Massachusetts Avenue in Lexington; that the premises where he resides are in an R. 1 district; that the defendant has erected on a tree in front of 282 Massachusetts Avenue a sign about ten inches by twenty inches, attached to the tree by an iron bracket, about five feet from his front steps, on which is printed on both sides the following words: ‘ David H. Govenar, Attorny at Law, Notary public’ ; that the ‘ plaintiff is informed and believes and therefore alleges that the defendant is practicing his profession of attorney at law and maintaining an office therefor in his said residence at 282 Massachusetts Avenue, Lexington, and that the sign in question is for the purpose of soliciting clients to come to his said premises for business or professional purposes.’ A copy of the pertinent provisions of the by-law is annexed to the bill.
The defendant in his answer admits the allegations of the bill as to the adoption and terms of the by-law and as to his being a member of the bar with an office in Boston and a residence in Lexington, admits that his residence is in an R. 1 district; admits that he erected the sign in the location and with the printing described in the bill, but alleges that the dimensions of the sign are somewhat less than those stated in the bill; and denies that he is maintaining an office for the practice of law in his residence; admits that clients have come to his home for advice, but alleges that ‘ the actual work of his law office is as set forth in’ paragraph 2 of the bill, which contains the allegations that he has a law office in Boston; denies that the sign is for the purpose of soliciting clients to come to his house for business or professional purposes, and alleges that it is for the purpose of identifying his residence. It is further pleaded in the answer that even if the allegations of the bill on information and belief are true the plaintiff has no cause of action either in law or in equity, and that the defendant's residence in an R. 1 district does not constitute a violation of the zoning by-law.
The trial judge found that ‘ In 1929 the Town of Lexington adopted a zoning bylaw * * * which, with certain amendments not material to this case, has remained in force until the present time’ ; that under this by-law, and in accordance with a zoning map annexed to it, certain single family house districts called R. 1 have been set off; that in one of these R. 1 districts on Massachusetts Avenue and near the Arlington line the defendant resides in a single family house; that he is a lawyer with an office in Boston; that he has erected and maintained on a tree in front of his house a sign 10" x 20" in size on which is printed the words ‘ David H. Govenar Attorney at Law Notary Public’ ; that the defendant maintained no real office at his home, but, as is customary among lawyers, saw at his home such clients as desired to consult him there; that the sign was maintained by him for advertising purposes and to solicit the patronage of clients; that there was nothing improper in this form of solicitation; that section 4 of said zoning law, however, restricts residents in the R. 1 districts to certain designated used of property therein located. The judge found and ruled that the maintenance of the sign was and is a violation of the by-law; and that such use as the defendant has made of his dwelling house to see and consult with clients has not been a violation of said zoning law. The judge ordered that a final decree be entered providing that the defendant be ordered to remove the sign, and that he be enjoined from erecting and maintaining another of like or similar description. A final decree was entered accordingly from which the defendant appealed.
Upon the record the only questions open for our consideration are whether the decree corresponds to the allegations and prayers of the bill and could have been lawfully entered on the facts found, and whether the conclusions reached are incompatible with other facts found. In this connection see Seager v. Dauphinee, 284 Mass. 96, 98, 187 N.E. 94; Karas v. Karas, 288 Mass. 460, 462, 193 N.E. 18; Economy Grocery Stores Corp. v. McMenamy (Mass.) 195 N.E. 747; Wyness v. Crowley (Mass.) 196 N.E. 924.
The finding that the defendant maintained no real office in his home is not incompatible with a finding that the sign was maintained for advertising purposes and that the defendant saw at his house such clients as desired to consult him there. A sign might be erected to attract clients to certain premises and clients so attracted might be consulted there without the existence of an office on the premises. So far as the maintenance of the sign is concerned, it is plain that the premises were being used contrary to the zoning law. Under this law premises in an R. 1 district could be used only in certain ways and signs could be erected only in connection with such uses and to advertise the sale or rental of the premises. Under this zoning law an intention is manifest to restrict various types of offices and signs placed upon...
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