Town of Needham v. Winslow Nurseries, Inc.

• Decision Date: 02 April 1953
• Citation: 111 N.E.2d 453,40 A.L.R.2d 1450,330 Mass. 95
• Parties: , 40 A.L.R.2d 1450 TOWN OF NEEDHAM v. WINSLOW NURSERIES, Inc. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 453

111 N.E.2d 453

330 Mass. 95, 40 A.L.R.2d 1450

TOWN OF NEEDHAM v. WINSLOW NURSERIES, Inc. et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Dec. 1, 1952.

Decided April 2, 1953.

Henry W. Hardy, Town Counsel, Boston, for plaintiff.

John V. Phelan, Lynn (Louis J. Ferrari, Brighton, with him), for defendants.

Edward O. Proctor, Boston, by leave of court, submitted a brief as amicus curiae.

Before QUA, C. J., and LUMMUS, RONAN, WILLIAMS and COUNIHAN, JJ.

WILLIAMS, Justice.

This is a bill in equity to restrain the use of certain described land in Needham for purposes alleged to be in violation of a zoning by-law of the town. The evidence is reported and a judge of the Superior Court has reported findings of material facts. By the by-law in question, which was enacted in March, 1925, the town is divided into five classes of districts designated as single residence, general residence, institutional, business, and manufacturing. It is provided that in single residence districts (section 3) 'no building shall be erected, altered or used and no premises shall be used except for one or more of the following uses: 1. One-family, detached, houses. 2. The taking of boarders or the leasing of rooms by a resident family. 3. Churches, schools, public libraries, public museums, parish houses, philanthropic institutions. 4. Private clubs not conducted as a business. 5. Public parks, playgrounds, municipal recreation buildings, water towers and reservoirs. 6. Farms, stock farms, greenhouses, nurseries and truck gardens. 7. Real estate signs advertising the sale or rental of only the premises on which they are located and bulletin boards accessory to uses specified in 3 and 5 of this section. 8. Public service and other passenger stations.'

The land which is the subject of the town's complaint consists of three adjacent parcels of land, totaling approximately 175,000 square feet, owned by the defendant Winslow. They, with three other parcels, one of which is owned by him and two by him and his wife as tenants by the entirety, are occupied by the other defendant, Winslow Nurseries, Inc., as tenant at will and are used by it for a greenhouse and nursery business. Winslow is president of this operating corporation. All six parcels are in a single residence district. On the first of the parcels described in the bill there is a 'sales and growing' greenhouse to which are attached a greenhouse workshop, a storage building, a 'garden shop,' and an office. Near by there are a second storage shed and another greenhouse with a wing and heating plant. The floor area of all of these buildings is about 10,245 square feet. A new sales greenhouse 60 feet long by 40 feet wide is in process of construction. The land not occupied by the buildings on this parcel and the second and third parcels, which are separated from the first parcel by a street, are used for growing nursery stock. The defendants propose to construct on the second parcel a parking lot 260 feet long by 80 feet wide which will accommodate sixty automobiles.

There are findings that Winslow Nurseries, Inc., hereinafter referred to as the defendant, carries on the following activities upon the premises: '1. The growing of trees, shrubs and plants. 2. The sale of trees, shrubs and plants grown upon said premises. 3. The storage and sale of substantial quantities of trees, shrubs and plants which are grown elsewhere than on said premises but which are obtained for sale on the premises. 4. The storage and sale upon the premises during the Christmas season of substantial quantities of cut Christmas trees, and of Christmas wreaths, grown elsewhere than on the premises, and brought in for sale * * *. 5. Sale of peat moss, fertilizers, humus, and mulches. 6. The business of contracting to plant trees, shrubs, plants and lawns for others, using nursery stock both grown on the premises and obtained elsewhere. 7. The maintenance of trucks, and other mechanical equipment, including both indoor and outdoor steam earth sterilizers, for use in connection with the nursery business. 8. Signs on or near defendants' principal place of business, advertising the business carried on by the defendant corporation and the sale of particular products or articles in season. 9. Signs located on outlying growing areas bearing the defendant corporation's name and telephone number. 10. A small sales or garden shop containing the following articles * * *: a. Hose, sprinklers and nozzles. b. Fungicides, insecticides and chemicals. c. Sterilized soil and soil conditioners (lime). d. Fertilizers, liquid and powder. e. Mowers, spreaders, sweepers, and garden carts. f. Sprayers and dusters. g. Tools (stand up) including rakes, hoes and shovels. h. Tools (hand) including shears, pruners and trowels. i. Books on the care of trees, plants and shrubs. j. Wooden trellis, and garden ornaments. k. Labels, stakes and guides. l. Pottery (outdoor garden and greenhouse). m. Pottery, decorative. n. Bird houses, bird baths, bird feeders and bird seeds. o. Christmas candles and decorations, nonfloral. p. Flower, vegetable and grass seeds. q. Cold frames.' In addition to the greenhouses, the garden shop, the soil sterilizer and the signs, it maintains on the premises flood lights and a loud speaker intercommunicating system.

The extent of the defendant's business is reflected in its gross receipts, which in the fiscal year ending in February, 1952, totaled $419,738.37. Of this sum more than half represented sales on the premises, and the balance receipts from contract work on landscaping and housing projects. During the last two fiscal years approximately 40% of the defendant's gross sales consisted of trees, shrubs, and vines. Of such sales 40% to 50% were of plants not grown on the premises. In the same years sales or greenhouse plants constituted 8.5% and 5.9% of gross sales, and sales of fertilizers, roses, bulbs, and grass seed from 3% to 5% of gross sales. 'Substantially all of these [last named] articles * * * were brought in from outside. Perennials, annuals and vegetable plants * * * were nearly all raised on the premises.' During the months of April, May, and December 'as many as 400 to 600 retail sales are made on the premises on peak days,' resulting in 'a large amount of automobile traffic.'

The plaintiff contends that, except for the cultivation and sale of trees, shrubs and plants grown on the premises, the activities of the defendant violate the zoning by-law. Whether this is so depends on the nature of the business which is permitted by the by-law under the designations 'greenhouses' and 'nurseries.' As bearing on the meaning of these words, the judge, subject to the plaintiff's exceptions, admitted evidence of the customary scope of the greenhouse and nursery business as actually carried on in 1925 when the by-law was enacted. In his findings he states, 'If the words 'nurseries' and 'greenhouses' in the zoning by-law may, as matter of law, be defined in the light of the custom and usage of the business as generally practised at the time of its enactment, I find that the defendant has conducted its business within the terms of the by-law.'

He ordered an interlocutory decree to be entered enjoining the use of a 'loud speaker intercommunication system,' the use of floodlights focused beyond the defendant's premises, and the maintenance of unsightly rubbish accumulations, all of which 'are unnecessary to the conduct of the business and constitute an annoyance to the neighbors.' He further ordered that, 'except as so stated, a decree shall be entered, adjudicating that the defendants are not, and neither of them is in violation of the zoning by-law, and that the further relief prayed for against them be denied.' 'Being of opinion that this order so affects the merits of the controversy that the matter ought, before further proceedings, to be determined by the full court, I report the case for that purpose, upon the pleadings, evidence and findings of material facts and order for decree, and stay all further proceedings except under the interlocutory decree, and except that the stipulation relating to the use of the parking lot shall remain in full force and effect, pending the decision of the full court.' ¹

Greenhouse and nursery are words in common use and there is nothing in the by-law to indicate that it was intended to employ them in other than their ordinary sense. They are to be interpreted according to the common and...