Wilbur v. City of Newton

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: QUA
• Citation: Wilbur v. City of Newton, 302 Mass. 38, 18 N.E.2d 365 (Mass. 1938)
• Decision Date: 30 December 1938
• Parties: WILBUR et al. v. CITY OF NEWTON.

302 Mass. 38

18 N.E.2d 365

WILBUR et al.

v.CITY OF NEWTON.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 30, 1938.

Suit by George S. Wilbur and others against the City of Newton to restrain the city from enforcing a zoning ordinance, wherein the city counterclaimed to restrain certain of plaintiffs from using buildings as a sand and gravel plant. From interlocutory and final decrees plaintiffs appeal, and from final decree defendant appeals.

Order in accordance with opinion.Appeal from Superior Court, Middlesex County; M. Morton, judge.

A. V. A. Thomason and C. S. Hartwell, both of Boston, for plaintiffs.

W. G. Guernsey, of Boston, for defendant.

QUA, Justice.

The plaintiff Wilbur and the plaintiffs Esty are the owners, respectively, of two adjoining parcels of land situated in the extreme southerly part of Newton. The Wilbur tract contains about seventy-one acres, and the Esty tract about fifty-eight acres. These are the same lands to which reference is made in Wilbur v. Newton, Mass., 16 N.E.2d 86. They lie southwest of Dedham Street and, roughly speaking, between Charles River and the boundary of that part of Boston known as West Roxbury. The plaintiff Highland Sand & Gravel Company, Inc., owns and since 1928 has operated upon the Wilbur land a plant for processing sand and gravel. Great quantities of these materials have been taken from the Wilbur land, but they are now obtained principally from the Esty land and from land of others beyond the Boston line.

The object of this bill is to restrain the city from enforcing its zoning ordinance as applied to the Wilbur and Esty lands and from interfering with the sand and gravel business there carried on. The defendant seeks by counterclaim to restrain the plaintiffs other than the Estys from using the buildings on the Wilber land as a sand and gravel plant. Somewhat broader claims have been abandoned.

The plaintiffs contend that the zoning ordinance is unconstitutional and invalid as applied to their lands. On this point binding precedents establish the test to be whether the provisions of the ordinance as applied to the plaintiffs and their properties ‘are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.’ Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303, 54 A.L.R. 1016;Nectow v. Cambridge, 260 Mass. 441, 448, 157 N.E. 618;Nectow v. Cambridge, 277 U.S. 183, 188, 48 S.Ct. 447, 72 L.Ed. 842. In our opinion such a conclusion would be unjustified in this case.

The master has made careful and comprehensive findings of facts. In 1922 the city first enacted its zoning ordinance, whereby an area of over two thousand acres, including the Wilbur and Esty lands, was zoned as a private residence district, and the construction of new buildings for any industry or trade or for any manufacturing or commercial purpose was prohibited. Later amendments do not help the plaintiffs. The master's ultimate conclusion is stated by him as follows: ‘upon the understanding that the law does not require the City to establish its zoning districts upon the basis of the economic value of relatively small areas owned by individuals, but may establishe such districts upon the basis of substantial areas provided such districts bear a rational relation to the health, morals, safety and general welfare of the public and may consider the public interest not only as it exists at the time of division, but also as it appears probable it will develop, I find, so far as it is a question of fact, that the zoning of the area of approximately 2,000 acres in the southerly part of Newton as a private or single residence district was and is reasonable and in accordance with its general character and probable trend at the start and with its development since then. The districting established in 1922 served the public interest in that it protected so much of the area as was already devoted to single residences for that type of residence and from encroachment of types of construction, forms of enterprise, and crowding undesirable in a single residence district. It preserved the area not then built upon for future use for single residence construction to the exclusion of construction not desirable in single residence districts in accordance with the probable trend and with the preferences of the City of Newton as expressed by its legislative action.’ He further finds as to both tracts that so far as it is a question of fact, the plaintiffs have not sustained the burden of proving that the inclusion of these lands in the single residence district bore no rational relation to the public interest, or that at the present time it is not reasonable to retain them in such district.

Nothing in the subsidiary findings requires us to reverse the master's conclusions. The ‘back’ portions of both parcels, that is, the parts most distant from Dedham Street and nearest to the river, being the parts upon which the sand and gravel operations are carried on, reach into a glacial deposit of sand and gravel which extends along the banks of the Charles River in Newton, Needham, Boston and Dedham. This is practically the only available deposit in metropolitan Boston. It is of limited depth. On the lands here involved, in so far as it has not been removed, it consists of sharp ridges and mounds interspersed with valleys, swampy places, and small water courses. Prior to 1928 these portions of the premises were not suitable for building, except at a very substantial expense for preparation of the land. The sale of gravel would aid in defraying that expense. In 1922 this rough land was more valuable for sand and gravel than for building. At the present time the Wilbur land seems to have been so graded as to leave the greater part of it fairly suitable for building. The Esty land is partially graded. Out of the two thousand acres zoned as a private residence district there is still an area of about six hundred acres bounded by Dedham Street, Nahanton Street, the river and the Boston line, including the Wilbur and Esty lands, upon which there are only five or six dwelling houses. On the other hand, the two thousand acre tract as a whole has been developing as a residence district. This is the only part of Newton which has not been built up. ‘It is, in general, admirably suited for residential use, being largely of a rolling character in the natural state, and within 8 miles of the center of Boston. For 10 years by far the greater part of new construction in Newton has been in this area gradually approaching the southerly tip of the city in which the Wilbur and Esty properties lie.’ It ‘seems probable that the new construction of single houses will continue for a considerable period.’ Except for the six hundred acres above mentioned, ‘it is already firmly established in fact as a single residence district.’

On this branch of the case the precise issue is whether it was, or is, so unreasonable and arbitrary to prohibit new buildings, other than residences, on or near the gravel bearing portions of the Wilbur and Esty lands as clearly to place such prohibition beyond the scope of legislative competency. No contention is now made in this case that the city can prevent the removal and sale of sand and gravel if no structures which violate the ordinance are erected or maintained. The sale of gravel was established as an existing use of both parcels of land to substantially the same extent as at present before an amendment to the ordinance in 1935 for the first time regulated land use as distinguished from the erection and maintenance of buildings. Existing uses to the existing extent are preserved by G.L. (Ter.Ed.) c. 40, § 26, as it now stands after the passage of St.1933, c. 269, § 1.

Plainly, it was proper for the city in 1922, and it is proper now, to take into account the probable future development of the entire region. The effect upon the future residential development of the neighborhood which might then have been anticipated from the erection of non-conforming buildings can best be appreciated by regarding the character and...