Wilbur v. City of Newton

• Decision Date: 29 December 1938
• Citation: 302 Mass. 38,18 N.E.2d 365
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: GEORGE S. WILBUR & others v. CITY OF NEWTON.

302 Mass. 38

18 N.E.2d 365

GEORGE S. WILBUR & others v. CITY OF NEWTON.

Supreme Judicial Court of Massachusetts, Middlesex.

December 29, 1938

October 4, 1938.

Present: FIELD, C.

J., DONAHUE LUMMUS, QUA, & DOLAN, JJ.

Zoning. Constitutional Law, Zoning, Police power.

Equity Jurisdiction, To enforce zoning law. Words "Building," "Temporary.

"

The facts justified the conclusions that a city zoning ordinance placing a two thousand acre tract in a residential district and prohibiting the construction therein of new buildings for industrial or commercial purposes was reasonable, was in accordance with the general character of the tract and the trend of its development probable when the ordinance was passed and subsequently, was not shown to have no substantial relation to the public interest, and was constitutional, as applied to prevent the continuance on land in the tract of a "sand hopper," engine house, and scale house, erected after the adoption of the ordinance and used in connection with the removal and sale of sand and gravel from that and other land such removal itself being permissible under the ordinance.

The fact that, at the time when a zoning ordinance was adopted by a city prohibiting the erection of new buildings for commercial purposes in a private residence district, a business of a commercial nature already was established on land in the district did not legalize buildings, not of a temporary character, thereafter erected on such land for carrying on that business.

No impropriety appeared in the denial of an application for a renewal permit under a zoning ordinance for continued use of buildings on land in connection with a sand and gravel business conducted there, where it was found that the denial was not arbitrary capricious, or in bad faith.

In a suit against a city to enjoin the enforcement of a zoning ordinance as invalid as applied to the plaintiff's buildings, the city, upon facts found showing the validity of the ordinance and requiring that the bill be dismissed, was entitled to a decree granting its counterclaim that the plaintiff be restrained from violating the ordinance.

BILL IN EQUITY, filed in the Superior Court on September 25, 1936. A report by a master was confirmed, and a final decree dismissing the bill and counterclaim was entered by order of M. Morton, J. All parties appealed.

A. V. A.

Thomason, (C. S. Hartwell with him,) for the plaintiffs.

W. G. Guernsey, for the defendant.

QUA, J. 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, 301 Mass. 97 . 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 Wilbur 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." Euclid v. Ambler Realty Co. 272 U.S. 365, 395. Nectow v. Cambridge, 260 Mass. 441 , 448, Nectow v. Cambridge, 277 U.S. 183, 188. 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 establish 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 eight miles of the center of Boston. For ten years by far the greatest 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...