Building Law, Zoning ordinance. Constitutional Law, Police power: municipal zoning. Supreme Judicial Court, Advisory opinion. Municipal Corporations, By-laws and ordinances.
In determining the question of the constitutionality of G. L. c. 40, §§ 25-30, raised on a report by a judge of the Superior Court of a suit in equity to enforce the provisions of an ordinance based on that statute, the justices of this court gave to the questions raised by the record the most careful, thorough and painstaking investigation and reflection which the sense of judicial obligation can impose, guarding themselves most sedulously against any influences flowing from their previous consideration of that question when it was presented to them by a request of the House of Representatives under Mass. Const. c. 3, art. 2, while the petition for the enactment of the legislation was pending.
Art. 60 of the Amendments to the Constitution of the Commonwealth and G.L.c. 40, §§ 25-30, are not violative of any provision of the Constitution of the United States nor obnoxious to any provision of that Constitution or of the Constitution of this Commonwealth.
A division of a city into business and residential districts by ordinances specifying as a business district any building district in which "not less than one half the ground floor frontage of both the district and the frontage on the other side of the street immediately opposite said district are at the time this ordinance goes into effect devoted to business or industry other than farming, gardening, or the conduct of a boarding or lodging house, and a building district which is manifestly intended to be devoted to business or industry," and specifying as residential districts all other building districts not described in the foregoing language, is not unreasonable.
Provisions of an ordinance of a city adopted under G.L.c. 40, §§ 25-30, following the above described provisions defining what should be a business district and what should be a residential district, were in substance that no building in a residence district could be erected or altered for purposes of business or industry unless upon application accompanied by written consents of owners of not less than three fourths of all lands used for other than business or industrial purposes which fronted on the same side of the street and lay between the two intersecting streets nearest to and on either side of the land in question, or within four hundred feet on either side thereof in case the nearest intersecting streets were more than that distance therefrom, and also of all lands fronting upon the other side of the street and directly opposite the land in question, and of all lands immediately in the rear thereof; and unless after a public hearing the city council should so order. Held, that
(1) It must be presumed that the city council enacted the ordinance with a purpose to subserve the public welfare;
(2) There was no invalidity in the provision enabling the city council for the common good to relax the rigidity of the bounds of the districts if and when three fourths of the landowners in the immediate neighborhood so requested;
(3) There was not in the ordinance a delegation of legislative power;
(4) The described provisions were not unconstitutional.
RUGG, C.J.
This is a suit in equity by the inspector of buildings of Lowell to restrain the defendant from erecting a certain building for business purposes in that city in violation of an ordinance enacted pursuant to G.L.c. 40, § 25. That section authorizes any city or town by ordinance or by-law to divide its territory into districts or zones, to restrict the use of buildings for trade and industry, for tenement houses and for dwelling houses to designated areas and to require such buildings to conform to established regulations as to construction and use. This authority and the limitations and regulations for its exercise are set out with some particularity in G.L.c. 40, §§ 25-30, both inclusive.
The constitutionality of the statute is assailed by the defendant. Manifestly the statute was intended to be enacted pursuant to the authority conferred by art. 60 of Amendments to the Constitution of this Commonwealth, which is in these words: "The general court shall have power to limit buildings according to their use or construction to specified districts of cities and towns." The justices were requested to give their opinion to the honorable House of Representatives as to the constitutionality of the sections of the statute here in question while they were pending and before their enactment. The opinion was expressed that the proposed act, now embodied in substance in the sections here attacked, would not violate either the Constitution of this Commonwealth or that of the United States, and that art. 60 of the Amendments to the Constitution of this Commonwealth, in that it authorized the enactment of the proposed statute, was in no respect in contravention of any provision of the Constitution of the United States. Opinion of the Justices, 234 Mass. 597.
Such opinions are rendered in accordance with the mandate of Mass. Const. c. 3, art. 2, and express views resting upon judicial investigation and consideration. They are advisory in nature, are given without the benefit of argument, are liable to error and must be regarded not as conclusive and binding but subject to reëxamination and revision. When called upon to decide the same questions coming before them as a court, the justices guard themselves most sedulously against any influences flowing from their previous consideration. Green v. Commonwealth, 12 Allen, 155, 164. Young v. Duncan, 218 Mass. 346, 351. Perkins v. Westwood, 226 Mass. 268, 272. Loring v. Young, 239 Mass. 349, 361. There has been given to the questions now presented the most careful, thorough and painstaking investigation and reflection which the sense of judicial obligation can impose.
The conclusion now reached in the case at bar is that art. 60 of the Amendments, so far as it authorizes the enactment of the sections of the statute here attacked, is not violative of any provision of the Constitution of the United States and that the sections of the statute are not obnoxious to any provision of the Constitution of this Commonwealth or of that of the United States. The reasons which now seem decisive and the supporting authorities are stated at large in the advisory opinion. It is hardly worth while to expand the bulk of our reports by covering the same ground again. Without further present discussion, summarization, amplification, restatement or paraphrase, that opinion is adopted as the judgment of the court in the case at bar. It covers every constitutional phase which has been argued or which has occurred to us.
That conclusion is supported by numerous cases, most of which have been decided since that opinion was rendered. Lincoln Trust Co. v. Williams Building Corp. 229 N.Y. 313. Ware v. Wichita, 113 Kans. 153. Des Moines v. Manhattan Oil Co. 193 Iowa, 1096. State v. Harper, 182 Wis. 148. State v. New Orleans, 154 La. 271. Salt Lake City v. Western Foundry Stove Repair Works, 55 Utah, 447. State v. Houghton, 142 Minn. 28. State v. Houghton, 144 Minn. 1. Ex parte Quong Wo, 161 Cal. 220.
There are decisions to the contrary. Spann v. Dallas, 111 Tex. 350[ 111 Tex. 350]. People v. Chicago, 261 Ill. 16, 20. State v. McKelvey, 301 Mo. 130. Handy v. South Orange, 118 Atl. Rep. 838. Vernon v. Westfield, 98 N.J.L. 600, compare Cliffside Park Realty Co. v. Cliffside, 96 N.J.L. 278. Ambler Realty Co. v. Euclid, 297 Fed. Rep. 307. Other decisions having a contrary appearance may rest upon other grounds. Byrne v. Maryland Realty Co. 129 Md. 202. Clements v. McCabe, 210 Mich. 207. State v. Edgecomb, 108 Neb. 859. None of them were decided in view of constitutional provisions like those of art. 60 of the Amendments. So far as they are at variance with the views here expressed and set forth at length in Opinion of the Justices, 234 Mass. 597, we are not inclined to follow them.
It is urged that the ordinance transcends the authority conferred by the statute and hence is invalid. This contention requires some analysis of the ordinance. Its first section defines a building district as including "all lands locating or fronting upon each section of each accepted street between the boundary lines of each two adjacent intercepting streets or between the end of said street and the first adjacent intersecting street." No argument against the validity of this section has been addressed to us. It seems sufficiently definite to identify land with reference to streets.
The second section creates as a business district any building district in which "not less than one-half the ground floor frontage of both the district and the frontage on the other side of the street immediately opposite said district are at the time this ordinance goes into effect devoted to business or industry other than farming, gardening, or the conduct of a boarding or lodging house, and a building district which is manifestly intended to be devoted to business or industry." The third section provides that all other building districts not described in § 2 shall be known as residence districts.
A division into business and residence districts on the basis thus provided is not unreasonable. In substance it was upheld in Welch v. Swasey, 193 Mass. 364, affirmed in 214 U.S. 91. Ayer v. Commissioners on Height of Buildings in Boston, 242 Mass. 30, 32. There is nothing in the agreed statement of facts which indicates that the ordinance operates oppressively or inequitably. Every such division may injure somebody; but if it appears to have been made in the public interest and to be reasonable in its general features and there is nothing outside the ordinance to indicate that its purpose was to persecute or abuse, it will not be stricken down merely because a particular individual may think himself aggrieved or may be in truth injured. The exceptions in § 2 do not affect the defendant. Difficulties which may arise in the interpretation of this ordinance as to other states of facts do not render the ordinance invalid.
The fourth section provides that land and buildings within the residence district and not at the time of the passage of the ordinance devoted to business or industry, other than those specified in § 2, shall not be used for, or altered or converted to, business uses except as provided in the section following. The effect of this section is simply to insure a reasonable permanency to the building districts in conformity to their initial establishment. It secures the landowner against changes except upon the observance of certain definite formalities. If these are reasonable, there is no just ground for complaint.
The main attack centers on section 5 of the ordinance. Its provisions are in substance that no building in a residence district can be erected or altered for purposes of business or industry unless upon application accompanied by written consents of owners of not less than three fourths of all lands used for other than business or industrial purposes which front on the same side of the street and which lie between the two intersecting streets nearest to and on either side of the land in question or within four hundred feet on either side thereof in case the nearest intersecting street is more than that distance therefrom, and also of all lands fronting upon the other side of the street and directly opposite said land, and of all lands immediately in the rear thereof; and provided further that the city council shall after public hearing so order.
The law as to the validity of ordinances respecting limitations upon the use of real estate by the exercise of the police power was stated in Dobbins v. Los Angeles, 195 U.S. 223, at 235, 236, 237, in these words: "It may be admitted that every intendment is to be made in favor of the lawfulness of the exercise of municipal power, making regulations to promote the public health and safety, and that it is not the province of courts, except in clear cases, to interfere with the exercise of the power reposed bylaw in municipal corporations for the protection of local rights and the health and welfare of the people in the community. But notwithstanding this general rule of the law, it is now thoroughly well settled by decisions of this court that municipal by-laws and ordinances, and even legislative enactments undertaking to regulate useful business enterprises, are subject to investigation in the courts with a view to determining whether the law or ordinance is a lawful exercise of the police power, or whether under the guise of enforcing police regulations there has been an unwarranted and arbitrary interference with the constitutional rights to carry on a lawful business, to make contracts, or to use and enjoy property. . . . 'The State has undoubtedly the power, by appropriate legislation, to protect the public morals, the public health and the public safety, but if, by their necessary operation, its regulations looking to either of those ends amount to a denial to persons within its jurisdiction of the equal protection of the laws, they must be deemed unconstitutional and void.' " The facts in the case there under consideration were sufficiently analogous to those here urged to render this statement of principle applicable. We accept it as controlling.
The ordinance in the case at bar establishes the business districts and the residential districts by plain and unequivocal words. No popular vote of landowners or residents is required as a prerequisite. It must be presumed that the city council enacted the ordinance with a purpose to subserve the public welfare. If there were provision that any area should be restricted upon request of certain persons more or less interested in the subject, it would be invalid. Eubank v. Richmond, 226 U.S. 137, 144. But where districts are established by some rational general rule, there is no invalidity in a provision which enables a public board, in the exercise of its sound judgment for the common good, to relax the rigidity of the bounds of those districts if and when three fourths of the landowners in the immediate neighborhood as bounded by the ordinance request. The ordinance in the case at bar does not seem to us so objectionable as the one upheld in Cusack Co. v. Chicago, 242 U.S. 526. The consent of certain landowners required by the present ordinance is merely a condition precedent to the exercise of power by the city council to hold a public hearing upon an application to permit a building within a residence district to be used for business or industrial purposes and to decide whether to order or to refuse the issuance of such a permit. This is the establishment of a safeguard for the owners of homes within residential districts. It is not a delegation of legislative power. It does not offend against any of the principles declared and applied in the cases upon which the defendant relies, such as Commonwealth v. Maletsky, 203 Mass. 241, Kilgour v. Gratto, 224 Mass. 78, Cawley v. Northern Waste Co. 239 Mass. 540, Commonwealth v. Atlas, 244 Mass. 78, and many similar decisions.
Prayer of the plaintiff for a restrain- ing order to be granted.