319 Mass. 273 | Mass. | 1946
The defendant in the first case has appealed from a final decree permanently enjoining it from using a certain parcel of land for the dumping of garbage, ashes or other household refuse unless such use is approved by the board of aldermen and authorized by the board of health, but allowing it to fill in its land in any manner which is permitted by the zoning ordinance and which will not, in the judgment of the board of health, make it a menace to health or property. The defendant in the first case as the
The city of Medford adopted a zoning ordinance in 1925 dividing the city into six districts. The C. & H. Co. purchased between 1928 and 1935 a large area of marsh land between Riverside Avenue and Mystic Valley Parkway in said Medford. This land has since the enactment of the zoning ordinance been located in a heavy industrial district where the buildings and land by virtue of § 9 of this ordinance may, subject to § 19, be used for any purpose except for dwellings or for thirty-nine specific industries like abattoirs, stock yards, rendering works, glue factories, tanneries and for use injurious to the safety and welfare of the neighborhood “because of any excessive nuisance qualities.” No permit for the use of land in this district for a junk yard, sand or gravel pit and for various other uses can be issued by the building commissioner until the application is approved by the board of aldermen. § 19. This last section of the ordinance was amended on January 24, 1935, so as to include “dumps, private or public,” among the uses for which the approval of the board of aldermen is required. A public hearing before the board of aldermen upon the application for a use of land for any of the purposes mentioned in § 19 is provided by § 20. The board may prescribe the conditions and terms upon which a permit is to be issued, which may be changed from time to time, and no permit is to be granted that would result in substantial injury.
The board of health of Medford adopted a regulation prohibiting dumping without a permit from it, and subsequently, an ordinance was enacted on December 20, 1938, giving to this board power to make rules and regulations for the control of all dumping of refuse and of all places used for the dumping of refuse, and requiring a permit from the board. The board on November 24, 1939, granted to the defendant in the first case, hereinafter called the defendant, a permit to dump on the parcel of land in question. The board of aldermen on February 6,1945, requested the board of health
The judge found that the defendant’s premises are low, marshy land, not now adaptable for ordinary use, that they are fit for a dump, and that dumping will make them more rentable for general land purposes and will increase their value. He also found that the defendant is conducting dumping on its land as a business, and that it has entered into a contract with the city of Somerville to dump house refuse collections on the land. The use made of the defendant’s premises prior to the filing of the bill is fully described by the testimony. Oral evidence and also photographs indicated that rubbish and refuse, ashes, cans, garbage, paper bags and papers were deposited upon the defendant’s land, together with coal slag, which is a good solid filling and was used to cover over the material that had been dumped. The city of Medford appointed a person to supervise the dumping and to see that all fires were out at four o’clock in the afternoon. The board of health on February 2, 1945, notified the defendant that, unless a portable water pipe line was installed within ten days, its permit would be cancelled, and requested that all dumping be done by the reclamation or ditch method thereby eliminating fires. This portable water pipe line was never installed.
The defendant has not been absolutely prohibited from filling its land. The city has gone no farther than to forbid it to fill the land by using it as a public or private dump unless it has secured a permit from the building commissioner that has been approved by the board of aldermen and also a permit from the board of health. It is open to the defendant to fill in the land in any manner it sees fit, other than by means of a public or private dump. It cannot use its land for the deposit of refuse collected from dwellings without a permit from the board of health. The nature of refuse of this character would seem to be a matter of common knowledge. The detrimental effect upon the in
The defendant contends that the city had no authority to adopt a zoning ordinance requiring approval of the board of aldermen before a permit may be issued by the building commissioner to use land for a private or public dump, because the grant of such a power would interfere with the power possessed by the board of appeals by virtue of G. L. (Ter. Ed.) c. 40, § 30, as amended. See St. 1945, c. 167.
The defendant has not applied to the building commissioner for a permit, and it will be time enough to decide what remedy it may have in the case of a refusal by the aldermen to approve the application for a permit.
The granting or withholding of approval of a permit by the board of aldermen is not made dependent upon the untrammeled discretion of the board. The principles for guiding the board and the standards to be observed by the board are adequately stated in the ordinance with as much
The ordinance of December 20, 1938, granting the board of health power to make rules and regulations for the control of all dumping of refuse and for the control of all places used for dumping of refuse did not leave the board of aider-men without power under § 19 of the zoning ordinance to approve permits. Such a permit is necessary for the location or establishment of a dump. A permit from the board of health is required for the operation or maintenance of the dump. A citizen sometimes requires two permits to do a certain act or to make a particular use of his property. Commonwealth v. Ellis, 158 Mass. 555. Commonwealth v. McGann, 213 Mass. 213. Marchesi v. Selectmen of Winchester, 312 Mass. 28.
The judge found that a comparatively small portion of the land has been casually and sporadically filled, and that such filling as was done prior to the amendment of the zoning ordinance on January 24, 1935, so as to include dumps, was not in fact or in law a prior existing nonconforming use. A careful examination of the testimony covering a period of a quarter of a century with reference to the times when materials, ranging from broken bricks from an old brick factory which was located in the vicinity and ashes to mud and peat excavated for the construction of the new Wellington Bridge in 1934 and 1935, were deposited on some portion of this lot of one hundred eighty-eight thousand square feet, together with other evidence tending to indicate that this land was not used for a dump until after 1935, does not demonstrate that the judge was plainly wrong in his finding that the land was not then utilized for a nonconforming use. On an appeal in equity findings made by a judge upon oral evidence cannot be reversed unless
The fact that the city of Medford is dumping refuse upon the defendant’s land without any permit does not bar relief on this bill in equity. The fact that some one else is violating the ordinance furnishes no excuse or justification for a violation by the defendant. Morley v. Police Commissioner of Boston, 261 Mass. 269, 280. The bill is brought to enforce the zoning ordinance for the public welfare, Lincoln v. Giles, 317 Mass. 185, 187, and the building inspector who is charged with the enforcement of this ordinance is not estopped by the alleged action of the city or its officials, nor is the city itself. Brookline v. Whidden, 229 Mass. 485, 492, 493. Building Commissioner of Brookline v. McManus, 263 Mass. 270, 274. A city should comply with its ordinances. “It may rightly be expected to set an example of obedience to law.” Commonwealth v. Hudson, 315 Mass. 335, 343. The defendant is not remediless if it really objects to dumping by the city. It has not filed any counterclaim or taken any other steps to protect its property. Kelley v. Board of Health of Peabody, 248 Mass. 165, 169. Suburban Land Co. Inc. v. Billerica, 314 Mass. 184, 194.
The defendant objects to the form of the decree on the ground that it is unable to understand what it is restrained from doing and especially whether it is restrained from permitting the dumping of ashes from dwellings. Before discussing that subject, it is necessary to point out that the building commissioner, who is the sole plaintiff, has no authority to enforce the regulations of the board of health, Mayor of Cambridge v. Dean, 300 Mass. 174, and bills for injunctions to enforce zoning ordinances are usually and properly brought in the name of the municipality. Worces
We do not agree with the defendant that the violation of the health regulation is not in issue because the permit was revoked solely in compliance with the request of the board of aldermen. The defendant, as hereinafter appears in dealing with the petition for a writ of certiorari, has no just ground to quash the revocation of that permit. The bill alleges and the evidence proves that the defendant was maintaining a dump without a permit from the board of health. That is one of the matters involved in the present controversy and should now be settled.
A final decree should be as definite and certain as the circumstances allow in order that a defendant may know what conduct is prohibited and not be subjected to contempt proceedings that might possibly arise out of any ambiguity in the decree. MacCormac v. Flynn, 313 Mass. 547, 550. Carroll v. Hinchley, 316 Mass. 724, 731. J. I. Case Co. v. National Labor Relations Board, 321 U. S. 332, 341.
The first paragraph of the final decree enjoined the defendant from using its land “for the purpose of dumping garbage, ashes or other household refuse, unless such use shall have received the approval of the board of aldermen and the authorization of the board of health,” and the second paragraph provided that nothing in the first para
The plaintiff is given leave, if so advised, within thirty days after the date of the rescript, to apply to the Superior Court for an amendment to his bill substituting the city as plaintiff. If such amendment is not made, a final decree is to be entered enjoining the defendant from using its land as a private or public dump without a permit from the plaintiff. If such amendment is made, the final decree is to be modified by striking out all of that portion of the first paragraph after the words “within the city of Med-ford” and by substituting therefor the following: “as a private or public dump without a permit from the building commissioner, the issuance of which has been approved by
So ordered.
The petitioner's appeal from the judgment dismissing its petition for a writ of certiorari requires little discussion in view of what has already been said. The petitioner had no permit from the building commissioner, and without it cannot use its land as a site for a dump. In these circumstances, a permit from the board' of health would not authorize the petitioner to maintain the dump. That permit did not authorize it to violate the zoning ordinance. Commonwealth v. Fenton, 139 Mass. 195. Commonwealth v. Ellis, 158 Mass. 555. Milton v. Donnelly, 306 Mass. 451. Lincoln v. Giles, 317 Mass. 185. At the time of its revocation without notice to the petitioner or a hearing the permit was inoperative although outstanding and for aught that appears in the record it might never become operative. A zoning ordinance, in one instance at least, is to be considered superior to a health regulation. The authority of a board of health to assign certain places for the exercise of an offensive trade or employment must yield to the provisions of the statutes and ordinances pertaining to zoning. G. L. (Ter. Ed.) c. 111, § 143, as appearing in St. 1933, c. 269, § 2. Lincoln v. Murphy, 314 Mass. 16. The writ does not issue as matter of right but rests in sound judicial discretion. It is the general rule, where, as here, there is no showing of substantial injury or manifest injustice, that certiorari will not issue. Boston v. White Fuel Corp. 294 Mass. 258. Mullholland v. State Racing Commission, 295 Mass. 286. Walsh v. District Court of Springfield, 297 Mass. 472. The revocation of the permit results in no hardship to the petitioner unless and until it has complied with the zoning ordinance. See Vorenberg v. Bunnell, 257 Mass. 399, 408; Jenney v. Hynes, 282 Mass. 182, 194; Brackett v. Board of Appeal of Boston, 311 Mass, 52, 57.
Judgment affirmed.