333 Mass. 773 | Mass. | 1955
To the Honorable the Senate of the Commonwealth of Massachusetts:
The Justices of the Supreme Judicial Court respectfully submit these answers to questions set forth in an order of
The questions relate to a proposed act known as House No. 775, now pending before the Senate, entitled “An Act establishing an historic districts commission for the town of Nantucket and defining its powers and duties, and establishing historic districts in the town of Nantucket. ”
The purpose of the act is stated to be to promote the general welfare of the inhabitants of the town “through the preservation and protection of historic buildings, places and districts of historic interest; through the development of an appropriate setting for these buildings, places and districts; and through the benefits resulting to the economy of Nantucket in developing and maintaining its vacation-travel industry through the promotion of these historic associations. ” § 1.
The act establishes a historic districts commission of five members, who shall be resident taxpayers of the town, to be appointed by the' selectmen. § 2. It establishes by definite boundaries two districts in the town to be known as (1) Old and Historic Nantucket District, and (2) Old and Historic Siasconset District. § 3. It contains provisions applicable in those districts that “No building or structure shall hereafter be erected, reconstructed, altered or restored” until an application for a building permit “shall have been approved as to exterior architectural features which are subject to public view from a public street, way or place,” and evidence of such approval shall be “a certificate of appropriateness” issued by the commission (§ 4); that no building or structure shall be raised (razed?) without a permit approved by the commission, , which may be refused for any building or structure “the removal of which in the opinion of said commission would be detrimental to the public interest” of the town or of the village of Siasconset (§5); that occupational or other signs exceeding two feet in length and six inches in width, or the erection or display of more than one such sign, irrespective of size, on any lot, building or structure must be approved
The act contains no provision for compensation as for
The act contains some further provisions not here mentioned which it is thought unnecessary to state, as they have only a remote bearing, if any, upon the questions asked.
The questions are these:
“1. May the General Court enact legislation providing that no building shall be erected, reconstructed, altered or restored in said historic districts except as provided in section four of said proposed act?
“2. May the General Court enact legislation providing that no building or structure within the districts shall be razed except as provided in section five of said proposed act?
“3. Would the provisions of section six of said proposed act if enacted into law be constitutional?
“4. May the General Court provide that the remedies set forth in section eleven of said proposed act shall be exclusive?
“5. Would the enactment into law of the proposed act make illegal the change of use of any structure in either of the districts from a non-religious use to a use for religious purposes?
“6. May the General Court delegate the powers granted to the Old and Historic Nantucket District or the Old and Historic Siasconset District without setting up any standards aside from the general purposes as set forth in section one of said proposed act?
“7 Would the grant to the Old and Historic Districts of the powers set forth in clauses (a) and (b) of section eight of said proposed act be constitutional?
“8. Does the proposed act contain schemes for municipal improvement which violate the rights of private property secured by the state and federal constitutions against public interference through the police power?
*777 “9. Would the proposed act, or any provision thereof if enacted into law violate any right of private property secured by the state and federal constitutions against interference through the exercise of the police power?
“10. In any controversy regarding any property in the districts arising out of the administration of said proposed act if enacted into law, would any party thereto be entitled to the right of a trial by jury?
“11. Would the enactment into law of the proposed act be a taking of ancient landmarks and other property of historical or antiquarian interests, or an interest therein, for which just compensation must be paid, as provided in Article 51 of the Amendments to the Constitution of the Commonwealth?
“12. Would the proposed act or any provision thereof be a taking of property, or any interest therein, for which the owner thereof would be entitled to recover damages?
“13. Would the proposed act if enacted into law violate any provision of the constitution of the commonwealth?
“14. Would the proposed act if enacted into law violate the Fourteenth Amendment to the Constitution of the United States?”
If the proposed act is to be construed as a taking of the property of owners affected by it, manifestly it is unconstitutional, since no provision is made for compensation as required by art. 10 of the Declaration of Rights. On the other hand, there may be many regulations and restrictions upon the use of private property under the so called police power which do not amount to a taking of the property and which rest upon the general power to legislate for the public safety, health, morals, and welfare. We are of opinion that the proposed act is not a taking. There is no provision for a formal taking, and title will remain in the owner as will also the possession and usufruct for nearly all purposes, even though restricted in ways that conceivably may in occasional instances bear down heavily. See American Unitarian Association v. Commonwealth, 193 Mass. 470, 476-477.
But the zoning regulations are in general directly related to the public safety and health, and less directly to the public morals. The proposed act can hardly be said in any ordinary sense to relate to the public safety, health, or morals. Can it rest upon the less definite and more inclusive ground that it serves the public welfare? The term public welfare has never been and cannot be precisely defined. Sometimes it has been said to include public convenience, comfort, peace and order, prosperity, and similar concepts, but not to include “mere expediency.” Opinion of the Justices, 234 Mass. 597, 603. And it has been held or stated that aesthetic considerations alone are not enough, but that they may be taken into account, if the primary objects of the regulation are sufficient to justify it. Commonwealth v. Boston Advertising Co. 188 Mass. 348. Welch v. Swasey, 193 Mass. 364, affirmed 214 U. S. 91. Ayer v. Commissioners on Height of Buildings in Boston, 242 Mass. 30, 34-35. General Outdoor Advertising Co. Inc. v. Department of Public Works, 289 Mass. 149, 184-185, appeals dismissed 296 U. S. 543, 297 U. S. 725. 122 Main Street Corp. v. Brockton, 323 Mass. 646 (a case of a peculiarly burden
The definition of the purpose of the proposed act as set forth in § 1 is along these same lines and includes “the preservation and protection of historic buildings, places and districts of historic interest; through the development of an appropriate setting for these buildings, places and districts; and through the benefits resulting to the economy of Nantucket in developing and maintaining its vacation-travel industry through the promotion of these historic associations.” In the case of New Bedford v. New Bedford,
It is not difficult to imagine how the erection of a few wholly incongruous structures might destroy one of the principal assets of the town, and we assume that the boundaries of the districts are so drawn as to include only areas óf special value to the public because of possession of those characteristics which it is the purpose of the act to preserve.
We think the requirements of the proposed act are not too indefinite or lacking in sufficient standards. The act does not require anything to be done to existing structures with the possible exception of signs (§6). With the same possible exception, it applies only to exterior archi
We are of opinion that in a general sense the proposed act would be an act for the promotion of the public welfare and would be constitutional, and we answer the questions on that basis. There might, however, be particular instances in which decisions of the commission, because of peculiar hardship and remoteness from the legitimate purposes of the act, would be unconstitutional applications of it. This has occurred at times in the application of the zoning laws. See Nectow v. Cambridge, 277 U. S. 183; Pittsfield v. Oleksak, 313 Mass. 553; Barney & Carey Co. v. Milton, 324 Mass. 440, 444-445, 449; Butler v. East Bridgewater, 330 Mass. 33, 39-40.
With the qualification last mentioned we answer questions 1 and 4 “Yes” and questions 11 and 12 “No.” We answer questions 2 and 3 “Yes,” although it would seem that refusal to permit the removal of some old and decrepit structure impossible to repair within reasonable cost might in some instances be an unconstitutional application of the act, and while the regulation of signs would be quite appropriate in a residential district, the proposed limitations, if applied to a commercial enterprise on a business street, could perhaps in some instances be found unduly restrictive. We answer question 5 “No,” since the act
Stanley E. Qua.
Henry T. Lummus.
James J. Ronan.
Raymond S. Wilkins.
John Y. Spalding.
Harold P. Williams.
Edward A. Counihan, Jr.