309 Mass. 200 | Mass. | 1941
The suit comes before this court on reservation and report by a judge of the Superior Court upon a case
The question is presented whether a by-law of the plaintiff town is valid. All formalities required for its adoption were complied with. Both parties concede that it was adopted under the provisions of G. L. (Ter. Ed.) c. 40, § 21, which, so far as material, reads as follows: “Towns may, for the purposes hereinafter named, make such orders and by-laws, not repugnant to law, as they may judge most conducive to their welfare, which shall be binding upon all inhabitants thereof and all persons within their limits . . . (1) For directing and managing their prudential affairs, preserving peace and good order, and maintaining their internal police.” The by-law is as follows: “The removal for sale of loam, sand, gravel or quarried stone, bordering on or within 250 feet of a street line shall not be permitted except by permit from the Board of Appeals. No loam to be removed for sale for more than one-half of its depth in any part of the Town, except when incidental to, and in connection with the construction of a building, for which a permit has been issued.” The defendant Laura Drinkwater has title to and control of the premises in question, to which the plaintiff seeks to apply said by-law, and the other defendant, her husband, is engaged in the contracting business. The defendants have been removing loam and sand from the premises since November, 1935, and intend to continue this removal for purposes of sale. A portion of the premises is within two hundred fifty feet of street lines. They also intend to remove for sale loam, to an extent of more than one half its depth, from a portion of the premises and in the rear of a point two hundred fifty feet from street lines. The prayers of the bill are, in substance, that the defendants and their agents be enjoined from making any further use of the premises in question “for the unlawful purposes” described in the bill.
From time to time the Legislature has seen fit specifically to add to the purposes for which ordinances and by-laws may be adopted. See G. L. (Ter. Ed.) c. 40, §§ 21-24, inclusive. The plaintiff concedes that the by-law in question is not a zoning by-law adopted under the provisions of said c. 40, §§ 25-30A, inclusive, as amended. It may be observed that the statutes relating to zoning and the delegation of the power therein contained to * municipalities are based upon art. 60 of the Amendments to the Constitution of the Commonwealth. Opinion of the Justices, 234 Mass. 597, 601-603. Inspector of Buildings of Lowell v. Stoklosa, 250 Mass. 52, 58, 59. Bennett v. Board of Appeal of Cambridge, 268 Mass. 419, 422. The case of Lexington v. Menotomy Trust Co. 304 Mass. 283, therefore, has no application. See Wilbur v. Newton, 302 Mass. 38, 44. We think it follows from what has been said that, by said § 21, the Legislature did not transfer to municipalities the entire police power of the Commonwealth.
An attempt to regulate the affairs of property owners is subject to investigation in the courts with a view to determining whether there has been a lawful exercise by the town of the power conferred. Inspector of Buildings of Lowell v. Stoklosa, 250 Mass. 52, 62. The question here is not whether some restriction on the use of land has been imposed directly by an act of the Legislature. See Common
In terms, the by-law deals directly with the right of an individual to make an otherwise lawful use of his land. It seeks to prevent the removal and sale of the component parts of the land. In our opinion it attempts to cover a broader field than that permitted. Commonwealth v. Drew, 208 Mass. 493. Goldstein v. Conner, 212 Mass. 57, 58, 59. Furthermore, as was pointed out in the case last cited, the by-law purports to leave to the board of appeals the unrestrained and undefined authority to grant or refuse permits for which the by-law purports to make provisions. It was there said, at page 59: “A use of property lawful in itself and having no essential tendency toward harm to the public, while it may be subject to reasonable regulation, cannot be made utterly dependent upon the unrestrained arbitrament of the board of aldermen.”
We do not go beyond the point of deciding that the adoption of the by-law in question was not authorized by the provisions of said § 21 (1). It is unnecessary to consider other possible questions. A decree is to be entered dismissing the bill with costs.
Ordered accordingly.