MISC 81941

December 15, 1977

Randall, J.


This case comes before the Court on plaintiffs' complaint under G. L. c. 185, §1(j 1/2) and c. 240, §14A to determine the validity of certain provisions of the zoning by-laws of the town of North Reading.

By deed (Exhibit No. 6) dated March 20, 1970, plaintiffs acquired title to a parcel of vacant land comprising approximately 2.3 acres located in North Reading. The parcel lies between Oakdale Road Extension and Maple Road Extension with frontage of approximately 200 feet on the former and 100 feet on the latter. The plaintiffs seek to construct a single family house on this parcel.

The plaintiffs were denied a building permit by the Board of Appeals for safety and financial reasons in 1971 (Exhibit No. 10) from which they did not appeal. They were again denied a building permit by the Board of Appeals in its decision of November 15, 1973, (Exhibit No. 11) on the ground that the town zoning by-laws, effective May 8, 1973, require frontage on a street having a right of way width of 21 or more feet. This decision was appealed to the District Court which affirmed the action of the Board. In turn, the District Court's decision was appealed to the Superior Court but this appeal is not being pursued.

Oakdale Road Extension, the way on which plaintiffs propose to front, was laid out with a right of way width of approximately 12 feet. (Exhibit No. 7). There has been no dispute that plaintiffs' parcel complies with the minimum frontage (160 feet), area, and/or other zoning requirements.

The following provisions of section 2 of the defendant's zoning by-laws, effective May 8, 1973, (Exhibit No. 1) have been brought into question by plaintiffs' petition:

"Lot Frontage: The horizontal distance measured along the front lot line between the points of intersection of the side lot lines with the front lot line. Frontage for purposes of this By-Law shall be only continuous frontage.

Lot Line, Front: The property line dividing a lot from a street right-of-way.

Street: A way open to the public which is twenty-one (21) or more feet in right-of-way width."

The Board of Appeals' interpreted the above provisions to prohibit building upon a lot fronting upon a way having less than twenty-one feet in right of way width, even though the lot satisfies the minimum frontage (160 feet) requirement. The plaintiffs argue that the above provisions as so interpreted cannot be validly applied to the plaintiffs' lot. (Plaintiffs' brief, p. 6).

It is an established principle that "a zoning by-law cannot properly be applied to a specific parcel of land, where, by reason of 'attending peculiar circumstances ... the imposition of the ... regulation ... has no real or substantial relation to the public safety, public health or public welfare.'" Jenckes v. Building Commissioner of Brookline, 341 Mass. 162 , 166 (1960). In order to determine whether plaintiffs come within this principle it is necessary to examine the relevant facts with respect to plaintiffs' parcel.

The trial was held on June 16, 1977 at which a stenographer was duly sworn to record and transcribe the testimony. Certain facts were stipulated hereto and fifteen exhibits were introduced into evidence; these are incorporated by reference herein for the purpose of any appeal. Attorney Alfred L. Daniels represented the town of North Reading at the time of the trial but resigned as town counsel shortly thereafter and filed his withdrawal from this case. The town was then represented by Attorney Eric W. Wodlinger, who was present at the view taken on July 19, 1977, along with plaintiffs and their counsel. Mr. Wodlinger filed a brief on behalf of the town.

Based on the above, the Court makes the following findings.

Oakdale Road Extension, a dead end way approximately 1671 feet in length (Exhibit Nos. 2A and 2B), has not been laid out or dedicated and accepted as a public way in North Reading (stipulation # 1, Tr. 8), but it is open to public use. It was laid out with a right of way width of approximately 12 feet (Exhibit No. 7). The actual travel width varies from 21 feet 10 inches to 10 feet 4 inches with the most common width being 16 feet. (Transcript 20-26.). There are at least 4 narrow points measuring 12', 12' 11", 10' 4 1/2" and 10' 4" occasioned by rocks, trees and telephone poles abutting the road. (Tr. 20, 21; Exhibit No. 14) It has a hard packed sandy surface, inclement weather at least. At most places vehicles are able to pass one another. (Tr. 44). Fire, engines, police vehicles and ambulances have been and are able to traverse Oakdale Road Extension. (Tr. 42-43).

Oakdale Road Extension has been maintained by the town to the extent of filling in some holes, grading, and plowing the street in winter. (Tr. 40). The town also provides rubbish and garbage collection for the houses on the street. (Tr. 41). There are no public water supply lines in the road and the nearest fire hydrant is 2500 feet from the Monaghan lot. (Tr. 8, Stipulation No. 2; Exhibit No. 10)

There are 27 lots which abut on Oakdale Road Extension. Of these lots, 9 are owned by the town, 15 are privately owned and vacant, and three have dwellings upon them. One of the later is at the corner of Oakdale Road Extension and Juniper Road, a paved way. (Exhibit Nos. 2A and 2B). In addition, there is a dwelling upon lot 12, one corner of which adjoins one corner of Oakdale Road Extension but does not otherwise abut thereon. However, Oakdale Road Extension is the only apparent means of access to this lot 12. The plaintiffs' lot is approximately 70 feet in a southerly direction from the end of the street and lot 12.

Prior to the enactment of the present town zoning by-law which became effective on May 8, 1973, there was no zoning by-law regulation relating to type or width or condition of the street or way on which the front lot line abutted. (Stipulation No.4, Tr. 9).

Upon the application for a building permit to construct a building upon a lot with frontage on an accepted street, the Building Inspector of North Reading does not require proof either of the right of way or the constructed width of the accepted street. (Stipulation No. 5, Tr. 9).

There are two accepted streets in North Reading, Shore Road and Hillside, which as laid out have less than a 21 foot right of way width. (Tr. 50-51) In addition there are a number of streets in North Reading with less than twenty-one feet of actual travel width. (Tr. 53).

Plaintiff argues in substance first, that the by-law is arbitrary in that the 21 foot right of way requirement, in operational effect, bears no rational relationship to the public health, safety or welfare.

In support of this argument, plaintiffs point out that if public safety is an intended objective of the by-law, actual constructed travel width should be the relevant criterion, not the right of way width. They have shown and the Court has found that there are at least two accepted streets in North Reading with less than 21 feet right of way width and that there are a further number of streets with less than 21 feet of actual travel width. The evidence does not indicate, however, that these other streets approach the character of Oakdale Road Extension, i.e., an unpaved road with average travel width of 16 feet and narrow points of 10' 4". Nor is there any evidence that in general the disparity between constructed travel width and right of way width is of such a magnitude as to render the by-law unrelated to public safety.

A second ground upon which plaintiffs claim the by-law is arbitrary and unrelated to public safety is based upon the stipulated town practice of not requiring proof of right of way width with respect to applications for building permits to lots fronting on accepted streets. Without passing on the validity of the town practice, i.e., whether under the existing by-law a building permit can be validly granted for construction upon a lot fronting on an accepted street with less than 21 feet of right of way, it is enough to note that if the by-law has been misapplied, it is the misapplication, not the by-law itself, which is invalid.

Plaintiffs suggest alternative means the town might employ to achieve its public safety objective such as exercising its eminent domain power in order to widen the road. However, the test of the validity of a zoning by-law is not whether the town has chosen the least restrictive means to accomplish its objective, but whether it can be said that the by-law bears a rational relationship to the public health, safety or welfare. Crall v. Leominster, 362 Mass. 95 , 101 (1972). The plaintiffs have the burden of proof on this point and have not sustained it.

Secondly, the plaintiffs argue that even if the by-law is valid on its face, the effect of it is to deprive their land of all substantial value.

The defendant disputes this second argument pointing out that while the 21 foot right of way requirement bars residential construction, it does not bar other uses in residential districts either as of right or by special permit. Such uses are:

"Town or non-profit outdoor, recreational facility;

Woodland, grassland or wetland use;

Farm, including agriculture, horticulture, and floriculture;

Raising and keeping of livestock, horses and poultry in connection with the operation of a farm."

Exhibit No. 1, §5.4 However, the defendant fails to note that such uses are subject to all other provisions of the zoning by-laws, see exhibit No.1, §5.3, one of which is minimum frontage requirements. Exhibit No. 1, p. 18. Just as the definitions of "lot frontage", "lot line, front" and "street" were construed to prohibit residential use unless frontage were upon a way 21 or more feet in right of way width, so too might these definitions operate to prohibit one or more of the above uses on the plaintiffs' lot. Whether the town would apply its by-law so as to prevent any or all of the above uses and whether the by-law as applied would be unconstitutional have not been demonstrated. Thus, on this state of the evidence, the Court addresses only the question whether the 21 foot right of way by-law can be validly applied to prohibit residential use of the plaintiffs' lot, assuming other uses such as woodland and agricultural remain open to the plaintiffs.

The plaintiffs place reliance on Jenckes v. Building Commissioner of Brookline, 341 Mass. 162 (1960), a decision invalidating a zoning by-law requiring a 40 foot right of way as applied to a lot fronting on a way with paved surface between 19 and 20 feet throughout except for a short distance where the paved surface was 15.7 feet. Jenckes, at 164, n.2. There are two determinative differences between the Jenckes case and the present case. First, the effect of the by-law in the Jenckes case was to deprive plaintiffs' locus of all practical value. Even agricultural use was apparently forbidden. Id. 165. Here, in contrast, as plaintiffs have not demonstrated what uses, other than residential, are denied them, it cannot be concluded plaintiffs are denied all practical use or value of their land. [Note 1] See Iddings v. Board of Appeals of Mansfield, 356 Mass. 742 , 743 (1970). The fact that plaintiffs may be substantially restricted in the use of their land as the result of the operation of a zoning by-law does not by itself establish an unconstitutional deprivation of property. Turnpike Realty Company, Inc. v. Dedham, 362 Mass. 221 (1972).

The second determinative difference between Jenckes and the present case concerns the public benefits to be derived from the application of the by-law. Jenckes involved the application of a zoning by-law to an "isolated undeveloped lot in an older, high value area of large lots already containing single residences." Id., 165. In the circumstance of a highly developed area, the additional safety hazard posed by the construction of one additional residence is little. Thus, in Jenckes the public benefit to be achieved by the application of the town by-law was trivial if not non-existent. Id., 166. Here, in contrast, the plaintiffs' lot is located in a largely undeveloped area. The by-law is an attempt by the town to channel development, to guard in advance against the construction of residences upon inadequate ways. Plaintiffs here are not in the unique situation of Jenckes of occupying an "isolated undeveloped" lot, and thus it cannot be said that the application of the town by-law is of trivial public benefit.

The Court finds and rules that the town's 2l-foot right of way requirement serves a valid public safety purpose and does not effect an unconstitutional deprivation of property as applied to the plaintiffs lot.

The Court orders that the complaint be dismissed.


[Note 1] In connection with the issue of value, it is noted that plaintiffs introduced no evidence of diminution in market value of their land as a result of the 1973 zoning by-law. The plaintiffs purchased their lot in 1970 for $1,600.