MISC 86733

April 13, 1978

Middlesex, ss.

Sullivan, J.


The plaintiff, Helen Keough, of Medford in the County of Middlesex has been the owner since 1965, originally with her former husband and since 1970, singly, of the premises now known as and numbered 52 Washington Street in said city. The premises were purchased by the plaintiff and her then husband as a two-family home and were occupied as such during the entire period of her ownership. She learned for the first time in 1977, when she attempted to sell the locus, that the applicable zoning called for single-family residences. This complaint pursuant to G. L. c. 240, §14A and c. 185, §l (j1/2) followed. The plaintiff argues that the zoning ordinance as applied to her property is constitutionally infirm.

A trial was held at the Land Court on February 24, 1978. The court and counsel took a view on March 1, 1978.

On all the evidence I find and rule as follows:

The house at 52 Washington Street appears to have been built about 1845 as a single-family home. It now consists of two separate apartments each with its own entrance, mailbox, kitchen, bathroom and furnace, in one case, oil and in the other, gas. There is a four room apartment on the first floor and a five room apartment on the second floor with an additional room in the attic. The City of Medford adopted its zoning ordinance in 1925 when the premises were included in a single-family residence district. The property on the opposite side of Washington Street is zoned for apartments. In the triangular block bounded by Washington, Newcomb and Franklin Streets there are at least five multi-unit dwellings from a total of approximately eleven buildings. At least two of the single-family residences are of a duplex nature with the property line bisecting the building. Route 93 is close by as is the Elks Lodge. No evidence was introduced as to whether the other two-family homes in the neighborhood were rebuilt prior to the adoption of the zoning ordinance, were authorized by variance or were the product of a fact situation akin to the plaintiff's. From 1951 on the records of the Medford Board of Assessors describe the premises as two-family. Previous to 1951 the building was characterized as a "dwelling" which would denote a single-family residence. There are no extant city records which authorize the construction of the building or its conversion. It is apparent from a view, however, that it was not initially built as a two-family home. The City of Medford is not attempting to enforce the zoning ordinance against the plaintiff. Rather it is the plaintiff's inability to sell her home which has led to the present proceeding. The cost of conversion of the building to a single-family dwelling would be prohibitive in view of the nature of the neighborhood, and it can be sold only as a two-family house.

The record is silent as to the type of homes which characterized the block which is the site of the plaintiff's property in 1925. Presumably the single-family dwelling predominated, for otherwise it is doubtful that the initial zoning would have so classified the area. It seems unlikely, however, that if the ordinance were enacted in 1978, the block where the plaintiff's property is located would be placed in a single-family district. One recourse therefore open to the plaintiff is to petition the City Council for a change of zone. It does not seem to me, however, that this should be the plaintiff's sole remedy. She is unable, however, to secure the benefits of a nonconforming use since she has not sustained the burden of proving that the conversion occurred prior to the adoption of zoning in Medford. Colabufalo v. Public Buildings Commissioner, 332 Mass. 748 , 751 (1955); City of Everett v. Capitol Motor Transportation Co., 330 Mass. 417 , 420-21 (1953). Nor can she invoke the limited statute of limitations incorporated in G. L. c. 40A, §7 [Note 1] since firstly, it applies to actions brought against those in the plaintiff's position and secondly, it has not been established that the conversion was done pursuant to a building permit. Nevertheless, the plaintiff is not without recourse. It would be violative of her rights to hold that the plaintiff's property was subject to the use provisions of the zoning ordinance enacted in 1925 in the light of the present character of the neighborhood. To so apply the zoning ordinance would be arbitrary and unreasonable. As was said in Jenckes v. Building Commissioner of Brookline, 341 Mass. 162 (1960), "[t]he injury to the owner of this isolated lot is so harsh and substantial in comparison with the trivial public benefit, if any, from application of the [ordinance] to the lot, as to make that application confiscatory and an invalid taking of the owner's property, not justified by the police power." Id. at 166; accord Aronson v. Town of Sharon, 346 Mass. 598 , 603 (1964); Barney & Carey Co. v. Town of Milton, 324 Mass. 440 , 445 (1949); City of Pittsfield v. Oleksak, 313 Mass. 553 , 555-56 (1943).

So far as appears from the evidence, the conversion of the plaintiff's house was done without benefit of permit. Nothing herein is to be construed as in any way an approval of such action. But city officials have been aware of this for at least twenty-seven years. The plaintiff had no part in any illegality, and is the innocent victim of an earlier failure to enforce the zoning ordinance strictly. The present state of the neighborhood proscribes an attempt to do so now.

The plaintiff's requests for rulings of law numbers 1, 2, 7, 8 and 9 are granted, and the others are denied. As to Request No. 3 there was no evidence introduced in support thereof.

Judgment accordingly.


[Note 1] No action, suit or proceeding shall be maintained in any court) nor any administrative or other action taken to recover a fine or damages or to compel the removal, alteration, or relocation of any structure or part of a structure or alteration of a structure by reason of any violation of any zoning by-law or ordinance except in accordance with the provisions of this section, section eight and section seventeen, provided, however, if real property has been improved and used in accordance with the terms of the original building permit issued by a person duly authorized to issue such permits, no action, criminal or civil, the effect or purpose of which is to compel the abandonment, limitation or modification of the use allowed by said permit or the removal, alteration or relocation of any structure erected in reliance upon said permit by reason of any alleged violation of the provisions of this chapter, or of any ordinance or by-law adopted thereunder, shall be maintained, unless such action, suit or proceeding is commenced and notice thereof recorded in the registry of deeds for each county or district in which the land lies within six years next after the commencement of the alleged violation of law. Such notice shall include names of one or more of the owners of record, the name of the person initiating the action, and adequate identification of the structure and the alleged violation.