347 Mass. 302

February 4, 1964 - April 10, 1964

Suffolk County


On the facts, the zoning by-law of a growing town, more than twenty-five percent of which was swampy, was not invalid as arbitrary, unreasonable and unrelated to statutory zoning purposes in placing in a residential zoning district a parcel of approximately 3.4 acres located in the immediate vicinity of several homes, although much of the parcel was swampy and developing it for residences would involve substantial cost and might not result in maximum profit to the landowner.

PETITION filed in the Land Court on August 7, 1962.

The case was heard by Cotton, J.

Avram G. Hammer (Richard C. Sheppard with him) for the petitioners.

David H. Morse for the respondent.

SPIEGEL, J. This is a petition brought in the Land Court under the provisions of G. L. c. 185, Section 1 (j 1/2), and c. 240, Section 14A, both inserted by St. 1934, c. 263, to determine the validity of a zoning by-law of the town of Wilmington (town) as it affects the petitioners' land. The petitioners appealed from the judge's decision that the "zoning by-laws of the Town . . . as applied to petitioners' land . . . [are] valid."

The judge viewed the locus and "stopped on Route 93 which is elevated above locus and viewed locus and neighboring area." The rather extensive decision of the judge reviews the allegations of the petitioners and the answer of the town, states portions of the evidence, and incorporates by reference all of the exhibits. We are of opinion that a number of the statements included in the judge's decision are intended to be findings of fact and we so treat them. In any event the substantive facts do not appear to be in dispute and need not be stated in detail. The petitioners own a tract of land consisting of approximately 3.4 acres. Under the 1955 zoning by-law, the entire tract was placed in a

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single residence A district. [Note 1] Much of the petitioners' tract is swampy, as is more than twenty-five per cent of the town. In 1962 the petitioners submitted a "`Preliminary Subdivision' of part of their land" (including the locus which they maintain is invalidly zoned) to the town's health officer, but he did not consider most of the locus "suitable for the disposal of domestic sewage." The estimated cost of rendering the land more suitable for residential development is $102,500. Since 1955, the town has experienced an increase of approximately fifty per cent in population and in the number of homes.

The standard by which the validity of a zoning by-law is to be determined has been stated frequently in the opinions of this court. "Every presumption is to be afforded in favor of the validity of an ordinance and if its reasonableness is fairly debatable the judgment of the local authorities who gave it its being will prevail. . . . It will be sustained unless there exists no substantial relation between it and the expressed purposes of the statute. Conversely, it will be held invalid if it be arbitrary or unreasonable, or substantially unrelated to the public health, safety, convenience, morals or welfare" (citations omitted). Schertzer v. Somerville, 345 Mass. 747 , 751. Massachusetts Broken Stone Co. v. Weston, 346 Mass. 657 , 659-660. "The burden is on the petitioner to show that the by-law is in conflict with the enabling act or with applicable statutory provisions." Massachusetts Broken Stone Co. v. Weston, supra, 660. Pierce v. Wellesley, 336 Mass. 517 , 521. In the instant case, we are of opinion that the petitioners have not satisfied this burden.

In their brief the petitioners argue that the Wilmington zoning by-law is invalid as applied to their locus, mainly on the basis of this court's holding in the case of Barney & Carey Co. v. Milton, 324 Mass. 440 . In that case, the trial judge had upheld a zoning by-law largely on the basis of aesthetic considerations. The petitioner was the owner of

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isolated land which was partly swamp; there was no "present market for such land as sites for homes" (p. 446). The trial judge apparently reasoned that the presence of commercial structures on this land might "give one approaching the town a wrong impression of the residential character of the town" and would adversely affect the "view from the residences" on a hill "some distance away" (pp. 447-448). This court said that aesthetic considerations "do not alone justify restrictions upon private property." Barney & Carey Co. v. Milton, supra, 448.

As in the Barney & Carey case, supra, the present petitioners' land is partly marsh and the cost of developing this land for residential housing would be substantial. But here the similarity ends. In the present case, the petitioners' land is not isolated; the aerial photograph shows that there are several homes in the immediate vicinity. There is nothing in the record to indicate that if the petitioners' land were developed for home sites, a market for this land or for the homes that could be built thereon would be lacking, nor is there any reason for us to conclude that the land is substantially better suited for nonresidential uses. The zoning by-law before us does not appear to have been adopted only because of aesthetic considerations; on the contrary, the judge of the Land Court stated that the 1955 zoning ordinance, as applied to the petitioners' land, "has a substantial and reasonable relation to the public welfare of the town." Finally, the judge in substance asserted that, in view of the prevalence of marshland in Wilmington, to invalidate the zoning by-law as applied to the petitioners' tract would be to "deny the town an opportunity to adopt any zoning." It may well be that the zoning by-law does not permit the petitioners to realize maximum profits from the use of their land, but this is not sufficient cause to invalidate it. Kaplan v. Boston, 330 Mass. 381 , 384. Massachusetts Broken Stone Co. v. Weston, supra.

Decision affirmed.


[Note 1] A residential district in which the minimum lot area for permitted uses is 22,500 square feet.