Commonwealth v. Fossa
Commonwealth v. Fossa
Opinion of the Court
Bernard Fossa collects old automobiles, but in such fashion as caused him to be charged with transgressing c. 172, § 172-4, of the Fitchburg General Ordinances, which prohibits keeping “junked” or “inoperative” vehicles in the open. A District Court jury of six convicted Fossa of violating § 172-4, a misdemeanor, for which Fossa incurred a fine of $500,
During his lifetime (he was 69 at trial) Fossa has been a car salesman, an avid collector of cars and car memorabilia, and a member of various automobile clubs. At the time he was notified of violation of § 172-4, Fossa had approximately seventeen cars parked on private property owned by his brother and sister. Several were in view from public streets and neighbors’ properties. The oldest car was a 1935 Ford. There was a 1939 Lincoln Zephyr, a 1952 Jaguar, and a Volkswagen Beetle. The antiquity of some of the other cars moldering on the family property was doubtful. Most had been driven infrequently. Many of the cars had no air in their tires or had no tires.
The ordinance in question provides: “No person shall park, store, leave or permit the parking, storing or leaving of any motor vehicle of any kind which is in an abandoned, wrecked, dismantled, inoperative, rusted, junked or partially dismantled condition, whether attended or not, upon any private property within the city for a period of time in excess of ten (10) days. The presence of an abandoned, wrecked, dismantled, inoperative, rusted, junked or partially dismantled vehicle, or parts thereof, on private property is hereby declared a public nuisance which may be abated as such in accordance with the provisions of this section. This section shall not apply to any vehicle enclosed within a building on private property or to any vehicle held in connection with a business enterprise lawfully licensed by the city and properly operated in the appropriate business zone, pursuant to the zoning laws of the city.”
Part one of Fossa’s pro se brief argues that the Fitchburg ordinance arbitrarily prohibits him from using his private property in a safe and law
As to the underlying objective of the Fitchburg ordinance, preventing persons from keeping derelict cars, it is consistent with the power of municipalities under G. L. c. 40, § 21 (1988 ed.), to adopt ordinances or bylaws "as they may judge most conducive to their welfare.” See Commonwealth v. Lammi, 386 Mass. 299, 300 (1982). The rationale for the ordinance in this case is fairly obvious: derelict cars are to many unsightly and, apart from being visual nuisances, may attract other nuisances.
The only other point made by the defendant which warrants a response is that the ordinance is unacceptably vague. Compared to the somewhat similar ordinance held sufficient in Commonwealth v. Brask, 354 Mass. 415, 417 (1968), the Fitchburg ordinance is sufficiently precise. The statutory words, “junked,” “inoperative,” “rusted,” “dismantled” convey well recognized meaning. Id. at 419. When afforded the presumption of validity to which municipal laws are entitled against a claim of unconstitutional vagueness, Commonwealth v. Caldwell, 25 Mass. App. Ct. 91, 97 (1987), the ordinance in question handily survives judicial scrutiny. Compare Commonwealth v. Carpenter, 325 Mass. 519, 521 (1950); American Dog Owners Assn., Inc. v. Lynn, 404 Mass. 73, 78-79 (1989).
Judgment affirmed.
Section 172-6 B of the Fitchburg ordinances provides for a fine of not less than $50 nor more than $500 for the first offense. The amount of the fine is not contested.
Reference
- Full Case Name
- Commonwealth v. Bernard A. Fossa
- Cited By
- 2 cases
- Status
- Published