Vagts v. Superintendent & Inspector of Buildings of Cambridge
Vagts v. Superintendent & Inspector of Buildings of Cambridge
Opinion of the Court
This is a petition for writs of mandamus ordering the superintendent and inspector of buildings of Cambridge to enforce the zoning ordinance of that city as it existed prior to adoption by the city council on or about June 26, 1967, of an ordinance purporting to amend the zoning map of the city, and ordering the city clerk to expunge the amending ordinance from the records. Lawrence J. Harrington, an owner of property within the locus subject to the amending ordinance, was permitted to intervene. Following hearing the judge entered an order for judgment dismissing the petition. The petitioners appealed. There is a report of the evidence.
We first refer to the findings of the judge. The city council of Cambridge on June 26, 1967, adopted ordinance
The petitioners have argued strongly to us that the amending ordinance constituted spot zoning, that the ordinance has no substantial relation to the purposes of zoning, and that no change in or about the locus justified the amendment. They have also referred to the adverse recommendation of the planning board on the petition of the intervener to the city council which brought forth the amending ordinance. It is apparent from the record and the evidence in this case that the petitioners, residents of a comparatively quiet street of single family houses, which in the main have been improved rather than otherwise in recent years, have concern over the pressures in a city of comparatively small geographical area which impel the city council to that form of relief which lies in the construction of high rise buildings. These circumstances cannot blind us to the principles which govern these matters and to the proper application of them.
These principles have been repeatedly stated. Whether ordinance No. 757 was valid lies in the determination of whether it complied with the enabling statute. Caires v. Building Commr. of Hingham, 323 Mass. 589, 594. “Every presumption is to be made in favor of the amendment and its validity will be upheld unless it is shown beyond reasonable doubt that it conflicts with the enabling act.” Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220, 228. If it
The area of the locus is approximately 92,188 square feet. It is situated on a main artery in a city in which there is a substantial demand for housing, the demand for single family houses being low because of high land cost which erects an economic barrier against that type of development. There evidently exists a general need for apartment house construction. The locus rezoned has already taken on the characteristics of a “Residence C-3” area with existing uses and an outstanding variance for a “Residence C-3 ” use. It certainly more closely resembles those uses in the “Residence C-3” area across Massachusetts Avenue than it does the “Residence C-2” attributes of the area immediately to its west. That the planning board recommended a denial of the intervener’s petition for a zoning change before the city council (with which the city planning director did not agree) is not persuasive. This report was advisory only in nature and not binding upon the council. Noonan v. Moulton, 348 Mass. 633, 639. The evidence does not convince us that the property of the petitioners on Folien Street will be adversely affected by the zoning change. Even if this were so the ordinance on that fact alone would not be rendered invalid. Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220, 228.
In short, having considered the findings, the evidence, and the action of the council viewed in the light of the enabling act, we are of opinion that the judge did not err.
Order for judgment affirmed.
The petitioners have correctly described these differences in their brief, pointing out that in art. V, § 2, of the zoning ordinance in “Residence C-3” districts “(1) the maximum ratio of floor area to lot area increases from 1.75 to 3.0; (2) the minimum lot space per dwelling unit diminishes from 600 square feet to 300; (3) the minimum set-back at the sides is reduced from % of the sum of height plus the length of the wall of the building parallel to the sides to %; (4) the minimum set-back at the rear is reduced from % of the sum of the height plus the length of the rear wall to Vs; (5) the requirement of ‘usable open space’ is reduced from 15% to 10% of the lot area; and (6) the maximum height limit of 85 feet in effect in a C-2 zone is abolished.”
Reference
- Full Case Name
- Detlev F. Vagts & others v. Superintendent and Inspector of Buildings of Cambridge & another
- Cited By
- 2 cases
- Status
- Published