Nectow v. City of Cambridge

NECTOW v. CITY OF CAMBRIDGE ET AL.

Error to the Supreme Judicial Court of Massachusetts.

No. 509. Argued April 19, 1928 — Decided May 14, 1928.

260 Mass. 441, reversed.

Error to a judgment of the Supreme Judicial Court of Massachusetts which dismissed a bill brought in that court by Nectow for a mandatory injunction directing the city and its building inspector to pass upon an application to erect any lawful buildings upon his land without regard to an ordinance including it within a restricted residential district.

Messrs. Judson Hannigan and John E. Hannigan for plaintiff in error. Mr. Peter J. Nelligan, with whom Messrs. J. Edward Nally and Joseph P. Lyons were on the brief, for defendants in error.

The report occupies pages 183 through 189 of volume 277 of the United States Reports. The opinion of the Court, delivered by Mr. Justice Sutherland, begins at page 185 and closes at page 189. The report records no separate opinion.

[277 U.S. 183] “The inclusion of private land in a residential district under a zoning ordinance, with resulting inhibition of its use for business and industrial buildings to the serious damage of the owner, violates the Fourteenth Amendment if the health, safety, convenience or general welfare of the part of the city affected will not be promoted thereby. P. 188.”

[277 U.S. 185] “A zoning ordinance of the City of Cambridge divides the city into three kinds of districts: residential, business and unrestricted. Each of these districts is sub-classified in respect of the kind of buildings which may be erected. The ordinance is an elaborate one, and of the same general character as that considered by this Court in Euclid v. Ambler Co., 272 U. S. 365. In its general scope it is conceded to be constitutional within that decision. The land of plaintiff in error was put in district R-3, in which are permitted only dwellings, hotels, clubs, churches, schools, philanthropic institutions, greenhouses and gardening, with customary incidental accessories. The attack upon the ordinance is that, as specifically applied to plaintiff in error, it deprived him of his property without due process of law in contravention of the Fourteenth Amendment.”

[277 U.S. 186] “The suit was for a mandatory injunction directing the city and its inspector of buildings to pass upon an application of the plaintiff in error for a permit to erect any lawful buildings upon a tract of land without regard to the provisions of the ordinance including such tract within a residential district. The case was referred to a master to make and report findings of fact. After a view of the premises and the surrounding territory, and a hearing, the master made and reported his findings. The case came on to be heard by a justice of the court, who, after confirming the master's report, reported the case for the determination of the full court. Upon consideration, that court sustained the ordinance as applied to plaintiff in error, and dismissed the bill. 260 Mass. 441.”

[277 U.S. 186] “A condensed statement of facts, taken from the master's report, is all that is necessary. When the zoning ordinance was enacted, plaintiff in error was and still is the owner of a tract of land containing 140,000 square feet, of which the locus here in question is a part. The locus contains about 29,000 square feet, with a frontage on Brookline street, lying west, of 304.75 feet, on Henry street, lying north, of 100 feet, on the other land of the plaintiff in error, lying east, of 264 feet, and on land of the Ford Motor Company, lying southerly, of 75 feet. The territory lying east and south is unrestricted. The lands beyond Henry street to the north and beyond Brookline street to the west are within a restricted residential district. The effect of the zoning is to separate from the west end of plaintiff in error's tract a strip 100 feet in width. The Ford Motor Company has a large auto assembling factory south of the locus; and a soap factory and the tracks of the Boston & Albany Railroad lie near. Opposite the locus, on Brookline street, and included in the same district, there are some residences; and opposite the locus, on Henry street, and in the same district, are other residences. The locus is now vacant, [277 U.S. 187] although it was once occupied by a mansion house.”

[277 U.S. 187] “Before the passage of the ordinance in question, plaintiff in error had outstanding a contract for the sale of the greater part of his entire tract of land for the sum of $63,000. Because of the zoning restrictions, the purchaser refused to comply with the contract. Under the ordinance, business and industry of all sorts are excluded from the locus, while the remainder of the tract is unrestricted. It further appears that provision has been made for widening Brookline street, the effect of which, if carried out, will be to reduce the depth of the locus to 65 feet. After a statement at length of further facts, the master finds ‘that no practical use can be made of the land in question for residential purposes, because among other reasons herein related, there would not be adequate return on the amount of any investment for the development of the property.’ The last finding of the master is:”

[277 U.S. 187] “‘I am satisfied that the districting of the plaintiff's land in a residence district would not promote the health, safety, convenience and general welfare of the inhabitants of that part of the defendant City, taking into account the natural development thereof and the character of the district and the resulting benefit to accrue to the whole City and I so find.’”

[277 U.S. 187] “It is made pretty clear that because of the industrial and railroad purposes to which the immediately adjoining lands to the south and east have been devoted and for which they are zoned, the locus is of comparatively little value for the limited uses permitted by the ordinance.”

[277 U.S. 187] “We quite agree with the opinion expressed below that a court should not set aside the determination of public officers in such a matter unless it is clear that their action ‘has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public [277 U.S. 188] safety or the public welfare in its proper sense.’ Euclid v. Ambler Co., supra, p. 395.”

[277 U.S. 188] “An inspection of a plat of the city upon which the zoning districts are outlined, taken in connection with the master's findings, shows with reasonable certainty that the inclusion of the locus in question is not indispensable to the general plan. The boundary line of the residential district before reaching the locus runs for some distance along the streets, and to exclude the locus from the residential district requires only that such line shall be continued 100 feet further along Henry street and thence south along Brookline street. There does not appear to be any reason why this should not be done. Nevertheless, if that were all, we should not be warranted in substituting our judgment for that of the zoning authorities primarily charged with the duty and responsibility of determining the question. Zahn v. Bd. of Public Works, 274 U. S. 325, 328, and cases cited. But that is not all.”

[277 U.S. 188] “The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare. Euclid v. Ambler Co., supra, p. 395. Here, the express finding of the master, already quoted, confirmed by the court below, is that the health, safety, convenience and general welfare of the inhabitants of the part of the city affected will not be promoted by the disposition made by the ordinance of the locus in question. This finding of the master, after a hearing and an inspection of the entire area affected, supported, as we think it is, by other findings of fact, is determinative of the case. That the invasion of the property of plaintiff in error was serious and highly injurious is clearly established; and, since a neces- [277 U.S. 189] sary basis for the support of that invasion is wanting, the action of the zoning authorities comes within the ban of the Fourteenth Amendment and cannot be sustained.”

[277 U.S. 189] “Judgment reversed.”

Editorial note. This record is a research edition, not a substitute for the official reporter. It reproduces the Reporter of Decisions apparatus in full and reproduces the Court's own text in extended verbatim passages arranged under the Court's own sequence of analysis, each bracketed with the official United States Reports page on which the passage appears. Passages set without quotation marks are Society prose; every quotation mark in this record encloses the Court's or the Reporter's words.

Editorial note. Because the opinion of the Court occupies only pages 185 through 189 of the bound volume, it is reproduced here in substantially its entirety. Two limitations are declared. First, the arguments of counsel printed at pages 183 through 185 are not reproduced. Second, obvious typographic and optical-scanning defects in the digitised bound volume (for example the broken rendering of “the ordinance is an elaborate one” and of “auto assembling factory” in the optical transcription) have been silently corrected against the surrounding text; no substantive word has been altered, modernised, or paraphrased inside a quotation.

Editorial note. For any purpose requiring the complete official text, consult the bound volume through the canonical source recorded with this authority.

Editorial note. Nectow owned a tract of 140,000 square feet in Cambridge, of which the disputed locus of about 29,000 square feet formed the western strip. Land immediately to the south and east was industrial and unrestricted: the Ford Motor Company's assembly plant, a soap factory, and the tracks of the Boston & Albany Railroad lay near. The zoning ordinance placed a strip 100 feet in width in residential district R-3. A pending contract for the sale of the greater part of the tract for $63,000 failed because of the restriction, and a master found on the evidence both that no practical use could be made of the locus for residential purposes and that its inclusion in the residential district would not promote the health, safety, convenience, or general welfare of the inhabitants of that part of the city.

Editorial note. Nectow brought a bill in the Supreme Judicial Court of Massachusetts for a mandatory injunction directing the city and its inspector of buildings to pass upon his permit application without regard to the ordinance. The case was referred to a master, whose report was confirmed and the case reported to the full court, which sustained the ordinance as applied and dismissed the bill, 260 Mass. 441. The Supreme Court reversed on writ of error.

Editorial note. The application of the residential classification to this parcel deprived the owner of property without due process of law. The general validity of a zoning scheme does not immunise each of its particular applications; where the findings, accepted below, establish that the restriction of a particular parcel does not serve the public objects for which the power exists and causes serious damage, the restriction cannot stand. The rule derived is that a zoning classification is open to challenge as applied to a specific parcel, and the challenge succeeds where the classification lacks a substantial relation to the public health, safety, morals, or general welfare.

Editorial note. Justice Sutherland accepted the facial validity of the ordinance under Euclid and accepted also the deference owed to the zoning authorities: a court may not set aside their determination unless it has no foundation in reason. He then observed that the plat showed the inclusion of the locus was not indispensable to the general plan, but held that this observation alone would not warrant substituting the Court's judgment for that of the city. The decisive material was the master's express finding, confirmed below, that the restriction would not promote the health, safety, convenience, or general welfare of the affected part of the city. With that finding standing, and the injury to the owner serious and highly injurious, the necessary basis for the restriction was wanting.

Editorial note. Nectow is the necessary complement to Euclid. Euclid held that districting is a legitimate exercise of the police power on its face; Nectow held that the exercise remains answerable parcel by parcel. Together the two decisions define the American structure of land-use review: broad deference to the legislative scheme, coupled with an as-applied inquiry available to the individual owner. Because the as-applied inquiry was long framed in the language of means and ends, Nectow was for many years cited in regulatory-takings argument; the treatise treats it as a due process authority, in the terms in which Lingle later confined the inquiry.

Editorial note. Followed as the foundation of as-applied zoning challenges. Its means-ends formulation was carried into takings doctrine by Agins v. City of Tiburon, 447 U.S. 255 (1980), and that use was repudiated in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), which explained that Nectow and Euclid were due process decisions and that the 'substantially advances' inquiry is not a test for a taking.

Editorial note. Read with U.S. Const. amend. XIV, § 1, and the treatise chapters on zoning and the police power and on regulatory takings.