Judicial Review

• Author: Christian Turner
• Pages: 116-450

3. Judicial Review

3.1. Substantive Due Process

3.1.1. Federal Courts

Nectow v. City of Cambridge et al.

277 U.S. 183 (1928)

ERROR TO THE SUPREME JUDICIAL COURT OF

MASSACHUSETTS.

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.

MR. JUSTICE SUTHERLAND delivered the opinion of the

Court.

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.

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

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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.

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,

although it was once occupied by a mansion house. 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

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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:

“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.”

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.

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 safety or

the public welfare in its proper sense.” Euclid v. Ambler Co.,

supra, p. 395.