Judicial Review

Author:Christian Turner
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)
Messrs. Judson Hannigan and John E. Hannigan for plaintiff in
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
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
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
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
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.

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