Town of Lexington v. Govenar

3 N.E.2d 19, 295 Mass. 31, 1936 Mass. LEXIS 1067
CourtMassachusetts Supreme Judicial Court
DecidedJune 30, 1936
StatusPublished
Cited by29 cases

This text of 3 N.E.2d 19 (Town of Lexington v. Govenar) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Town of Lexington v. Govenar, 3 N.E.2d 19, 295 Mass. 31, 1936 Mass. LEXIS 1067 (Mass. 1936).

Opinion

Crosby, J.

This is a suit in equity brought by the town of Lexington against David H. Govenar, who resides on certain premises in said town, to enjoin the maintenance of a sign and the use of his residence as a professional office for the practice of law.

The bill alleges that the plaintiff has duly adopted a zoning by-law whereby in R.l districts, mainly confined to single family residences, only the following signs are per[32]*32mitted: “Real estate signs of not over six square feet in area advertising the sale or rental of only the premises on which they are located, and bulletin boards, and/or signs accessory to uses specified in paragraphs 3, 4, and 6 under R.l districts; but in single sub-divisions large signs may be erected but subject to the provisions of Section 9”; that professional offices, except those of physicians, are not permitted, but professional offices are permitted in C.l districts; that the defendant is a member of the bar, having an office for the practice of law at 24 School Street, Boston, and residing at 282 Massachusetts Avenue in Lexington; that the premises where he resides are in an R.l district; that the defendant has erected on a tree in front of 282 Massachusetts Avenue a sign about ten inches by twenty inches, attached to the tree by an iron bracket, about five feet from his front steps, on which are printed on both sides the following words: “David H. Govenar, Attorney at Law, Notary Public”; that the “plaintiff is informed and believes and therefore alleges that the defendant is practising his profession of attorney at law and maintaining an office therefor in his said residence at 282 Massachusetts Avenue, Lexington, and that the sign in question is for the purpose of soliciting clients to come to his said premises for business or professional purposes.” A copy of the pertinent provisions of the by-law is annexed to the bill.

The defendant in his answer admits the allegations of the bill as to the adoption and terms of the by-law and as to his being a member of the bar with an office in Boston and a residence in Lexington; admits that his residence is in an R.l district; admits that he erected the sign in the location and with the printing described in the bill, but alleges that the dimensions of the sign are somewhat less than those stated in the bill; denies that he is maintaining an office for the practice of law in his residence; admits that clients have come to his home for advice, but alleges that “the actual work of his law office is as set forth in” paragraph 2 of the bill, which contains the allegations that he has a law office in Boston; denies that the sign is for the purpose of soliciting clients to come to his house for business or professional [33]*33purposes, and alleges that it is for the purpose of identifying his residence. It is further pleaded in the answer that even if the allegations of the bill on information and belief are true the plaintiff has no cause of action either in law or in equity, and that the defendant’s residence in an R.l district does not constitute a violation of the zoning by-law.

The trial judge found that “In 1929 the town of Lexington adopted a zoning by-law . . . which, with certain amendments not material to this case, has remained in force until the present time”; that under this by-law, and in accordance with a zoning map annexed to it, certain single family house districts called R.l have been set off; that in one of these R.l districts on Massachusetts Avenue and near the Arlington line the defendant resides in a single family house; that he is a lawyer with an office in Boston; that he has erected and maintained on a tree in front of his house a sign ten inches by twenty inches in size on which are printed the words “David H. Govenar Attorney at Law Notary Public”; that the defendant maintained no real office at his home, but, as is customary among lawyers, saw at his home such clients as desired to consult him there; that the sign was maintained by him for advertising purposes and to solicit the patronage of clients; that there was nothing improper in this form of solicitation; that § 4 of said zoning law, however, restricts residents in the R.l districts to certain designated uses of property therein located. The; judge found and ruled that the maintenance of the sign was and is a violation of the by-law; and that such use as the defendant has made of his dwelling house to see and consult with clients has not been a violation of said zoning law. The judge directed that a final decree be entered ordering the defendant to remove the sign, and enjoining him from erecting and maintaining another of like or similar description. A final decree was entered accordingly from which the defendant appealed.

Upon the record the only questions open for our consideration are whether the final decree was within the scope of the bill and was supported by the facts found. In this connection see Seager v. Dauphinee, 284 Mass. 96, 98; Karas [34]*34v. Karas, 288 Mass. 460, 462; Economy Grocery Stores Corp. v. McMenamy, 290 Mass. 549; Wyness v. Crowley, 292 Mass. 459, 461.

The finding that the defendant maintained no real office in his home is not incompatible with a finding that the sign was maintained for advertising purposes and that the defendant saw at his house such clients as desired to consult him there. A sign might be erected to attract clients to certain premises and clients so attracted might be consulted there, without the existence of an office on the premises. So far as the maintenance of the sign is concerned, it is plain that the premises were being used contrary to the zoning law. Under this law premises in an R.l district could be used only in certain ways and signs could be erected only in connection with such uses and to advertise the sale or rental of the premises. Under this zoning law an intention is manifest to restrict various types of offices and signs placed upon them. A sign of the type erected by the defendant on his premises, although no real office exists thereon, manifestly defeats this intention. It was a use of the premises in a business manner contrary to the uses intended to be permitted in the R.l district. It follows that the maintenance of the sign for advertising purposes was a violation of the zoning law. The order that the sign be removed was within the scope of the allegations and prayers of the bill. The suit was an appropriate method of enforcing the zoning by-law. G. L. (Ter. Ed.) c. 40, as amended by St. 1933, c. 269, § 1 (inserting a new § 30A in G. L. [Ter. Ed.] c. 40). In this connection see Lexington v. Bean, 272 Mass. 547.

The remaining question relates to the validity of the zoning law, which was passed pursuant to the provisions of G. L. c. 40, § 25. It was held by this court in the cases of Inspector of Buildings of Lowell v. Stoklosa, 250 Mass. 52, and Spector v. Building Inspector of Milton, 250 Mass. 63, that the statute is constitutional. But this court will not enforce a plainly invalid exercise of the power conferred thereunder. Whiteside v. Merchants National Bank of Boston, 284 Mass. 165. On the allegations of the bill it cannot [35]*35be held that the division of the town into residential and business areas by the zoning by-law is unreasonably discriminatory. It was said in Inspector of Buildings of Lowell v. Stoklosa, 250 Mass.

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Bluebook (online)
3 N.E.2d 19, 295 Mass. 31, 1936 Mass. LEXIS 1067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-lexington-v-govenar-mass-1936.