Summary
In Kimball v. Blanchard, 1906, 101 Me. 383, 64 A. 645, 646, the trustee of a small testamentary trust had discretion to invade principal for the "suitable support and maintenance" of the life beneficiary.
Summary of this case from Isaacson v. ClausonOpinion
No. 3109
Decided June 22, 1939
A zoning ordinance does not comply with the statute of zoning (P. L., c. 42, s. 49) unless the classification is by districts and not by individual pieces of property.
An ordinance of Nashua which placed all suburban property in class A, a "one-family dwelling" residence district, but also established throughout such district five separate business "districts" each consisting of one separate piece of property created a discriminatory and illegal classification.
A zoning ordinance which permits the sale of farm produce on the premises includes not merely agricultural products in their natural state but products manufactured therefrom, such as butter, cheese, c. including ice-cream.
BILL IN EQUITY and PETITION, brought by a landowner under the provisions of P. L, c. 42, s. 61, to review a decision of the board of adjustment, acting under the zoning ordinance of the city of Nashua. The questions of law raised by the "agreed statement of facts and contentions of the parties" were transferred by Johnston, J., without a ruling.
The plaintiff is the owner of a large farm situated on the west side of the Daniel Webster highway in Nashua about four miles south of the city hall. The zoning ordinance places this farm in a class A residence district, and the premises adjoin a plot of land, zoned as a local business district, on which the defendant Eglantine E. Blanchard conducts a roadside restaurant.
The defendants comprise the board of adjustment, the administrative officer, the City Solicitor, and Eglantine E. Blanchard. All have been enjoined by the Superior Court "from bringing any civil or criminal proceedings" against the plaintiff pending the determination of this controversy.
Among the permitted uses in a class A residence district is the right to maintain a farm, and, as an accessory use, the owner of a farm is permitted to sell "farm produce on the premises." The plaintiff claims the right to sell "ice cream made on the farm from the products of the farm, milkshakes, cheese and buttermilk." It is the decision of the board of adjustment that he is authorized by the terms of the ordinance "to sell only products raised on his farm, in their natural state, or dairy products of the farm such as milk or cream" and that he is not entitled to sell "manufactured products such as ice cream, whether manufactured on the premises or not." An order enforcing this decision was made.
The entire suburban area of Nashua with the exception of five small individual pieces of property is placed by the zoning ordinance in the class A residence district. The plaintiff contends that the system of classification and districting as applied to this area is arbitrary and unreasonable. Further facts are stated in the opinion.
Raymond C. Leahy and Robert B. Hamblett (Mr. Hamblett orally), for the plaintiff.
Alvin A. Lucier (by brief and orally), for Eglantine E. Blanchard.
Edward J. Lampron, City Solicitor (by brief and orally), for the other defendants.
The ordinance under review purports to establish comprehensive scheme of zoning, covering all land within the territorial limits of Nashua. No fault with the zoning of the land bordering the Daniel Webster Highway could be found if the ordinance merely extended the urban type of zoning to a suburban area and placed reasonable restrictions on the use of roadside stands, gasoline filling stations, and similar enterprises. Wertheimer, "Constitutionality of Rural Zoning," 26 Cal. Law Rev. 175, 183, 184.
No such system has been inaugurated, however. Five separate parcels of land on highways leading to Massachusetts (one parcel adjacent to the plaintiff's farm), because of uses antedating the ordinance, have been converted into five separate business "districts" despite the fact that "zoning is regulation by districts" in the real sense of the term "and not by individual pieces of property" (37 Harv. Law Rev. 834, 851), and all the remaining land surrounding the thickly settled portion of the city has been placed in the class A, "one-family dwelling" residence district.
This suburban area extends to the town of Merrimack on the north, to the Merrimack River on the east, to the town of Hollis on the west, and to the Massachusetts state line on the south. It comprises wasteland, woodland, and very sparsely settled regions, and the only reason suggested by defendants' counsel for its specific classification is that the zoning authorities have deemed it expedient to place all such territory in the most restricted division until future conditions shall determine the appropriate districting of the tract.
It is true of course that accepted methods of zoning are adapted not only to present conditions but to the requirements of probable and desirable growth. In the case of Stone v. Cray, 89 N.H. 483, 485, it is said: "The general welfare may be tested by considerations of stabilization, orderliness and development in the forms, branches and grouping of the elements of residence, business and industry in community life." In the present instance, however, no attempt has been made to establish, so far as rural land-use regulation is concerned, even "a reasonably fair, rough-and-ready equalization" of these elements (37 Harv. Law Rev. 834, 853). Plaintiff's counsel aptly describes the mode by which this property has been zoned as "purely a wastebasket process, absolutely arbitrary and unreasonable," and having no substantial tendency to promote any of the purposes which proper zoning regulations are designed to secure.
This contention is sustained. See Sundeen v. Rogers, 83 N.H. 253, 258; Sullivan v. Company, 89 N.H. 112, 114; Brady v. Keene, ante, 99; P. L., c. 42, s. 48. See, also, Dowsey v. Kensington, 257 N.Y. 221.
But even if the restrictions on the use of the plaintiff's land had been validly imposed, we believe that the plaintiff would be entitled to exercise the right which he claims. The owners of farms are permitted, as an accessory use, to sell "farm produce on the premises." This is the only provision in the ordinance relating to the sale of farm products. The fact that ice cream is a "manufactured article" (Syracuse c. Co. v. Cortland, 138 N.Y. Supp. 338, 339) is not decisive of the controversy. Cheese and butter, though produced at factories and creameries, have been held to be "dairy farm products" within the meaning of a motor-vehicle tax statute containing provision exempting from its operation motor vehicles used exclusively in transporting dairy or other farm products between the point of production and the primary market. State v. Commission, 207 Wis. 664.
The noun "produce" has "no definite, exact and technical meaning. It may be used in a larger or more restricted sense." District v. Oyster (D.C.), 4 Mackey, 285, 286. "Agricultural product or products" is one of its definitions, and "agriculture" in its broad use includes dairying. Webster's New International Dictionary, 2d ed. In construing the phrase "sale of farm produce on the premises" attention should be paid to the comprehensiveness of its terms and to the extent of its application.
With these considerations in mind, we conclude that it could not have been the purpose of the provision in question to prohibit a farmer, wherever his farm might be located, from selling on his own land a commodity composed primarily of agricultural raw material there produced. The interpretation for which the defendants contend would place under the ban such common farm-"manufactured" products as cider, maple syrup, butter, and cheese. If there had been any intention to restrict the farmer's sales to farm produce in its natural state, the qualifying phrase could easily have been employed.
The order of the board of adjustment is set aside.
Decree for plaintiff.
All concurred.