TOWN OF CHELMSFORD & another vs. C. EMMETT BYRNE & another.

TOWN OF CHELMSFORD & another vs. C. EMMETT BYRNE & another.

6 Mass. App. Ct. 848

February 22, 1978

This case involves the defendants' access to their property, located in the city of Lowell and zoned as an industrial park area, by means of a dirt road which lies in an area of the town of Chelmsford zoned for residential use. The dirt road, which has not been accepted by the town as a public way, is the only means of access to the defendants' land. The defendants contend that it was error for the Superior Court judge to enjoin them from using a portion of the dirt road in Chelmsford for access to their land in Lowell "unless the use of said land conforms to the uses allowed in an RB Single Residence District under the Town of Chelmsford Zoning By-Laws." An owner of land in an industrial district may not use lots of land in an adjacent residential zone as access roadways for its industrial use. Harrison v. Building Inspector of Braintree, 350 Mass. 559 , 560-561 (1966). This principle also controls when districts zoned for different uses lie in different municipalities. Brookline v. Co-Ray Realty Co. 326 Mass. 206 , 211-213 (1950). The question which remains is whether the effect of the Chelmsford by-law is to bar any access to the defendants' Lowell land for lawful use. See Lapenas v. Zoning Bd. of Appeals of Brockton, 352 Mass. 530 , 533 (1967). If there is a lawful use for the Lowell land under that city's zoning ordinance which is consistent with the Chelmsford by-law, then the injunction would not be arbitrary or invalid. There is nothing in the record, however, to enable us to determine whether there is a lawful use of the Lowell property consistent with the Chelmsford by-law. Therefore, the judgment is reversed, and the case is remanded to the Superior Court for further proceedings to establish whether there is a lawful use of the Lowell

Page 849

land consistent with the Chelmsford by-law, and for the entry of a new judgment based upon that determination.

So ordered.