349 Mass. 292 | Mass. | 1965
This is an appeal by the plaintiff from a final decree of the Superior Court upholding the decision of the defendant board of appeals which sustained the building inspector’s refusal to grant a building permit. We have previously considered an earlier application of the plaintiff for a permit. (See footnote 4.) We now consider a further chapter in the plaintiff’s effort to establish in the town of Wayland a sheltering home for cats.
According to the statement of agreed facts the plaintiff, a charitable corporation, purchased in November, 1960, property at 302A Concord Road, Wayland (designated lot No. 12), containing 230,404 square feet. This property is in a single residence zone and is part of a subdivision under
The judge found that a permit to build a “sheltering cat home” was issued by the building inspector on November 16, 1960; that the permit was revoked on January 4, 1961; and that thereafter the plaintiff was enjoined from constructing the building.
The issue, as stated by the judge of the Superior Court, is whether the plaintiff is entitled to a building permit as
The “one dwelling” limitation is authorized by G. L. c. 41, §§ 81Q and 81B. The latter section provides that a planning board “may, where the ways are not otherwise deemed adequate, approve a plan on conditions limiting . . . the number of buildings that may be erected on particular lots . . ..” The building inspector may not issue a building permit “until first satisfied . . . that any condition endorsed ... [on a plan] limiting the right to erect or maintain buildings on such lot have [sic] been satisfied . . . and in the event that the planning board has by rule or regulation required that not more than one building for dwelling purposes be erected ... on any lot without its consent, until satisfied that such consent has been obtained.” G. L. c. 41, § 81Y. The parties have agreed that the planning board did not release the restriction limiting construction on lot No. 12 to one dwelling.
We do not interpret the condition as establishing a right to erect on lot No. 12, in addition to the existing dwelling, other structures provided they are not “dwellings.” Surely one could not erect on lot No. 12 a dwelling and, in addition, a hospital. The statutory basis for the imposition of a condition is the inadequacy of the ways. See G. L. c. 41, §§ 81Q, 81R. A second dwelling would undoubtedly require much less use of ways than would result from the erection of an institutional structure. We think that
Decree affirmed.
Two other conditions were: (1) that the town of Wayland shall have no responsibility with respect to maintenance of the private way; and (2) the private way shall not be eligible for acceptance by the town as a town way. The way as shown on the approved plan is not a through way.
Such a special permit was sought by the plaintiff and denied. The plaintiff does not appeal from this denial.
In view of the basis of the disposition of this appeal we do not consider whether there was unreasonable delay by the plaintiff in taking it.
See Building Inspector of Wayland v. Ellen M. Gifford Sheltering Home Corp. 344 Mass. 281.