320 Mass. 207 | Mass. | 1946
On November 13, 1945, the Superior Court entered a final decree permanently enjoining the defendant against using a certain building declared to be about thirty-six feet wide and sixty feet long erected by him on his land in the spring of 1945, which the decree declared to be attached to a larger building which prior to the adoption of a zoning by-law by the town of Burlington in 1943 and ever since has been used for slaughtering swine. The defendant appealed.
The validity in general of that zoning by-law was established in Burlington v. Dunn, 318 Mass. 216. The defendant’s land, comprising about twenty-five acres, is located in a “Residence B District” in which, the zoning by-law provides, no building or structure can lawfully be erected for any commercial purpose except farming, which as defined excludes the keeping of more than three swine. The word “structure” is defined as “anything constructed or erected, the use of which demands a permanent location in the soil, or attached to something having a permanent location in the soil.” Under the heading of “non-conforming uses,” it is provided that “no building or premises devoted to a non-conforming use or uses, in whole or in part shall be structurally changed, enlarged or extended” unless the uses become conforming uses. It is further provided that “a non-conforming building or structure shall not be altered except as ordered by the building inspector to make it safe.”
The judge made no express finding of facts, but the evidence is reported. From the evidence it appears that for some years before the adoption of the zoning by-law the defendant kept swine on his land and that he used a large building thereon for slaughtering large numbers of swine
The main question is whether the defendant is protected by the statute relating to nonconforming uses. In Cochran v. Roemer, 287 Mass. 500, the existence at the passage of a zoning law of a small coal and coke business was held to justify the later erection of a large coal elevator for the purpose of carrying on a much larger business. But that case was decided under the zoning statutes applicable to the city of Boston, which have always been more liberal toward nonconforming uses than the general statutes applicable elsewhere. St. 1924, c. 488, § 9. St. 1932, .c. 143, § 3. St. 1941, c. 373, § 8, which took effect by acceptance by the city council and approval by the mayor in May, 1943, of St. 1938, c. 479. The present case depends upon statutes that have a wholly different history. St. 1920, c. 601, § 7. G. L. (1921) c. 40, § 29. St. 1925, c. 116, § 3. St. 1933, c. 269, § 1, by which the number of the section of G. L. (Ter. Ed.) c. 40 that relates to nonconforming uses is made § 26.
Under the section last cited, which prescribes the minimum of tolerance that must be accorded to nonconforming uses (LaMontagne v. Kenney, 288 Mass. 363; Paul v. Selectmen of Scituate, 301 Mass. 365; Smith v. City Council of Marlborough, 302 Mass. 571, 573), existing buildings and structures, and the existing use of any building or structure or of land, are protected against zoning regulations. [But zoning regulations may apply to any “change of use,” and “to any alteration of a building or structure when the same
The question whether a permit for the change was granted, or was lawfully revoked, is immaterial. Since the change was a violation of a valid zoning by-law, no permit could legalize it. Cochran v. Roemer, 287 Mass. 500, 510. Hull v. Belmont, 309 Mass. 274, 281. Foster v. Mayor of Beverly, 315 Mass. 567. Lincoln v. Giles, 317 Mass. 185, 187. G. L. (Ter. Ed.) c. 40, § 28, (as appearing in St: 1941, c. 176; § 29, as appearing in St. 1933, c. 269, § 1. Furthermore, the building erected did not conform to the permit, but was much smaller than the permit called for, and the permit was improvidently issued without the plans required by the by-law.
A firmed with costs.