315 Mass. 291 | Mass. | 1943
This is an appeal from an order dismissing a petition for a writ of mandamus, brought in the Superior Court against the building commissioner of Melrose, to compel him to issue a building permit for the construction of a building designed for use as a garage and a conservatory. The case was submitted to the trial judge upon a statement of agreed facts.
The premises of the petitioner are located in a “Residence ‘A’ District” as defined by the zoning ordinance of the city. This ordinance provides in section 5, in so far as now material, that, within any Residence “A” or “A-l” district, except as provided in section 7, no building or premises shall be used and no building or structure shall be erected except for dwelling houses and other specifically enumerated purposes, among which are those contained in section 5 (g), which reads as follows: “Accessory purposes such as are proper and usual with residences for one family and are not injurious to a neighborhood as a place for such residence.” Section 7, which is captioned “Permissive Uses in Residence ‘A’, ‘A-l’ and ‘B’ Districts,” authorizes the building commissioner with the written consent of the planning board to give permission in accordance with the procedure provided in section 4 for the construction and use of buildings and land for certain purposes including, as specifically set forth in section 7 (b), “Stock-farm, truck garden, nursery or greenhouse.” Section 4 provides for the filing of an application with the building commissioner, where permission of the commissioner and the planning board is required for the construction and use of a building for a purpose permitted by the ordinance, and, after notice and a public hearing by the commissioner and the board, for the granting or refusal of the application. The building ordinance, however, by section 7, authorizes the commissioner
The petitioner contemplates the erection in the rear of her residence of a garage measuring fifteen by twenty feet joined by an enclosed passageway to a conservatory which is to measure eleven by twenty-four feet. She intends to cultivate exotic plants and flowers for her personal use in her own home. The plans for the proposed structure were prepared by an architect. The application for the building permit, which was filed in accordance with the building ordinance, was properly made on a form supplied by the building commissioner, and the plans, which accompanied the application, were in form satisfactory to the building commissioner. The judge ruled that the respondent was “given discretionary power under section 7 of the zoning ordinances” to grant or refuse an application for a building permit for the construction of the building contemplated by the petitioner, found that there was no abuse of discretion in refusing the petitioner’s application, and ordered the petition dismissed.
An examination of the statement of agreed facts indicates that the present controversy seems to center entirely about the erection of the conservatory rather than of the garage. It may have been thought that the difficulties that once lay in the path of one seeking to erect and use a private garage which is an appurtenance to a dwelling and in which not more than three automobiles are to be kept have been cleared away by G. L. (Ter. Ed.) c. 148, § 14, as amended by St. 1938, c. 103. We consider the case as presented by the parties.
The petitioner filed proper application and plans with the building commissioner, which, in the absence of anything to the contrary appearing, we assume called for the erection of a structure in conformity with the provisions of the building ordinance. She contends that she was entitled as matter of law to the issuance of a permit. There would, doubtless, be much strength in the petitioner’s contention if the building ordinance alone were involved, While the
The authority of the building commissioner to issue a permit was expressly limited to cases where the application and plans showed compliance not only with the building ordinance but with the other ordinances of the city among which, of course, is the zoning ordinance including section 7 of that ordinance, if said section is valid. The petitioner contends that a conservatory is a use authorized by section 5 (g) of the zoning ordinance as it is an accessory use which is “proper and usual with residences for one family,” and that she was entitled to erect and use such a building upon the granting of a building permit which, she urges, it was the duty of the building commissioner alone to issue. The respondent points out that a conservatory is a greenhouse, which is one of the permissive uses mentioned in section 7 (b) of the zoning ordinance, and contends that a permit for its construction cannot be issued until a hearing has been had and the written consent of the planning board secured in accordance with section 4 of the zoning ordinance.
The permissive uses, so called, which may be made of land and which require the consent of the planning board are
The agreed facts together with the pertinent ordinances show that the contemplated structure comes within section 5 (g) of the zoning ordinance, that the petitioner was, as matter of law, entitled to a building permit and that the building commissioner had no discretionary power to withhold it. Burke v. Holyoke Board of Health, 219 Mass. 219. Inspector of Buildings of Watertown v. Nelson, 257 Mass. 346. Lambert v. Board of Appeals of Lowell, 295 Mass. 224. Elmer v. Commissioner of Insurance, 304 Mass. 194. Turner v. Board of Appeals of Milton, 305 Mass. 189. Pittsfield v. Oleksak, 313 Mass. 553.
Writ to issue.