301 Mass. 365 | Mass. | 1938
This is a petition for a writ of mandamus, directing certain of the respondents, as they are the board of selectmen of the town of Scituate, to revoke a victualler’s license issued on March 9, 1937, to one Michael P. Zullas, an intervening respondent, for use on premises owned by Zullas in said town, and further directing the respondent selectmen to apply for an injunction to restrain any violation by Zullas of a zoning by-law of the town, and to take such further steps as may be required to enforce the bylaw, in so far as it applies to his premises. The case was heard by an auditor, whose report is made a part of the bill of exceptions, and it then came on to be heard before a single justice on the auditor’s report and also on a stipulation of the parties, the material portion of which relates merely to the required publication of a copy of the zoning by-law before it can take effect. G. L. (Ter. Ed.) c. 40, § 32, as amended by St. 1933, c. 185, § 1. The single justice made certain findings of fact and rulings of law, refused to make others, and ordered the petition dismissed as a matter of law. The petitioner’s exceptions relate to the denial by the single justice of certain requests for findings of fact and
The single justice found that, some time about the year 1902, “Dreamwold” was designed and constructed in Scituate as a residence for Thomas W. Lawson, and was occupied by him and his family solely as a residence until 1922. From 1922 to 1926 it was unoccupied. In 1926, it was purchased by one Dailey and his wife, who “used” it as a restaurant and resided there until 1933, when its use as a restaurant was discontinued. In the “operation” of “Dreamwold” as a restaurant, the Daileys made no structural changes except to enlarge the kitchen by tearing out a part of its wall and enclosing a portion of the adjoining piazza. They also walled up a portion of this piazza and installed a large refrigerator. Dining tables and chairs were set up in what had been the library, billiard room, conservatory and entrance hall. Dailey filed a petition in bankruptcy in February, 1934, and his assets were sold prior to April 13, 1934, by his trustee in bankruptcy. On that date a mortgage on the real estate was foreclosed by sale. From 1933, to January, 1935, “Dreamwold” was unoccupied except by a caretaker, who did not remain there during the night time. There was no change in the design or structure of the building until after May 1, 1936, and there was no repair, alteration, or change in design until after that date which in any way changed “Dream-wold” from a residence to a different type of structure. On March 2, 1936, the building was the same as it had been during its occupancy by Mr. Lawson with no substantial or material change. No victualler's license for the premises was issued from 1933 to 1937.
The auditor found that in September, 1935, the respondent Zullas contracted to buy the buildings and land, consisting of seven acres, and took title on May 15, 1936. In November, 1935, repairs upon the premises were commenced and continued until Christmas. The inside of the building was cleaned, certain partitions in the kitchen and basement were taken down, and a large girder or beam was installed in the kitchen ceiling as a support. More extensive
The zoning by-law in question was adopted at the annual town meeting on March 2, 1936, under the authority of G. L. (Ter. Ed.) c. 40, §§ 25-32, as amended by St. 1933, c. 269, § 1, (see St. 1933, c. 185, § 1, and St. 1935, c. 388, §§ 1, 2,) and no question is raised as to its being in force. It divided the town into areas or zones described as “Á” and “B,” and the use of a building or premises for restaurant purposes was not permitted in zone “A,” in which “Dreamwold” was located. Section 4 of the by-law reads, in part, as follows: “Any building structure or premises in an 'A’ zone which at the time of adoption of this by-law is being used for a purpose not permitted hereunder, may be continued to the same extent in such use or in a use not substantially different therefrom. Any building or structure in an ‘A’ zone, which at the time of adoption of this by-law does not conform to the kinds of buildings or structure permitted hereunder, may be maintained, may be structurally altered, or enlarged to the extent of the entire contiguous premises owned on the date of passage . . . [of] this by-law by the then owner of said building or structure.”
We are concerned only with the first quoted sentence of this section. The by-law contains no provision relating to the alteration of a building or structure except such as, at the time of the adoption of the by-law, did not conform to the kinds of buildings or structures permitted by it. Com
For the purposes of this decision it may be said that, as to the form of remedy, it is assumed that the petition is properly before us. It has been held that the jurisdiction in equity conferred upon the Superior Court by G. L. c. 40, § 28 (see § 30A appearing in St. 1933, c. 269, § 1,) does not purport to confer rights upon individuals suffering only a private injury to invoke equitable relief. O’Brien v. Turner, 255 Mass. 84, 86. In instances similar to the case at bar, mandamus has been the remedy invoked. Cochran v. Roemer, 287 Mass. 500. We deal with the petition upon its merits.
Although the single justice found that Dailey discontinued the use of “Dreamwold” as a restaurant some time in 1933, he refused to find that the use of the building as a restaurant was abandoned. He refused to rule that there had been an abandonment. We think there was no error. Abandonment is primarily a question of fact, Gorton-Pew Fisheries Co. v. Tolman, 210 Mass. 402, 413; although where there is no dispute as to the facts, and all the evidence is before the court, a question of law is presented. Hartt v. Rueter, 223 Mass. 207, 212. A mere nonuser would not conclusively show an abandonment. O’Shea v. Mark E. Kelley Co. 273 Mass. 164, 170. The finding of the single justice cannot be disturbed, and we think there was no error in his ruling as to abandonment.
The remaining question is whether upon this record any violation is shown of so much of § 4 of the by-law as provides, in effect, that the use of “Dreamwold” as a restaurant may be continued to the same extent as it was so used at the time of the adoption of the by-law. We think
The question presented is whether the writ ought to issue as matter of law. Andrews v. Registrars of Voters of Easton, 246 Mass. 572, 576. Shawmut Mills v. Assessors of Fall River, 271 Mass. 358, 360. The general finding against the petitioner must stand if it can be supported on any rational view of the evidence. Moss v. Old Colony Trust Co. 246 Mass. 139, 143. Bianco v. Ashley, 284 Mass. 20, 26. We are of the opinion that the petitioner has not, as matter of law, made out a case to require relief.
Exceptions overruled.