298 Mass. 5 | Mass. | 1937
This is a petition for a writ of mandamus to compel the respondent, as building inspector of the city of Brockton, to enforce the zoning ordinance of that city. The single justice, having found the material facts, denied the petition as matter of discretion and then reported the case for determination by the full court.
The question presented by this form of report is whether as matter of law the petitioner is entitled to the writ despite the discretionary action of the single justice to the contrary. Boucher v. Salem Rebuilding Commission, 225 Mass. 18. Donnelly v. Trustees of Boston City Hospital, 290 Mass. 347, 350. Sometimes cases of this character come before this court as raising a bald question of law where no element of discretion is involved. Ransom v. Mayor of Boston, 193 Mass. 537. Shawmut Mills v. Assessors of Fall River, 271 Mass. 358. Cochran v. Roemer, 287 Mass. 500, 502. Clancy v. Wallace, 288 Mass. 557, 559. The case at bar does not belong to that class. When the single justice has exercised his discretion against the issuance of the writ,
The substance of the petition relates to the proposed erection by one Reilly on his land of a garage for four automobiles within the area established by the zoning ordinance as the residential district. It is contended that there has been failure to comply with the requirements of the zoning ordinance and the statutes. The record is confused and unsatisfactory. It is not necessary to set out the findings at length. The zoning ordinance prohibited the erection within the residential district of a garage other than a private garage or for the storage of more than one commercial vehicle. It has been found that Reilly intends to store in the proposed garage one hearse and three noncommercial vehicles. There is force in the contention of the respondent stated in the record that he made no investigation with reference to the proposed uses of the garage because he relied upon the statement in the application of the owner that the permit to build was for a private garage, and that uses to which the garage might be put would become of consequence only after its construction. Without approving that contention, it is plain from the record as an entirety that the petitioner has failed to show an absolute right as matter of law to the issuance of the writ such as to override the discretion of the single justice. The case at bar differs
Order dismissing petition affirmed.