Building Inspector of Dennis v. Harney

• Decision Date: 08 October 1974
• Citation: 317 N.E.2d 81,2 Mass.App.Ct. 584
• Parties: BUILDING INSPECTOR OF DENNIS et al. v. Fred B. HARNEY, Jr., et al.
• Court: Appeals Court of Massachusetts

Page 81

317 N.E.2d 81

2 Mass.App.Ct. 584

BUILDING INSPECTOR OF DENNIS et al. v. Fred B. HARNEY, Jr., et al.

Appeals Court of Massachusetts, Barnstable.

Argued April 19, 1974.

Decided Oct. 8, 1974.

Stephen C. Jones, Hyannis, for defendants.

William D. Mone, Doyle & Mone, Brockton, for intervener Richard D. Bush (Robert E. O'Neil, Town Counsel, Hyannis, for the Building Inspector of Dennis, with him).

Before ROSE, GOODMAN and GRANT, JJ.

ROSE, Justice.

This is an appeal from a decree entered upon a bill in equity which was brought by the town of Dennis ¹ in response to an alleged violation of its zoning by-law. The case is before us on a report of material facts and designated portions of the evidence.

The defendants, Fred B. Harney, Jr., and Shirley J. Harney, own a parcel of land located between Route 134 and Main Street in Dennis. The bulk of their property lies within an 'unrestricted' zoning district. ² However, the portion of their property which borders on Main Street was, at the time of the hearing, zoned 'residential' to a depth of 150 feet from the street. The town's zoning by-law provided that '(i)n a residential district no building or premises shall be used for any purpose' except certain enumerated uses with which we are not here concerned. Also allowed was '(a)ccessory use on the same lot with and customarily incident to any . . . permitted uses and not detrimental to a residential neighborhood . . ..'

The defendants operate a business which is located on Route 134 within the unrestricted portion of their property. The subject of the present dispute is a roadway constructed by the defendants which runs through both the residential and the unrestricted areas of their land from Main Street to Route 134. A judge of the Superior Court found that the road 'has been used as an accessory roadway to (the defendants') place of business ever since its construction . . . (and) constitutes an additional means of access to (their) place of business.' Ruling that such a use of the residentially zoned portion of the defendants' land was illegal under the town's zoning by-law, he enjoined further use or construction of an access road inside the residential strip and ordered the defendants to erect a barricade adequate to prevent public use of that portion of the road which fell within the strip.

The use of the portion of the defendants' land lying within the residential zone as an access road to a commercial enterprise lying within the unrestricted zone clearly does not fall within any of the uses permitted in a residential zone by the town's zoning by-law. See Harrison v. Building Inspector of Braintree, 350 Mass. 559, 561, 215 N.E.2d 773 (1966); Richardson v. Zoning Bd. of Appeals of Framingham, 351 Mass. 375, 381, 221 N.E.2d 396 (1966). The defendants have sought to distinguish the Harrison case on the ground that the road at issue is used by the public to gain access to other residential and commercial property in the town. It is doubtful whether the designated portion of the evidence affords a basis for modifying the judge's finding on this issue. Even if it did, however, the defendants would not prevail, since under the terms of the zoning by-law a qualifying use must itself be residential in nature or must be accessory to a permitted use on the same lot. Employment of the defendants' land as a public way qualifies under...