Crawford v. Building Inspector of Barnstable

• Decision Date: 06 June 1969
• Citation: 356 Mass. 174,248 N.E.2d 488
• Parties: Allan F. CRAWFORD et al. 1 v. BUILDING INSPECTOR OF BARNSTABLE et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 488

248 N.E.2d 488

356 Mass. 174

Allan F. CRAWFORD et al. ¹ v. BUILDING INSPECTOR OF BARNSTABLE et al. ²

Supreme Judicial Court of Massachusetts, Barnstable.

Argued March 7, 1969.

Decided June 6, 1969.

Daniel J. Fern, Hyannis, for petitioners.

Bernard A. Dwork, Boston (Enid M. Starr, Boston, with him) for intervener, Harbor View Realty, Inc.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER, and KIRK, JJ.

KIRK, Justice.

The petitioners for a writ of mandamus seek to compel the building inspector of Barnstable to revoke a building permit granted to the intervener Harbor View Realty Inc. (Harbor View), and to enforce the zoning by-law of the town. After our earlier decision overruling a demurrer of Harbor View and ordering the petition to stand for hearing on the merits (Crawford v. Building Inspector of Barnstable, 352 Mass. 504, 226 N.E.2d 240) there has been a hearing, and an order for judgment dismissing the petition. The petitioners appeal. We have a report of material facts, a narrative condensation of testimony and the exhibits. The judge took a view. Since the applicable principles of review for mandamus are the same as in equity we accept as final the findings of the judge unless plainly wrong, make such other findings as are necessary and justified by the evidence and decide the case on our own judgment. Hanrihan v. Hanrihan, 342 Mass. 559, 564, 174 N.E.2d 449; Chartrand v. Registrar of Motor Vehicles, 347 Mass. 470, 473, 198 N.E.2d 425; IVERSON V. BUILDING INSPECTOR OF DEDHAM, MASS. , 241 N.E.2D 817^A.

Harbor View is the owner of premises in the village of Cotuit in the town of Barnstable. The premises are within a 'Residence D' district under the zoning by-law. All of Cotuit is zoned for residence purposes. Harbor View conducts on the premises for commercial purposes a small hotel or 'club,' as a lawful, nonconforming use under the by-law. 352 Mass. 504, 507, 226 N.E.2d 240. Since May, 1965, pursuant to a permit 'to repair and remodel * * * no area change' issued by the building inspector, certain changes later to be described in the Harbor View building have been accomplished.

During the same period, and without any permit from the building inspector, other changes were made on the premises. One of these was the leveling and blacktopping of an area in front of the building for use as a parking lot. ³ The other was the construction of a timber pier and float which 'extends into the bay some 280 feet' from the beach or water side of the premises.

We consider the challenges of the petitioners to the judge's decision on (1) the building changes, (2) the parking lot and (3) the pier.

1. The building changes at issue concern a porch and stair-landing at the rear or water side of the building. An outside stairway, consisting of five or six steps, supported by the fieldstone foundation of the building, led up to an outdoor porch or landing, eight or ten feet long by two feet wide, also supported by the foundation of the building. Part of the porch had a roof over it. By the change, the steps were eliminated. The landing-porch area above the foundation was so enclosed that it became part of the room to which it always had been contiguous on the ground floor of the building. The judge found '(a) that the cubic area of enclosed space on the first, or 'ground,' floor of the building has been increased by the recent enclosures by no more than three to four per cent, (b) that the cubic area of enclosed space in the entire building, above ground, has been increased by said enclosures by no more than one to two per cent, (c) that the enclosure of these areas followed, and resulted from, the advice of an expert construction engineer that persisting and increasing dryrot which was occuring in the wood of the formerly open porch and stair-landing could be prevented only by enclosing these areas, (d) that the said new enclosures have enhanced the internal and external appearance of the building and rendered it more attractive to the eye than it was previously, (e) that the square footage of area and foundation covered by the entire building including porches is precisely the same as it was prior to the aforesaid enclosure work.'

The petitioners argue that these changes (the enclosure of the porch stair-landing and the elimination of the steps) are, on the one hand, 'reconstruction, extension or structural change' not exempt under G.L. c. 40A, § 5, and in violation of the zoning by-law in the absence of a special permit; or, on the other hand, that they are 'substantial alterations' under part D, 3 of the zoning by-law and beyond the 'minor alterations' permissible in the discretion of the building inspector. ⁴

It is our view that the facts found by the judge and supported by the evidence bring the building changes within 'the minimum of tolerance that must be accorded to nonconforming uses' under G.L. c. 40A, § 5. Inspector of Bldgs. of Burlington v. Murphy, 320 Mass. 207, 209, 68 N.E.2d 918. This is not the case of an 'alteration of an existing building for substantially greater use (which) is expressly put outside the exemption by the statutory words: 'but it shall apply * * * to any alteration * * * when the same would amount to reconstruction, extension or structural change, and to any alteration * * * to provide * * * for its use for the same purpose to a substantially greater extent' * * * (cases cited).' Chilson v. Zoning Bd. of Appeal of Attleboro, 344 Mass. 406, 411--412, 182 N.E.2d 535, 539. It is the case of repairs replacing rotted exposed parts of a building, and alterations to preserve the replaced parts from deterioration by weather and to improve the appearance of the building rather than to enlarge the use of the building. Whatever enlargement followed the alteration (and there was none whatever so far as overall floor space was concerned) was negligible rather than substantial and was incidental rather than purposeful. Parrish v. Board of Appeal of Sharon, 351 Mass. 561, 567, 223 N.E.2d 81, relied upon by the petitioners, has no application to the case at bar. There was no violation of zoning provisions in the building changes attacked by the petitioners. The order to dismiss the petition in so far as it sought to undo acts done under the building permit was right.

2. The parking area is located between the building and public road side of the premises. The physical facts are best described by the findings of the judge that '(a) the surface of the area * * * was formerly dirt, grass, shrubbery and trees, (b) the majority of this area has now been blacktopped, although some grass and shrubs remain, (c) the new surface was applied in professional fashion and is attractive in appearance, (d) motor vehicles of patrons formerly parked upon a dirt path and indiscriminately upon all parts of the grass surface, (e) there is no credible evidence that any larger number of vehicles is presently accommodated upon the new blacktop surface during the busy summar season than were formerly parked upon the dirt and grass, and (f) there has been a substantial decrease in dust caused by motor vehicles since the blacktop was installed.'

The building inspector did not issue a premit to level and blacktop the surface in front of the building. He testified that as inspector he had never issued a permit for the blacktopping of any area and knew of no authority empowering him to prohibit or permit it. The petitioners cite no authority to that effect and we are aware of none. The situation is comparable to that dealt with in Williams v. Inspector of Bldgs. of Belmont, 341 Mass. 188, 168 N.E.2d 257 (tennis court), and is controlled by the discussion and conclusion of that opinion. There was no error in ordering the dismissal of the petition as it related to the parking area.

3. The pier, on the beach or water side of the premises, presents a different situation. On the law and the evidence we reach a different conclusion from the...