David v. Board of Appeals of Reading

• Decision Date: 06 March 1956
• Citation: 132 N.E.2d 386,333 Mass. 657
• Parties: A. Lloyd DAVID et al. v. BOARD OF APPEALS OF READING et al. *
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 386

132 N.E.2d 386

333 Mass. 657

A. Lloyd DAVID et al. v. BOARD OF APPEALS OF READING et al. ^*

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 9, 1955.

Decided March 6, 1956.

John N. Kelly, Boston, for plaintiffs.

Harry M. Lack, Boston, for Cole, intervening defendant (Samuel H. Davis, Town Counsel, Boston, for defendant Board of Appeals of Reading with him).

Before QUA, C. J., and RONAN, WILKINS, WILLIAMS and WHITTEMORE, JJ.

RONAN, Justice.

This is an appeal to the Superior Court in the form of a suit in equity brought under G.L. (Ter.Ed.) c. 40, § 30, as appearing in St.1933, c. 269, § 1, as amended, against the board of appeals of the town of Reading seeking to annul a permit granted to one Eva Cole on March 30, 1954, purporting to authorize her to demolish all the buildings located upon a parcel of land owned and occupied by her for a nonconforming use and to erect a new building for the further maintenance of the same nonconforming use. Cole has been allowed to become a party defendant to the present proceedings and has appealed from a decree annulling the decision of the board of appeals.

The town of Reading on March 9, 1942, duly adopted a zoning by-law dividing the town into different districts or zones. The parcel of land now in question has since been located in a Residence A 1 district, in which 'the erection or use of any principal building except as a single family detached house is specifically prohibited.' The premises in question before the since the adoption of the by-law have been occupied by a wooden structure measuring approximately 12 by 12 feet which has been used as a variety store and by another structure about eight by eight feet used as a gasoline station. There has also been located upon this lot an open automobile grease pit connected with one of the buildings. The decision of the board of appeals purported to grant Cole a permit to demolish these structures and to erect in their place a new building 76 feet long and 32 wide, one end of this new structure for the distance of 32 feet to be used for a grocery store and the remainder of the building for the sale of gasoline, lubricants, automotive equipment, and accessories, but 'no body or motor repair work.'

The zoning statute, G.L. (Ter.Ed.) c. 40, § 26, ¹ as appearing in St.1933, c. 269, § 1, as amended, governing nonconforming uses provides that zoning by-laws shall not apply to nonconforming uses existing at the time of the adoption of the by-law but that section provides that zoning by-laws 'shall apply to any change of use thereof and to any alteration of a building or structure when the same would amount to reconstruction, extension or structural change, and to any alteration of a building or structure to provide for its use for a purpose or in a manner substantially different from the use to which it was put before alteration, or for its use for the same purpose to a substantially greater extent. Such an ordinance or by-law may regulate non-use of non-conforming buildings and structures so as not to unduly prolong the life of non-conforming uses.'

The legislative history of section 26 up to the time this suit arose is short and decisive. This section as originally drafted and submitted to this court for an advisory opinion read as follows: 'This act shall not apply to existing structures nor to the existing use of any building, but it shall apply to any alteration of a building to provide for its use for a purpose, or in a manner, substantially different from the use to which it was put before the alteration.' There was no common law origin of this section or the other sections comprising the same chapter. The court gave an advisory opinion that the section was a recognition of the rights 'already acquired by existing use or construction of buildings [which] in general ought not to be interfered with. See Commonwealth v. Alger, 7 Cush. 53, 103, 104.' In re Opinion of the Justices, 234 Mass. 597, 606, 127 N.E. 525, 529. When enacted into law the section appeared in a form similar to that which had been submitted to the court, St.1920, c. 601, § 7. It became G.L. c. 40, § 29, and then G.L. (Ter.Ed.) c. 40, § 29, and remained so until it was amended by St.1933, c. 269, § 1, and put in the form in which it appeared as already set forth.

The words of section 26 as they stood at the time of this suit were mandatory to the effect that the nonconforming premises should no longer be exempt from the zoning by-laws upon specified changes in the use of the land or buildings. It would seem that such a change would be wrought, by reason of carrying out the permit, if the lot which was vacant except for two buildings together occupying a few feet over 200 square feet is to be the site of a new building covering over 2400 square feet. The permit contemplated not the alteration of any building but the demolishing of all existing buildings and the construction of a new one.

Cole, however, contends that the board of appeals was authorized to issue the permit under section 18 of the zoning by-law. This section reads as follows: Section 18, '1. Any building, part of a building or premises which at the time this by-law takes effect, is being put to a non-conforming use may be; * * * b. Altered or extended for that use only upon a permit by the Board of Appeal, or as ordered by the Building Inspector to make such building of premises safe.'

A by-law cannot conflict with the statute. Newton v. Belger, 143 Mass. 598, 10 N.E. 464; Commonwealth v. Hayden, 211 Mass. 296, 97 N.E. 783; Goldstein v Conner, 212 Mass. 57, 98 N.E. 701; Cawley v. Northern Waste Co., 239 Mass. 540, 132 N.E. 365; Commonwealth v. Badger, 243 Mass. 137, 137 N.E. 261; Commonwealth v. Atlas, 244 Mass. 78, 82, 138 N.E. 243; Town of North Reading v. Drinkwater, 309 Mass. 200, 34 N.E.2d 631; Commonwealth v. Wolbarst, 319 Mass. 291, 65 N.E.2d 552; 122 Main Street Corp. v. Brockton, 323 Mass. 646, 84 N.E.2d 13, 8 A.L.R.2d 955; Commonwealth v. Rivkin, 329 Mass. 586, 109 N.E.2d 838; New England Telephone & Telegraph Co. v. Brockton, 1955, 332 Mass. 662, 127 N.E.2d 301. The same rule has been applied to zoning by-laws. It was remarked in Wilbur v. Newton, 302 Mass. 38, 43, 18 N.E.2d 365, 368, that 'The existence of a nonconforming use of the land when the ordinance was enacted did not, either under its original or its amended terms, legalize new buildings in connection with that use.' It was pointed out in Inspector of Buildings of Burlington v. Murphy, ...