Dodge v. Inspector of Bldgs. of Newburyport

• Citation: 164 N.E.2d 309,340 Mass. 382
• Parties: Allen A. DODGE et al. v. INSPECTOR OF BUILDINGS OF NEWBURYPORT et al.
• Decision Date: 09 February 1960
• Court: United States State Supreme Judicial Court of Massachusetts

Page 309

164 N.E.2d 309

340 Mass. 382

Allen A. DODGE et al. v. INSPECTOR OF BUILDINGS OF NEWBURYPORT et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued Jan. 7, 1960.

Decided Feb. 9, 1960.

James T. Connolly, Newburyport, for petitioners.

Walter J. Hurley, W. Roxbury (James P. Reardon, Newburyport, with him), for interveners.

Before WILKINS, C. J., and WILLIAMS, COUNIHAN, WHITTEMORE and CUTTER, JJ.

WHITTEMORE, Justice.

In this petition for writ of mandamus filed December 15, 1958, against the inspector of buildings of Newburyport the petitioners sought to require enforcement of the zoning ordinance in respect of a dwelling at 376 High Street in the general residence district, and to end the use of the premises for a drug store, eating place and 'large store' by Robert E. Doyle and wife, owners and occupants of the premises, and interveners herein. After an auditor's report, 'findings of fact * * * final,' on a motion for judgment on the report, judgment was entered for the petitioners. This is the appeal of the interveners. G.L. c. 213, § 1D.

The zoning ordinance, adopted September 30, 1940, provides that in a general residence district 'Any front room in any house may be used by the owner or occupant of said house as a small store for the sale of food, clothihg or small wares. But in no case shall the owner or occupant be allowed to build any projection beyond as a bay, or addition, which shall project beyond the front or side of said building to be used for the purpose of a store, sale, or store room, for the storage of goods to be sold on the premises.'

Doyle on April 15, 1958, applied to the respondent inspector of buildings for a permit for '[r]enovations (increase size of front room)' in which an affirmative answer was given to the question 'Is there to be a store in the lower story?' The permit was issued May 27, 1958, 'to remodel front room.' Doyle and his wife took title by deed dated May 28, 1958, recorded September 8, 1958. Remodelling began after September 8, 1958, and was finished on December 10, 1958.

The interveners' house is on the corner of Upland Road and High Street and the petitioners are owners of contiguous or nearby properties. Prior to the remodelling, this one-family house had a glass porch used, in summer only, for living purposes; the front entrance was through the porch into a small with stairs leading to the second floor; to the left of the hall was the front room and in the rear of this was a small den leading into a large living room, behind which were a kitchen and back porch.

The remodelling has removed the partitions between the glass sun porch, the front room, the den and the living room and has also removed the front stairs and stair well. The entire first floor, except the kitchen and back porch, has been made into the drug store premises, which have a frontage on High Street of about thirty feet and a depth of about thirty-seven feet. Doyle is a registered pharmacist and employs another, part time. The store is used to compound prescriptions and for the sale of patent drugs, numerous miscellaneous items now usually sold in drug stores, 'crackers in package[s] to take out, or eat in store, * * * hot coffee, * * * hot chocolate, ice cream, sodas, milk shakes, frappes, [and] sundaes.'

The auditor concluded that 'prior to remodelling * * * the predominant use of the building * * * was residential' but thereafter 'the predominant use * * * is a drug store and * * * the residential use is secondary,' and that '[i]n so far as it is a question of fact * * * the use made by respondent Doyle is not in accordance with but is contrary to * * * [the] zone ordinance.'

There was no error.

There are obvious violations of the zoning ordinance both in the space used and the business done. The ordinance does not in terms nor by implication provide that a front room can be enlarged to include several other rooms and nearly all of the first floor area, and thereafter used as a store. The prohibition of a projection to be used as a store or sale room or store room does not imply authority to do internally what was done here. So far as this house goes Doyle is using for a store the...