Ellen M. Gifford Sheltering Home Corp. v. Board of Appeals of Wayland
| Decision Date | 08 June 1965 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | ELLEN M. GIFFORD SHELTERING HOME CORPORATION v. BOARD OF APPEALS OF WAYLAND. |
Stuart DeBard, Boston, for plaintiff.
William J. McCluskey, Boston (Frank W. Kilburn, Jr., Town Counsel, with him) for defendant.
Before WILKINS, C. J., and WHITTEMORE, KIRK, SPIEGEL, and REARDON, JJ.
This is an appeal by the plaintiff from a final decree of the Superior Court upholding the decision of the defendant board of appeals which sustained the building inspector's refusal to grant a building permit. We have previously considered an earlier application of the plaintiff for a permit. (See footnote 4.) We now consider a further chapter in the plaintiff's effort to establish in the town of Wayland a sheltering home for cats.
According to the statement of agreed facts the plaintiff, a charitable corporation, purchased in November, 1960, property at 302A Concord Road, Wayland (designated lot No. 12), containing 230,404 square feet. This property is in a single residence zone and is part of a subdivision under G.L. c. 41, §§ 81K-81GG. The planning board of the town approved the subdivision on or about December 22, 1958, subject to the condition, among others, that 'not more than one dwelling shall be erected or placed on each of Lots 11 & 12.' 1 On August 8, 1961, the plaintiff applied for a building permit to erect on lot No. 12, where then existed a dwelling house, an additional structure in the form of a one story building intended to house 150 to 200 cats. On August 28, 1961, the building inspector informed the plaintiff that the former had no authority under the town's by-laws to grant the desired permit and that the plaintiff would have to apply to the board of appeals for a special permit. 2 On December 5, 1962, the plaintiff appealed from the refusal of the building inspector to issue a permit. After a hearing on January 3, 1963, the board of appeals sustained the decision of the building inspector. 3
The judge found that a permit to build a 'sheltering cat home' was issued by the building inspector on November 16, 1960; that the permit was revoked on January 4, 1961; and that thereafter the plaintiff was enjoined from constructing the building. 4 He found that § V(h) of the zoning by-law in effect on November 16, 1960, would have permitted the erection and use of the sheltering home but that on January 11, 1961, the by-law was amended to require a special permit from the board of appeals for buildings of charitable institutions in single residence districts. It was under this amended by-law that the building inspector refused on August 28, 1961, to issue the permit.
The issue, as stated by the judge of the Superior Court, is whether the plaintiff is entitled to a building permit as a matter of right in view of G.L. c. 40A, § 7A, and the subdivision plan approved by the planning board on December 22, 1958. The plaintiff has argued that under G.L. c. 40A, § 7A, the board of appeals is obligated to allow the proposed use. It is our opinion that this question of statutory interpretation need not be decided since by reason of the 'one dwelling' limitation the plaintiff cannot erect the sheltering home on lot No. 12. This is not the ground on which the judge based his decree, but the case is before us on a statement of agreed facts, and we therefore treat it as a case stated and consider all issues raised by the record. Adams v. American Employers Ins. Co., 292 Mass. 260, 261, 198 N.E. 147; ROGERS V. ATTORNEY GEN., 347 MASS. 126, 130 , 196 N.E.2D 855A.
The 'one dwelling' limitation is authorized by G.L. c. 41, §§ 81Q and 81R. The latter section provides that a planning board 'may, where the ways are not otherwise deemed adequate, approve a plan on conditions limiting * * * the number of buildings that may be erected on particular lots * * *.' The building inspector may not issue a building permit 'until first...
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