Hinves v. Commissioner of Public Works of Fall River

• Decision Date: 09 February 1961
• Citation: 342 Mass. 54,172 N.E.2d 232
• Parties: Edith HINVES v. COMMISSIONER OF PUBLIC WORKS OF FALL RIVER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 232

172 N.E.2d 232

342 Mass. 54

Edith HINVES v. COMMISSIONER OF PUBLIC WORKS OF FALL RIVER et al.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Jan. 6, 1961.

Decided Feb. 9, 1961.

Thomas F. McGuire, Fall River (Peter G. Collias, Fall River, with him), for intervener Esther Minkin.

Francis T. Meagher, Fall River, for the petitioner.

John T. Farrell, Jr., Assistant Corp. Counsel, Fall River, for respondent, submitted a brief.

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

SPIEGEL, Justice.

This is an appeal, under G.L. c. 213, § 1D, from the order of the Superior Court dated December 24, 1959, that a writ of mandamus issue, as prayed for, directing the Commissioner of Public Works of Fall River to enforce the zoning ordinance of that city. The petitioner alleged that the building abutting her residence and owned by the intervener, Esther Minkin, was being used for the purposes of a 'catering service' in violation of the ordinance designating the area as a 'single residence district.' The intervener and the Commissioner of Public Works answered that the building is being used for a purpose which continues a nonconforming use pre-existent to the ordinance (i. e. a grocery store).

The case was referred to an auditor whose findings of fact were not to be final. The auditor found that sometime in 1925 a retail store building was constructed upon the premises in controversy. On August 1, 1927, at which date the city of Fall River adopted a zoning ordinance which designated the area in which the building is located as a single residence district, the building in question was being used in the operation of a grocery store. Article II, § 12, of the zoning ordinance provides that 'In the single residence districts * * * no premises shall be used for (A) Any * * * commercial purpose * * *.' Article I, § 5, of the zoning ordinance states, 'This chapter shall not apply to existing buildings or structures, nor to the existing use of any building or structure, but it shall apply to any alteration of a building or structure to provide for a purpose, or in a manner, substantially different from the use to which it was put before the alteration.' This obviously provides for the continuance of nonconforming buildings, structures and uses existing at the time of the effective date of the zoning ordinance. So far as its pertinency to the instant case is concerned the zoning ordinance has not been changed. From the time of the passing of the zoning ordinance until July, 1958, the building continued to be operated as a grocery store. This, of course, was a nonconforming use, but a permissible one. After the intervener purchaser the premises, in the spring of 1958, she terminated the tenancy of the then occupant who had been operating a grocery store. The tenant vacated the premises in or about July, 1958.

Mrs. Minkin, the intervener, then made the following repairs and changes: the electric wiring was repaired, a partition was restored, in place of two electric meters a single meter was installed, a stove was installed, one of two walk-in coolers was replaced, a sink, refrigerator and display cases were moved in, the outside of the building was painted, the roof was repaired, and wooden steps were replaced with concrete stairs.

In the October 1, 1958, issue of the Fall River Herald News, a newspaper published and circulated in Fall River, the intervener advertised a grand opening on Thursday, October 2, 1958, of the 'Esther Minkin Kosher Catering Service and Delicacy Shoppe [at] 654 Weetamoe Street.'

When the intervener opened for business she offered for sale, other than the ordinary and usual groceries, meat pies, ground meat and rice rolled in cabbage leaves, potato...