Howland v. Acting Superintendent of Bldgs. and Inspector of Bldgs. of Cambridge

• Decision Date: 30 November 1951
• Parties: HOWLAND v. ACTING SUPERINTENDENT OF BUILDINGS AND INSPECTOR OF BUILDINGS OF CAMBRIDGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 423

102 N.E.2d 423

328 Mass. 155

HOWLAND v. ACTING SUPERINTENDENT OF BUILDINGS AND INSPECTOR OF

BUILDINGS OF CAMBRIDGE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 10, 1951.

Decided Nov. 30, 1951.

S. S. Ganz, Boston, for plaintiff.

J. A. Daly, City Sol., Boston, for defendants.

Before QUA, C. J., and LUMMUS, WILKINS, and WILLIAMS, JJ.

QUA, Chief Justice.

This is a bill in equity brought in the Superior Court by way of appeal against the 'acting superintendent of buildings and inspector of buildings' of Cambridge and the board of appeal of Cambridge, growing out of the alleged refusal of the 'acting superintendent of buildings and inspector of buildings' to grant the plaintiff's 'request for permission to subdivide' his property 'so as to permit the separate sale of the portion of his premises comprising 92 Foster Street,' and out of action of the board of appeal alleged to constitute a 'denial' or an alleged appeal by the plaintiff to the board from the action of the superintendent and inspector; and also growing out of action of the board in refusing its own 'approval' of the proposed subdivision. The Superior Court dismissed the bill, and an appeal by the plaintiff brings the case here. G.L.(Ter.Ed.) c. 40, § 30, as appearing in St. 1933, c. 269, § 1, and as amended by St. 1935, c. 388, §§ 1 and 2, by St. 1941, c. 198, §§ 1 and 2, and by St. 1945, c. 167.

The case against the 'acting superintendent of buildings and inspector of buildings' can be shortly disposed of. We find nothing in the statutes or in so much of the ordinances of Cambridge as appears in the record which gives authority to a superintendent of buildings or to an inspector of buildings or to any officer of that general character by whatever name called, see G.L. (Ter.Ed.) c. 143, § 6, as appearing in St. 1946, c. 363, § 4, as amended by St. 1949, c. 541, § 1, to grant 'permission' for the 'subdivison' of property to permit separate sales of portions thereof or authority control sales of land or the boundaries of land to be sold, or which recognizes any right to appeal to the board of appeal from any refusal of such a superintendent or inspector to act in such matters. The bill was rightly dismissed as to the 'acting superintendent of buildings and inspector of buildings.'

In so far as the plaintiff's application to the board of appeal related to the refusal to act of the 'superintendent of buildings and inspector of buildings' it also is disposed of by what has been said; but so much of that application as seeks the board's approval of the proposed subdivision of the plaintiff's property seems to us, for reasons which will more clearly appear when the facts are stated, to be in substance a petition for a variance within the jurisdiction of the board. G.L.(Ter.Ed.) c. 40, § 30, ninth paragraph, subparagraph 3, as appearing in St. 1933, c. 269, § 1, as amended by St. 1935, c. 388, § 2. The board so treated it.

The facts pertinent to the matter of a variance, are, we believe, quite different from those presented in any other of our cases. They are ascretained from the pleadings and the findings of the judge. The evidence is not reported. Certain documents which may have been introduced at the hearing are not incorporated in the findings and are not properly before us and cannot be considered. Gordon v. Guernsey, 316 Mass. 106, 55 N.E.2d 27. The facts appearing from the record are substantially these: The plaintiff owns 'a lot' of land on Foster Street 'in the densest part of a dense residential district.' This lot has a frontage of sixty feet and a depth of one hundred feet. On it are three dwelling houses and a three car garage. The houses are at least seventy-five years old. There have been no structural changes in any of the buildings since 1920. The plaintiff no longer lives in Cambridge and desires to sell at least a part of the property. He could sell more advantageously if each house could be sold separately. He therefore proposes to subdivide his lot into three parcels, of which 'Lot A' would include the house numbered 92 on Foster Street and the garage. This parcel would have a frontage of thirty-eight and four tenths feet on Foster Street and a depth of seventy-three feet. 'Lot C' would include the house at 96 Foster Street and would have a frontage of twenty-one and six tenths feet on Foster Street and a depth of seventy-three feet. 'Lot B' would include the house in the rear of the other two now numbered 94 Foster Street and would be sixty feet by twenty-seven feet in size. This lot would have no frontage on the street and could be reached from the street only by a proposed private right of way four feet wide along the boundary between 'Lot A' and 'Lot C.' 'No visible change whatever would result from the subdivision which the plaintiff proposes. The only consequence is that the ownership will be held by three persons instead of one person, and Lot C will be subject to an easement or right of way for the benefit of the owner of Lot B.'

It further appears that the zoning ordinance of Cambridge adopted in 1943 provides that in a Residence C-1 District, in which the plaintiff's land is located, 'the minimum lot area, lot width,' shall be '5,000 sq. feet and 50 ft. frontage.' Other provisions are these, both of which are found in Article VI: 'Sec. 2. Frontage and Reduction of Area. 1. No building shall be erected on a lot which does not have frontage on a street, road or way at least twenty (20) feet in width. 2. No lot shall be changed in size or shape so that the height, area or yard provisions herein prescribed are no longer satisfied.' ¹ 'Sec. 1. Existing buildings. This ordinance shall not apply to existing buildings or structures, nor to the existing use of any building or structure, or of land to the extent to which it is used at the time of adoption of this ordinance, but it shall apply to any change of use thereof * * *.' ²

The plaintiff's first contention is that since his land and buildings existed in their present physical condition before any zoning ordinance had been...