Inspector of Buildings of Burlington v. Murphy
| Decision Date | 16 September 1946 |
| Parties | INSPECTOR OF BUILDINGS OF BURLINGTON v. WALTER F. MURPHY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
May 7, 1946.
Present: FIELD, C.
J., LUMMUS, DOLAN RONAN, & WILKINS, JJ.
Zoning. License.
The provisions of Section 26 of G. L. (Ter. Ed.) c. 40, as appearing in St.
1933, c. 269 Section 1, did not legalize the construction, for use for a purpose in violation of the terms of a valid zoning by-law of a town respecting the uses permitted in a residence district of a building which either was an "extension" of a larger building used for that purpose before the adoption of the by-law, or was a new, separate building constructed for that purpose.
A building permit issued by the building inspector of a town cannot legalize a structure which is in violation of a valid zoning by-law.
BILL IN EQUITY filed in the Superior Court on June 4, 1945. The suit was heard by Dillon, J., by whose order a final decree was entered enjoining the defendant "from using a certain building erected by the defendant on the land on Center Street, Burlington, Massachusetts, described in the bill of complaint, which said building being about thirty-six feet by sixty feet is attached to the building now located on said premises and used for the purpose of the slaughtering of animals."
J. G. Bryer, for the defendant. J. J. Moss, Town Counsel, for the plaintiff.
On November 13, 1945, the Superior Court entered a final decree permanently enjoining the defendant against using a certain building declared to be about thirty-six feet wide and sixty feet long erected by him on his land in the spring of 1945 which the decree declared to be attached to a larger building which prior to the adoption of a zoning by-law by the town of Burlington in 1943 and ever since has been used for slaughtering swine. The defendant appealed.
The validity in general of that zoning by-law was established in Burlington v. Dunn, 318 Mass. 216 . The defendant's land, comprising about twenty-five acres, is located in a "Residence B District" in which, the zoning by-law provides, no building or structure can lawfully be erected for any commercial purpose except farming, which as defined excludes the keeping of more than three swine. The word "structure" is defined as "anything constructed or erected, the use of which demands a permanent location in the soil, or attached to something having a permanent location in the soil." Under the heading of "non-conforming uses," it is provided that "no building or premises devoted to a non-conforming use or uses, in whole or in part shall be structurally changed, enlarged or extended" unless the uses become conforming uses. It is further provided that "a non-conforming building or structure shall not be altered except as ordered by the building inspector to make it safe."
The judge made no express finding of facts, but the evidence is reported. From the evidence it appears that for some years before the adoption of the zoning by-law the defendant kept swine on his land and that he used a large building thereon for slaughtering large numbers of swine raised by him and others. In the spring of 1945, after the zoning by-law had been in force more than a year, he constructed the building referred to in the final decree, which was about twenty-two feet by thirty-five feet in size, and was either an extension of the large building, as the final decree intimates, or a separate building, and was constructed for the purpose of keeping swine before slaughtering them, for which purpose a part of the large building had previously been used. Whether the new building be deemed a part of the large building or not, its construction violated the terms of the zoning by-law. See H. W. Robinson Carpet Co. v. Fletcher, 315 Mass. 350, 353.
The main question is whether the defendant is protected by the statute relating to nonconforming uses. In Cochran v. Roemer, 287 Mass. 500 , the existence at the passage of a zoning law of a small coal and coke business was held to justify the later erection of a large coal elevator for the purpose of carrying on a much larger business. But that case was decided under the zoning statutes applicable to the city of Boston, which have always been more liberal toward nonconforming uses than the general statutes applicable elsewhere. St. 1924, c. 488 Section 9. St. 1932, c. 143, Section 3. St. 1941, c. 373, Section 8, which took effect by acceptance by the city council and approval by the mayor in May, 1943, of St. 1938, c. 479. The present case depends upon statutes that have a wholly different history. St. 1920, c. 601, Section 7. G. L. (1921) c. 40, Section 29. St. 1925, c. 116, Section 3. St. 1933, c. 269, Section 1, by which the number of the section of G. L. (Ter....
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