Karl V. Wolsey Co. v. Building Inspector of Bedford

• Decision Date: 09 June 1949
• Citation: 86 N.E.2d 644,324 Mass. 419
• Parties: KARL v. WOLSEY COMPANY, INC. v. BUILDING INSPECTOR OF BEDFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

324 Mass. 419

86 N.E.2d 644

KARL v. WOLSEY COMPANY, INC. v. BUILDING INSPECTOR OF BEDFORD.

Supreme Judicial Court of Massachusetts, Suffolk.

June 9, 1949

April 6, 1949.

Present: QUA, C.

J., LUMMUS, RONAN SPALDING, & WILLIAMS, JJ.

Building Laws. License.

A judgment dismissing a petition for a writ of mandamus directing the building inspector of a town to issue a permit, under the building laws of the town, for the construction of a dwelling house was affirmed on appeal where it appeared that the petitioner had failed to file specifications in compliance with an express requirement of such building laws that he should accompany a written application for the permit with "a true copy of the plans and specifications"; G L. (Ter.

Ed.) c. 143, 3K, as inserted by St. 1947, c. 631, Section 1, and as amended by St. 1948, c. 438, does not operate unless such plans and specifications have been filed.

PETITION, filed in the Superior Court on August 3, 1948, for a writ of mandamus.

The case was heard by O'Connell, J.

A. M. MacNeil, (L.

D. Goodale with him,) for the petitioner.

F. J. Kelley, Town Counsel, for the respondent.

RONAN, J. This is an appeal from a judgment dismissing a petition for a writ of mandamus to compel the respondent to issue permits for the construction of six dwelling houses in the town of Bedford.

The appeal comes here under G. L. (Ter. Ed.) c. 213, Section 1D, inserted by St. 1943, c. 374, Section 4, and such an appeal is similar in scope to an appeal in equity which opens for decision by this court all questions of law, fact and discretion. Henderson v. Mayor of Medford, 321 Mass. 732. Gilligan v. Registrars of Voters of Wilmington, 323 Mass. 346 . Hill v. Trustees of Glenwood Cemetery, 323 Mass. 388 . Caires v. Building Commissioner of Hingham, 323 Mass. 589 . Needham v. County Commissioners of Norfolk, ante, 293. The evidence has been reported. The judge made no express findings of fact, but the judgment dismissing the petition imports a finding of every fact essential to support his conclusion. Berry v. Kyes, 304 Mass. 56 . Artemis v. Malvers, 322 Mass. 136 . Attorney General v. Woburn, 322 Mass. 634 .

It is the contention of the petitioner that it has complied with the building by-laws of the town except in so far as they have been superseded by the alternatives set forth in the regulations of the board of standards as provided by G. L (Ter. Ed.) c. 143, Sections 3I, 3J, 3K, as inserted by St 1947, c. 631, Section 1, and as amended in Sections 3I and 3K by St. 1948, c. 438, that it has complied with these regulations, and that consequently it is entitled to the building permits from the respondent, who is authorized by Section 4 of the building by-laws to issue such permits.

An owner has the right to build upon or otherwise to improve his land and to use and occupy it for any lawful purpose, subject to such reasonable restrictions as may be imposed in the public interest, Kenney v. Building Commissioner of Melrose, 315 Mass. 291 , Shea v. Inspector of Buildings of Quincy, 323 Mass. 552; but he is not entitled to a writ of mandamus to compel the issuance of a building or use permit unless he shows compliance with the governing regulations. Where the issue is raised, as in the instant case, he must prove that he filed plans and specifications with the inspector of buildings. People v. Moore, 332 Ill.App. 500. People v. Morris, 334 Ill.App. 557.

Section 4 of the building by-laws of the town, in so far as material, contains the following provisions: No building is to be erected "until written application for permit therefor shall have been filed with the Inspector of Buildings, accompanied by a true copy of the plans and specifications, nor until the Inspector of Buildings has had an opportunity to inspect the plans and specifications and the premises in question." He is to issue a permit if the plans and specifications are in accord with the by-laws and the laws of the Commonwealth, otherwise he shall withhold the permit and report the matter to the board of selectmen. The filing of plans and specifications is a requisite to obtaining a permit. A person aggrieved by any decision of the inspector may appeal in ninety days to a board of appeal appointed by the selectmen. The board shall hear and decide all matters referred to it.

These by-laws further emphasize the necessity for filing an application and plans and specifications, as they provide in Section 3, defining the duties of the inspector, that he is to receive the application, that the plans and specifications shall be filed in duplicate with him and be dated and signed by him as soon as received, that, if approved, one copy thereof shall be returned to the applicant and the other shall be retained by the inspector and be filed in the office of the town clerk after the completion of the work, and that he shall not issue a permit until he has carefully examined the plans and specifications and ascertained that the proposed building conforms to law and regulations.

The petitioner is seeking relief under Section 4 of the by-laws in so far as that section deals with the granting of permits by the inspector, and consequently must be deemed to have recognized the validity and the application of the section, at least in reference to the matter of permits. Upon the refusal of the inspector to grant the permits the petitioner failed to request the selectmen to appoint a board of appeal to review the action of the inspector. It is true that there was no board of appeal, as there never was any previous occasion for its appointment. The evidence shows, and the judge could find, that the selectmen were ready to appoint such a board if the petitioner so requested. Leone v. Brewer, 259 N.Y. 386. Brown v. Owego, 260 App. Div. (N. Y.) 328, affirmed 284 N.Y. 655.

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