Kenney v. Building Com'r of Melrose

• Decision Date: 28 December 1943
• Citation: 52 N.E.2d 683,315 Mass. 291
• Parties: DOROTHY G. KENNEY v. BUILDING COMMISSIONER OF MELROSE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 291

52 N.E.2d 683

DOROTHY G. KENNEY v. BUILDING COMMISSIONER OF MELROSE.

Supreme Judicial Court of Massachusetts, Middlesex.

December 28, 1943

November 4, 1943.

Present: FIELD, C.

J., LUMMUS, QUA COX, & RONAN, JJ.

Zoning. Melrose.

Words "Greenhouse," "Conservatory.

"

A conservatory eleven feet by twenty-four feet in size, to be attached to a garage in the rear of a dwelling house in Melrose and to be used for the cultivation of plants solely for the personal pleasure of the owner of the premises, would come within a provision of the Melrose zoning ordinance permitting in a residential district a building for "accessory purposes such as are proper and usual with residences," and formal requirements being met, the owner as a matter of law was entitled to the issuance of a permit for its construction; it would not be a

"greenhouse" within another provision of the ordinance authorizing the building commissioner with the consent of the planning board to give permission for the use of premises in such a district for "Stock-farm, truck garden, nursery or greenhouse."

PETITION for a writ of mandamus, filed in the Superior Court on May 19, 1943.

The case was heard by Dowd, J. In this court it was submitted on briefs. J. G. Bryer, for the petitioner.

H. E. Cryan, City Solicitor, for the respondent.

RONAN, J. This is an appeal from an order dismissing a petition for a writ of mandamus, brought in the Superior Court against the building commissioner of Melrose, to compel him to issue a building permit for the construction of a building designed for use as a garage and a conservatory. The case was submitted to the trial judge upon a statement of agreed facts.

The premises of the petitioner are located in a "Residence `A' District" as defined by the zoning ordinance of the city. This ordinance provides in section 5, in so far as now material, that, within any Residence "A" or "A-1" district, except as provided in section 7, no building or premises shall be used and no building or structure shall be erected except for dwelling houses and other specifically enumerated purposes, among which are those contained in section 5 (g), which reads as follows "Accessory purposes such as are proper and usual with residences for one family and are not injurious to a neighborhood as a place for such residence." Section 7, which is captioned "Permissive Uses in Residence `A', `A-1' and `B' Districts," authorizes the building commissioner with the written consent of the planning board to give permission in accordance with the procedure provided in section 4 for the construction and use of buildings and land for certain purposes including, as specifically set forth in section 7 (b), "Stock-farm, truck garden, nursery or greenhouse." Section 4 provides for the filing of an application with the building commissioner, where permission of the commissioner and the planning board is required for the construction and use of a building for a purpose permitted by the ordinance, and, after notice and a public hearing by the commissioner and the board, for the granting or refusal of the application. The building ordinance, however, by section 7, authorizes the commissioner to grant a permit for the construction of a building if the application and specifications conform to the requirements of the building and other ordinances of the city.

The petitioner contemplates the erection in the rear of her residence of a garage measuring fifteen by twenty feet joined by an enclosed passageway to a conservatory which is to measure eleven by twenty-four feet. She intends to cultivate exotic plants and flowers for her personal use in her own home. The plans or the proposed structure were prepared by an architect. The application for the building permit, which was filed in accordance with the building ordinance, was properly made on a form supplied by the building commissioner, and the plans, which accompanied the application, were in form satisfactory to the building commissioner. The judge ruled that the respondent was "given discretionary power under section 7 of the zoning ordinances" to grant or refuse an application for a building permit for the construction of the building contemplated by the petitioner, found that there was no abuse of discretion in refusing the petitioner's application, and ordered the petition dismissed.

An examination of the statement of agreed facts indicates that the present controversy seems to center entirely about the erection of the conservatory rather than of the garage. It may have been thought that the difficulties that once lay in the path of one seeking to erect and use a private garage which is an appurtenance to a dwelling and in which not more than three automobiles are to be kept have been cleared away by G. L. (Ter. Ed.) c. 148, Section 14, as amended by St. 1938, c. 103. We consider the case as presented by the parties.

The petitioner filed proper application and plans with the building commissioner, which, in the absence of anything to the contrary appearing, we assume called for the erection of a structure in conformity with the provisions of the building ordinance. She contends that she was entitled as matter of law to the issuance of a permit. There would, doubtless, be much strength in the petitioner's contention if the building ordinance alone were involved. While the right of a landowner to utilize his land by the construction of a building for a lawful purpose may be regulated by an ordinance prescribing definite standards and guides to be followed in its construction, yet upon compliance with these requirements he is entitled to a permit. The right to build would be utterly lacking in substance if its exercise could be prevented...