McLaughlin v. Board of Appeals of Harwich

• Decision Date: 03 May 1971
• Citation: 269 N.E.2d 244,359 Mass. 416
• Parties: George A. McLAUGHLIN v. BOARD OF APPEALS OF HARWICH et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 244

269 N.E.2d 244

359 Mass. 416

George A. McLAUGHLIN v. BOARD OF APPEALS OF HARWICH et al. ¹

Supreme Judicial Court of Massachusetts, Barnstable.

Argued March 5, 1971.

Decided May 3, 1971.

Walter H. McLaughlin, Jr., Boston, for plaintiff.

Edward U. Lee, Boston, for Charles W. Sullivan.

Before TAURO, C.J., and SPALDING, SPIEGEL, REARDON and BRAUCHER, JJ.

SPALDING, Justice.

This is a bill in equity under G.L. c. 40A, § 21, by way of appeal from a decision of the board of appeals, of the town of Harwich (town). The judge made findings of fact and reported the case without decision. G.L. c. 214, § 31. The evidence is reported.

We summarize the findings of the judge as follows. The zoning by-law of the town provides in relevant part: 'In residential and agricultural districts * * * no building * * * shall be erected * * * except a. Detached one or two family dwelling with privilege for renting of not more than five (5) rooms * * *' and 'Except for shopping centers, industrial complexes, municipal facilities and public utilities, only one principal structure shall be permitted on one lot.' ²

The defendant Charles W. Sullivan (Sullivan) owns a lot in the town near the plaintiffs' summer residence. On October 30, 1968, an application was filed for a permit to build a duplex house on this lot. The application was approved by the building inspector and a permit was issued. Contending that the issuance of the permit was not authorized by the town's zoning by-law, the plaintiff appealed to the board of appeals. From a decision of the board affirming the granting of the permit, the plaintiff appealed to the Superior Court. By the time the case was heard in the Superior Court, the building in question was completed. ³ The structure erected pursuant to the permit was described by the judge as follows: '(T)wo five-room dwellings each with separate foundation walls solidly enclosing each basement separately and each containing an open cellar * * *. Each dwelling has a separate roof; each has a separate front door and rear door entrance. * * * Both dwellings are connected by or attached to a breezeway * * * (ten feet) wide. A foundation and slab is set on footings and support the breezeway. * * * There is no continuous roof from the dwellings over the breezeway. * * * There are no doors for entrance to either dwelling from the breezeway * * *. There are ordinary windows from each dwelling that face the breezeway. The breezeway serves as the passage way from the front yard to the rear yard. The roof on the breezeway is at a level lower than the separate roofs of each dwelling. * * * The exterior painting of doors and blinds of each house are of different colors.' The judge found that 'on one lot there are two complete five-room 'salt box type' dwellings with identical floor plans and each separately functional joined by the breezeway.' The questions reported by the judge were: (1) 'Did Sullivan construct 'one principal structure' on one lot as defined in * * * (the town) zoning by-law?' and (2) 'Was the Building Permit issued by * * * (the building inspector of the town) to Sullivan in violation of the provisions of * * * (the town's) zoning by-law?'

The decisive question which is dispositive of both questions reported is whether the building is 'one principal structure' as defined by the zoning by-law of the town. At the arguments in this court Sullivan moved that the case be dismissed on the grounds of mootness and attached to the motion an affidavit setting forth the facts upon which the motion rested. See Hubrite Informal Frocks, Inc. v. Kramer, 297 Mass. 530, 532--533, 9 N.E.2d 570. Counsel for the plaintiff in response to questions put by the court agreed that the facts set forth in the Sullivan affidavit were correct and stated that he did not wish to file a counter affidavit. The affidavit states in relevant part: 'Since the hearing in Superior Court Sullivan eliminated the breezeway altogether by closing in the area with the same characted and type of construction as in the rest of the structure, enlarged the roof area at the former site of the breezeway, converted the space formerly occupied by the breezeway area into four walk-in closets (two for each apartment), repainted the trim and blinds in one uniform color, removed the concrete pad of the...