Olson v. Zoning Bd. of Appeal of Attleboro

• Citation: 324 Mass. 57,84 N.E.2d 544
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Decision Date: 08 March 1949
• Parties: ROBERT v. OLSON & another v. ZONING BOARD OF APPEAL OF ATTLEBORO.

324 Mass. 57

84 N.E.2d 544

ROBERT v. OLSON & another v. ZONING BOARD OF APPEAL OF ATTLEBORO.

Supreme Judicial Court of Massachusetts, Bristol.

March 8, 1949

October 25, 1948.

Present: QUA, C.

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

Zoning. Attleboro.

Building. Real Property, Building. Equity Pleading and Practice, Decree Zoning appeal.

A garage physically attached to a dwelling house and having under its roof and within its walls, adjacent to the house, a paved "breezeway" with open archways at the front and back and doors at the sides opening into the house and the garage proper, was not a separate "accessory building," but was a component part of the house and formed therewith one building, within a provision of the zoning ordinance of Attleboro requiring certain side yards in connection with "every building or structure (other than an accessory building . . .)" in a residential district.

In a suit in equity brought under G. L. (Ter. Ed.) c. 40, Section 30, as appearing in St. 1933, c. 269, Section 1, by way of appeal from a decision by a zoning board of appeals, where the decision of the board was within its jurisdiction and was correct on the merits, the decree of the Superior Court besides providing that the decision was within the jurisdiction of the board and should not be annulled and that the clerk send certain attested copies of the decree, should have provided that

"no modification of" the decision "is required."

BILL IN EQUITY, filed in the Superior Court on February 18, 1947.

The suit was heard by Goldberg, J.

J. W. McIntyre, for the plaintiff. No argument nor brief for the defendant.

WILLIAMS, J. This a bill in equity by way of appeal from the decision of the zoning board of appeal of the city of Attleboro brought under the provisions of Section 30, inserted in G. L. (Ter. Ed.) c 40, by St. 1933, c. 269, Section 1, as amended by St. 1935, c. 388, and St. 1941, c. 198, Sections 1, 2, to annual the decision of said board of appeal and to direct the inspector of buildings to issue to the plaintiffs a permit for an addition to their garage at 33 Ashton Road in said city. The plaintiffs have appealed from a decree entered by a judge of the Superior Court.

From the evidence which is reported and essentially is not in dispute, it appears that the plaintiffs are the owners of a lot of land with a single family dwelling and garage thereon located in a "single residence district" as defined by Section 2 of the zoning ordinance of the city of Attleboro which became effective on February 10, 1942. The house, containing seven rooms, is of wooden construction, Dutch colonial type, is thirty-five feet wide on its front or street side, and has a depth from front to back of twenty-five feet. As one faces it from the street there is a covered porch or piazza on the end of the house to the left and a one-car garage not over one and one half stories in height on the end to the right. The house, both on the front and on the rear, as well as the garage on the front, has a double pitched or gambrel roof. The roofs are of similar design, except that, in the rear, the garage roof has a single pitch. The garage is physically joined or "fastened" to the house. The garage is somewhat lower than the house, which is built upon a terrace, and the garage roof adjoins the house slightly below the level of the latter's second story windows. Between the house and the garage, but under and within the roof and walls of the latter, is an area six feet in width and three feet in depth paved with flagstones. At the left a door leads from this area down a few steps into the basement of the house and at the right a door opens into the garage. The area has two open archways, front and back, each three feet in width. Entering the front archway one passes through this archway, over the paved area, out through the rear archway and along a pathway to the kitchen door at the back of the house. This area, so described, was termed a "breezeway" in the testimony. The plaintiffs' garage as presently located is four feet from the right side line of their lot. They desire...