Petros v. Superintendent & Inspector of Blggs. of Lynn

• Decision Date: 28 June 1940
• Citation: 306 Mass. 368,28 N.E.2d 233
• Parties: PETROS et al. v. SUPERINTENDENT AND INSPECTOR OF BUILDINGS OF CITY OF LYNN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

306 Mass. 368

28 N.E.2d 233

PETROS et al.

v.SUPERINTENDENT AND INSPECTOR OF BUILDINGS OF CITY OF LYNN et al.

Supreme Judicial Court of Massachusetts, Essex.

June 28, 1940.

Exceptions from Supreme Judicial Court, Essex County.

Petition by Fotis Petros and another against the Superintendent and Inspector of Buildings of the City of Lynn and another to compel the Superintendent and Inspector of Buildings to revoke an occupancy permit for use of a building for keeping and killing of fowl and to compel him to enforce a zone ordinance, wherein the petitioners took exceptions.

Exceptions overruled.E. J. Canning and L. M. Kearns, both of Lynn, for petitioners.

P. F. Shanahan and J. F. Doyle, both of Lynn, for respondents.

QUA, Justice.

This petition is brought by the owners of a dwelling house ‘next door’ to No. 86 Blossom Street in Lynn to compel the superintendent and inspector of buildings of that city to revoke an ‘occupancy permit’ granted by him under date of April 13, 1939, for the use of the building located at No. 86 ‘for keeping and killing of fowl, as provided in permit issued by Board of Health’ and to compel this respondent to enforce the ‘Zone Ordinance’ of Lynn with respect to the premises at No. 86.

We assume, in the absence of any contention to the contrary, that the respondent superintendent and inspector of buildings is charged under §§ 21 and 22 of the zone ordinance with the duty of enforcing that ordinance in so far as concerns the matters here involved, and that this petition is properly brought to compel him to perform that duty. Paul v. Selectmen of Scituate, Mass., 17 N.E.2d 193. See O'Brien v. Turner, 255 Mass. 84, 150 N.E. 886;Cochran v. Roemer, 287 Mass. 500, 192 N.E. 58;LaMontagne v. Kenney, 288 Mass. 363, 193 N.E. 9. The ‘exclusive’ remedy by appeal to the board of appeals and thence to the Superior Court now provided for by G.L. (Ter.Ed.) c. 40, § 30, as inserted by St.1933, c. 269, § 1, and amended by St.1935, c. 388, §§ 1, 2, appears not to be available to the petitioners in this instance, since the petitioners are not applicants for a permit, and the remedy they seek cannot be placed within any of the powers of board of appeal enumerated in the amended section 30. Turner v. Board of Appeals of Milton, Mass., 25 N.E.2d 203. Compare Lambert v. Board of Appeals of Lowell, 295 Mass. 224, 3 N.E.2d 784.

The case was tried upon a case stated which it was agreed contained ‘a true statement of all the material facts bearing upon the issues' and wherein it was further expressly agreed that ‘no inferences * * * [were] to be drawn from the facts and documents set forth.’ Where a case is presented in this carefully limited way the plaintiff can prevail only if the court, fairly construing the language used, can read in it without the aid of any inferences of fact every fact essential to a cause of action. Frati v. Jannini, 226 Mass. 430, 115 N.E. 746;G.L. (Ter.Ed.) c. 231, § 126.

The decisive facts appearing in the case stated are now summarized: No. 86 Blossom Street is zoned in a so-called business district. The permitted uses of buildings in such districts include (in addition to those permitted in residence and apartment house districts) retail stores, retail trade, shops for custom work, manufacturing incidental to a retail business, offices, banks, restaurants, places of amusement and a long list of various businesses and occupations which for the most part are neither retail stores nor ordinary manufacturing, such as, for example, barber shops, clothes cleaning, photography, printing, shoe repairing and shining, tailoring, and undertaking. ‘Accessory uses' that do not ‘alter the character of the premises' or ‘impair the neighborhood’ are allowed. The ordinance further provides for ‘light industrial districts' and for ‘heavy industrial districts.’ In heavy industrial districts all uses are allowed, although ‘Abattoirs and stock yards' are to be subject to the permission of the city council. No. 86 Blossom Street is located in what was originally a single one-story brick building at the corner of Blossom Street and Summer Street. This building as constructed contained nine stores, five on Summer Street and four on Blossom Street. These stores are now occupied chiefly for various retail businesses, including groceries, meats and poultry, a pharmacy and a bakery. The store at No. 86 Blossom Street has now been separated from the rest of the original building by interior masonry walls without openings. We construe a plan which is made part of the case stated as showing that this store is now completely walled off from the rest of the original building. It is a small store roughly about twenty-five feet square in a neighborhood of small stores. Over the door is a large sign containing the words ‘Poultry Mkt.’ Live fowl ‘in numbers' are delivered to this store. They are kept ‘for varying periods of time depending upon the market demand’ and are killed by sticking each with a knife, after which they are plucked and cleaned. They are sold to retail meat markets and directly to customers who come to purchase a fresh killed fowl. No killing is done other than that of fowl. Some of the patrons and people engaged in the same business call the premises a slaughterhouse. The commissioner of public health of Lynn granted a...