Pratt v. Building Inspector of Gloucester
| Decision Date | 01 July 1953 |
| Citation | 113 N.E.2d 816,330 Mass. 344 |
| Parties | PRATT et al. v. BUILDING INSPECTOR OF GLOUCESTER. . Essex |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Donald J. Ross, Gloucester, for petitioners.
Carlton W. Wonson, City Sol., Gloucester, for respondent, submitted a brief.
Before QUA, C.J., and LUMMUS, WILKINS, WILLIAMS and COUNIHAN, JJ.
This petition for a writ of mandamus is brought by two owners of residential property in Gloucester to compel the building inspector to perform his duty to enforce the city's zoning ordinance by causing the intervener, one Milne, to cease maintaining a stable on his land which adjoins the residence of one of the petitioners and is near that of the other. Sunderland v. Building Inspector of North Andover, 328 Mass. 638, 105 N.E.2d 471. The trial judge dismissed the petition.
Section 3 of the ordinance lists the uses of property permitted in a "Single Residence District." The first use listed is Then follow uses such as parks, farms, churches, and others not here pertinent. Stables are not listed. No mention is made of accessory uses. Stables are listed in § 8 among the uses permitted in business districts, but their use is made subject to § 19 which provides that no permit for any of a large number of more or less undesirable uses, including stables, shall be issued by the building inspector except with the written approval of the municipal council after notice and hearing and subject to such conditions as the council may impose.
Milne has obtained the approval of the municipal council for his stable after hearing in accordance with § 19, and the respondent has issued a permit to him. The respondent contends that § 19 gives the council power to allow permits for any of the undesirable uses there mentioned in any district, including a single residence district, without regard to the restrictions imposed by the ordinance in such district. We cannot so read § 19. We think that section was designed to provide the additional safeguard of council approval for certain undesirable uses in districts where they were otherwise permitted and not to break down the plan of the ordinance by allowing the council to introduce such uses into otherwise forbidden districts.
It is plain that Milne's stable is not itself a "One-family detached" house. It is therefore not allowable in a single residence district unless it can come in on the theory that it is merely an incident or accompaniment of such house and impliedly permitted in spite of the fact that the ordinance says nothing about accessory uses. The record informs us that the zoning ordinance was "adopted originally in 1927 and renacted in 1950."
In the stable and in an open yard outside of the stable structure Milne keeps two "nice appearing" horses for show purposes and family...
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