Rose v. Board of Appeals of Wrentham
| Decision Date | 03 April 1967 |
| Citation | 352 Mass. 301,225 N.E.2d 63 |
| Parties | Gerald F. ROSE et al. v. BOARD OF APPEALS OF WRENTHAM. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Louis A. Macey, Boston, for plaintiffs.
Howard C. Abbott, Town Counsel, for defendant.
Before WILKINS, C.J., and WHITTEMORE, CUTTER, SPIEGEL and REARDON, JJ.
This is a bill in equity by way of appeal under G.L. c. 40A, § 21, from a decision of the board of appeals of the town of Wrentham (board) denying the plaintiffs' request for a variance. The case was submitted on a statement of agreed facts together with a number of exhibits including 'a copy of findings and decision of the (b)oard * * * which is part of the record of this case.' The parties agreed '(t)hat in the event the Court finds that the * * * (board has) jurisdiction over the porch in question, a variance may be required under the Zoning By-Law of the Town of Wrentham, before a building permit can be issued.' A final decree was entered dismissing the bill, and the plaintiffs appealed.
On August 29, 1961, the plaintiffs purchased the land and buildings on a lot bordering on Lake Archer which is a Great Pond. On September 1, 1961, 'while * * * (they) were making certain repairs to a certain porch' which was located 'within the confines of the Great Pond of Lake Archer' they were informed that a building permit was required. 'The plaintiffs appeared before the Board of Selectmen and were told to apply for a variance from the Board of Appeals.' After a public hearing the board denied the plaintiffs a variance.
The prior owners of the property had obtained a license from the Division of Waterways of the Department of Public Works which permitted them, 'subject to the provisions of * * * all laws which are or may be in force applicable thereto, to maintain existing fill with building thereon' and to maintain '(a) 1-story frame porch 12.9 feet by 10.1 feet * * * on said fill at its northeasterly corner.'
From the board's decision it appears that the previous owner constructed the porch without a building permit. The board subsequently denied a variance to that owner. After the board denied that variance ...
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