Seaman v. Zoning Bd. of Appeals of Holliston
| Decision Date | 08 March 1960 |
| Citation | 340 Mass. 488,165 N.E.2d 97 |
| Parties | Ralph H. SEAMAN v. ZONING BOARD OF APPEALS OF HOLLISTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Curtis B. Dooling, Fitchburg, for plaintiff.
Joseph L. Shea, Holliston, and Sidney S. von Loesecke, Newton Center, for defendant.
Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.
The zoning board of appeals of Holliston in March, 1959, denied the plaintiff's application for a permit to erect at his residence in a residential B district a sign to indicate that he is a 'realtor,' that is, 'a real estate broker who is an active member of a local board having membership in the national association of real estate boards.'
The zoning by-law authorizes in a B district the 'use of a room or rooms in a dwelling or accessory building for a customary home occupation or practice of a profession, provided there is no external evidence of any business other than permitted signs; * * * [and the] display of not more than two signs pertaining to the permitted use with a total area of not more than twelve square feet.'
The board denied the application specifying as grounds, inter alia, that the real estate business is not an accessory use customarily incidental to the use of the premises as a home and that the plaintiff's business is not a profession.
In the proceedings on appeal to the Superior Court (G.L. c. 40A, § 21) the parties filed a statement of agreed facts and the judge reserved and reported the case on that statement and the pleadings. G.L. c. 214, § 31.
The decision of the board is to be judged on the facts adduced in the Superior Court. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558-559, 120 N.E.2d 916.
The parties have rightly recognized in a stipulation included in the statement of agreed facts that the issues are the two stated above, with which the board dealt, and that 'if the vocation * * * is neither a profession nor 'a customary home occupation' * * * no modification of * * * [the board's] decision is required.'
For purposes of zoning classification a real estate broker is engaged in business and is not practising a profession. Though the vocation, like many businesses, may have professional aspects, they are not primary. G.L. c. 112, §§ 87PP, 87RR. Jones v. Robertson, 79 Cal.App.2d 813, 816-818 180 P.2d 929, and cases cited. Rathkopf, The Law of Zoning and Planning, c, 23, § 19. See Building Com'r of Brookline v. McManus, 263 Mass. 270, 273, 160 N.E. 887.
The plaintiff shows no right to require the permit under the 'customary home...
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...See, for example, G.L. c. 112, §§ 87PP-87DDD (inserted by St.1957, c. 726, § 2), as amended. See also Seaman v. Zoning Bd. of Appeals of Holliston, 340 Mass. 488, 489, 165 N.E.2d 97; Ranke v. Corporation & Sec. Comm., 317 Mich. 304, 310, 26 N.E.2d 898; Roman v. Lobe, 243 N.Y. 51, 54-57, 152......
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