Siegemund v. Bldg. Com'r of City of Boston

• Decision Date: 20 May 1927
• Citation: 156 N.E. 852,259 Mass. 329
• Parties: SIEGEMUND v. BUILDING COM'R OF CITY OF BOSTON (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

259 Mass. 329

156 N.E. 852

SIEGEMUND

v.BUILDING COM'R OF CITY OF BOSTON (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1927.

Cases Reserved from Supreme Judicial Court, Suffolk County.

Separate petitions, for a writ of certiorari and for a writ of mandamus, by Annie L. Siegemund against the Building Commissioner of the City of Boston. Cases reserved by a single justice for determination of the full court. Petition for writ of certiorari dismissed. Peremptory writ of mandamus to issue.F. H. Stevens, of Boston, for petitioner.

L. Schwartz, Asst. Corp. Counsel, of Boston, for respondent.

Asa P. French, of Boston, amicus curiae.

RUGG, C. J.

The agreed facts in substance are that the petitioner is now and has been for a number of years the owner of land with a dwelling house thereon numbered 84 on Crawford street in the Roxbury district in Boston. In December, 1925, land at the corner of two streets, numbered 88 Crawford street and 194 Humboldt avenue, was bought by persons who with the successor in title will hereafter be designated as the owners. They were granted by the respondent on December 5, 1925, a permit to erect a building belonging to the tenement house class under the building laws, three stories in height and divided into three buildings separated by two party walls, extending to the street line on Humboldt avenue, and the rear extending to the street line on Crawford street for about twenty-five feet from the corner of Humboldt avenue, and from that point varying from zero to about thirteen feet back from that street line, and having an open space of about six and one-half feet from land of the petitioner. The proposed buildings are shown as ‘fronting upon a proposed court, or private way (not yet approved by any department of the city of Boston or yet constructed), called ‘Franklin Garden,” a name given it by the owners. This court or private way first appears on plans filed with the respondent and is shown as being twenty-eight feet wide. These proposed buildings are given numbers 2, 4, and 6 on the so-called ‘Franklin Garden’ and show a setback therefrom of ten feet. The petitioner, on December 17, 1925, filed with the respondent a statement in writing of her grievance by the erection of the proposed building, setting forth that the same was in violation of St. 1924, c. 488, § 12, 13, the zoning act of the city of Boston. Prior to the enactment of this act and at the time of the purchase of this land by the owners, there existed thereon, about thirty feet back from Humboldt avenue and Crawford street, a dwelling house soon after torn down by the owners. It further is stated in the agreed facts:

‘At the time of the filing by this petitioner, in writing, with the building commissioner a statement of her grievance, alleging violation of the zoning laws, the respondent, due to oral complaint of the petitioner alleging said violation of said zoning act, put into effect on further work on said building, a ‘stop order,’ which has continued in effect and is now in effect, awaiting the outcome of the legal proceedings brought by this petitioner. No action has been taken by the street commissioners of the city of Boston up to the present time, approving the location, grades or recognition of the court or private way, known as ‘Franklin Garden’ and no record of the same has been made in said department or any other department of the said city of Boston, it only appearing on the plans filed with the building commissioner, with respect to the granting of the permit to build thereon to one Cecelia Rosenberg, and on a plan filed in Suffolk county registry of deeds December 4, 1925. * * * The numbering of the buildings, 2, 4 and 6 on said Franklin Garden, was furnished by the supt. of permits of public works dept. of the city of Boston, upon the application of the owners.'

[1][2] The petitioner is the owner of land adjacent to that for which the building permit has been granted, and was a ‘person aggrieved’ within the meaning of those words in St. 1924, c. 488, § 18. She was justified in giving ‘information in writing’ to the respondent of the fact and grounds of her contention that the provisions of said chapter 488 were being violated. Upon his failure to take steps to enforce the provisions, she might under the statute appeal to the court for relief by mandamus. Ayer v. Commissioners on Height of Buildings in Boston, 242 Mass. 30, 33, 136 N. E. 338;Wood v. Building Commissioner of Boston, 256 Mass. 238, 152 N. E. 63.

[3] The land of the owners lies partly in the zone known as ‘R-65’ and partly in the zone known as ‘R-40,’ but the differences between those two zones do not bear materially on the main question presented for dicision. That main question is whether the setback from the ‘street’ and ‘the street line’ on which a new building ‘fronts,’ required in the construction of new buildings under the zoning act (St. 1924, c. 488), may be computed from Franklin Garden as it has just been described. If Franklin Garden is not ‘street’ within the meaning of that word in paragraphs of sections 12 and 13 of the zoning act, then it is plain that the erection of the buildings in accordance with the permit and plans would constitute a violation of the zoning act, which the respondent ought to take immediate steps to prevent under section 18 of that act.

The zoning act contains no definition of the word ‘street.’ It was said in Commonwealth v. Boston, Barre & Gardner Railroad, 135 Mass. 550, 551, after a review of numerous statutes, ‘that the word ‘street’ is commonly used in the statutes to designate a public way-either a highway or a town way, or a way which has become public by dedication or prescription. * * * It can hardly be supposed that it was intended to include mere private ways, in which the public has no rights except by permission of the owner, and which he may close up at any time.' That states the general principle.

So far as there is any internal evidence in the zoning act as to the meaning intended by the Legislature in using the word ‘street,’ it tends to confirm the general rule. The zoning act in section 1 permits reference to St. 1907, c. 550, being the building law of the city of Boston, for definition of terms. In sections 18, 42(2), 42(4), 45, 56, 58, 65 and 79 of said chapter 550, the word ‘street’ is used in connection with ‘place or private way,’ ‘alleys or open passageways,’ ‘alley or open passageway,’ ‘outer court’ and ‘open court.’ Those words appear to be used in contrast to ‘street’ or ‘streets' and to be intended to comprehend various classes of private ways whether the public has rights in them or not. The words of section 91 that stage doors of theaters shall ‘open directly upon a street, alley, court, or courtway leading to a public thoroughfare’ do not support an opposite view as to the meaning of ‘street.’...