Town of Brookline v. Co-Ray Realty Co.
| Decision Date | 03 July 1950 |
| Citation | 93 N.E.2d 581,326 Mass. 206 |
| Parties | TOWN OF BROOKLINE v. CO-RAY REALTY CO., Inc., et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued May 3, 4 1950.
D. G. Rollins Brookline, A. J. Santry, Jr., Boston, for plaintiff.
C. B. Rugg, Boston H. S. Streeter, Boston, for Co-Ray Realty Co., Inc.
M. Michelson Boston, D. S. Miller, Boston, for defendants Miller.
J. W. Kelleher, Boston, for defendant O'Keefe Bldg. Com'r of Boston.
Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.
This is a bill in equity to enjoin violation of the zoning by-law of Brookline. The defendant Co-Ray Realty Company, Inc. (herein called Co-Ray), is the owner of adjacent parcels of vacant land containing twenty thousand eight hundred twenty-four square feet at the corner of Corey Road and Evans Road and situated partly in Boston and partly in Brookline. The area in Boston (referred to herein as the Boston land) is fifteen thousand six hundred ninety-eight square feet. The area in Brookline (referred to herein as the Brookline land) is five thousand one hundred twenty-six square feet. The Boston land is located in a district designated by the Boston zoning regulations as a 'general residence district, R-40' and also as 'a forty-foot district.' The Brookline land is located in a district designated by the Brookline zoning by-law as a 'single residence district (Number 7) D.' On the Boston land Co-Ray proposes to build a twenty-eight family apartment house, and to use part of the Brookline land as a rear yard and service entrance. The nearest houses in Boston and in Brookline are single family houses. The bill also seeks the revocation, with respect to the Brookline land, of a building permit allegedly issued to Co-Ray by the defendant building commissioner of Boston.
Upon motion of Co-Ray, David S. Miller and Dora Miller, owners of a single family house in Boston on the opposite side of Evans Road from the Co-Ray property and in the same 'general residence district, R-40,' were made parties defendant. The amended answer of Co-Ray contains, in the nature of a counterclaim, an application for declaratory relief, seeking binding declarations as to the effect of certain provisions of the Brookline zoning by-law and of the Boston zoning regulations. The Millers demurred to the amended answer, and filed both a motion to dismiss and an answer praying in substance that the counterclaim contained in the amended answer be dismissed as to them and, in the alternative, that the proposed erection of the apartment house be declared in violation of the Boston zoning regulations and building code. The demurrer was overruled by a judge of the Superior Court, and the Millers appealed.
The case and the motion to dismiss were heard by another judge of the Superior Court chiefly, and so far as now material, upon agreed facts. The judge found the facts to be as agreed.
On the same date the first judge reserved and reported the questions of law arising out of the interlocutory decree overruling the demurrer, and the second judge, without making any decision, purporting to act under G.L. (Ter.Ed.) c. 214, § 31, reserved and reported the case and all questions of law on the matters heard by him, 'such decree to be entered as justice and equity may require.' No argument has been made that the action of either judge is not effective, and we treat the case as here in all respects intended.
Corey Road runs north and south. Evans Road runs east and west. The Co-Ray property is at the southeasterly corner. The proposed structure is L-shaped and consists of four sections of apartments, each action having its own front and rear entrances. Two sections run north and south, parallel to Corey Road, and two run east and west, parallel to Evans Road. Two front entrances will face west toward Corey Road, and two will face north toward Evans Road. Each front entrance will have a different Boston street number. The eastern wall of the building will be at or close to the Boston-Brookline boundary line. There will be left a space of at least twenty-two feet between that wall and the eastern line of the property.
This space is to be the rear yard required by the Boston zoning regulations, which provide: 'In a forty foot district: * * * Rear Yards: There shall be behind every building other than an accessory building a rear yard extending across the entire width of the lot and having a minimum depth of twenty feet' Section 12. St.1924, c. 488, § 12. Rear Yard is defined: 'A space on the same lot with a building, between the extreme rear line of said building and the rear line of the lot and open and unoccupied except by an unenclosed porch not exceeding sixty square feet in area' Section 1. St.1941, c. 373, § 1.
The space on the southerly side of the lot would be smaller than is prescribed in the regulations for a rear yard, the southern wall being ten feet from the Boston-Brookline boundary line, and the lot of the adjoining owner eight feet south of that boundary line, making only eighteen feet between the structure and the lot line.
A concrete walk three feet in width is to be built around the structure. About one hundred feet of it, that part east of the building, would be entirely on the Brookline land, and over two other short walks would give access to the boiler room entrance and to one service entrance from Evans Road in Brookline. Of four rear entrances, three are to be service entrances and one a boiler room entrance. The boiler room entrance and one service entrance, both on the east side of the building, would open onto the Brookline land, and a person leaving by either entrance would be on the Brookline land after taking a step or two. That service entrance would give rear access directly to eleven apartments and indirectly by way of the basement to the boiler room and eleven more apartments. The latter eleven apartments are to have a separate service entrance opening onto the Boston land. These twenty-two apartments could be reached also through the boiler room entrance. Except for these walks, which are to aid in the use of the service and boiler room entrances, the land east of the building is intended to be used only for a lawn with shrubs, trees, and flowers 'at the boundary of the lot line.'
Actual construction of the apartment house was commenced on August 17, 1949, but was suspended on September 22, 1949, on the filing of the bill. This work consisted of excavation and the building of foundation forms. Through error a corner of the excavation and foundation forms projects eighteen inches onto the Brookline land. When the permit was issued, part of two proposed areaways and the proposed underground fuel tanks were to be located on the Brookline land. In the court below the town and Co-Ray stipulated that no parts of the building, tanks, or areaways are to be located on the Brookline land.
As between the town and Co-Ray, the main issue is whether the use of the Brookline land as a rear yard and service entrance for an apartment house on the Boston land violates the Brookline zoning...
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