Town of Maynard v. Tomyl

Decision Date30 April 1964
Citation347 Mass. 397,198 N.E.2d 291
PartiesTOWN OF MAYNARD v. Benjamin S. TOMYL et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Julian J. D'Agostine, West Acton, for defendants.

Paul A. Carbone, Town Counsel, for plaintiff.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, and REARDON, Jj.

WHITTEMORE, Justice.

The defendants have appealed from a final decree in the Superior Court ordering them to remove all construction that does not comply with the terms of a decision of the board of appeals acting under the zoning by-law of the town of Maynard. There is also a bill of exceptions. The case was presented on a statement of agreed facts. The judge ruled in substance that the defendants, in not conforming to the decision of the board, have enlarged a nonconforming building contrary to law. There is no error.

The zoning by-law was adopted in 1950. The defendants then 'owned and occupied the property at 202A and B Main Street' in a general residence district. The two buildings so numbered were on a lot of about 8,000 square feet. Number 202A was a single family residence. Number 202B, in the rear, was a single story structure, twelve by twenty-nine feet, and was 'used as a dwelling.'

In April, 1961, the defendants obtained from the selectmen a building permit to add a ground floor room fifteen feet square and an entire second story to No. 202B. The board of appeals promptly protested, the selectmen acted to revoke the permit, the defendants applied to the board for authority to make the alterations, and the board granted the application in part but excluded construction of the second story. The selectmen issued another permit to build 'in accordance with the Board of Appeal's decision * * *.' The defendants, however, have built the second story.

The board acted under § 7-1 of the by-law that provides that 'no non-conforming building * * * shall be structurally or substantially altered * * * or enlarged * * * unless, upon application to the Board of Appeals it can be shown that such change, if carried out, would be less detrimental or objectionable to the neighborhood, or, if not carried out would work unnecessary hardship.' See G.L. c. 40A, §§ 4 and 5. The board's limited permission was 'granted in order that a hardship would not be created due to the lack of bath and kitchen facilities.'

The zoning by-law requires that in a general residence district there be a lot of at least 7,000 square feet for each separate dwelling. 1 Conforming lots are not available for the defendants' two dwellings. There is nothing in the contention that the authorization of 'two family dwellings' authorizes two single dwellings on the same lot. See Van Arsdale v. Provincetown, 344 Mass. 146, 147, 181 N.E.2d 597. The lot size requirement is determinative.

Nor can the defendants succeed in their contention that the smaller house is a permitted accessory building. The agreed facts establish No. 202B as a 'dwelling' in 1950 and the sketches attached to the defendants' applications show a dwelling with adequate facilities 2 for occupancy apart from any other structure. It is inconsequential whether at times some members of a single family group may occupy both dwellings. Such related use of a 'dwelling' is not an accessory use within the contemplation of the by-law. 3 We need not pause to consider the status of a guest house. Even if No. 202B could have been ruled an accessory structure prior to the proposed changes, which we do not suggest, no right is shown to make such a structure into a nonconforming dwelling.

The defendants' reliance on St.1962, c. 340, which added a proviso to G.L. c. 40A, § 5, is based on a misreading of the language of the proviso. It is only 'non-conforming buildings * * * used primarily for agriculture, horticulture or floriculture' that are within its terms. 4

General Laws c. 40A, § 5A, as amended through St.1961, c. 435, § 1, also relied on by the defendants, refers to building on certain nonconforming lots, not to alterations of nonconforming buildings or alterations to create nonconformity.

The defendants...

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5 cases
  • Giovannucci v. Board of Appeals of Plainville
    • United States
    • Appeals Court of Massachusetts
    • April 12, 1976
    ...Superintendent of Bldgs. and Inspector of Bldgs. of Cambridge, 328 Mass. 155, 159--160, 102 N.E.2d 423 (1951); Maynard v. Tomyl, 347 Mass. 397, 399, 198 N.E.2d 291 (1964); Vassalotti v. Board of Appeals of Sudbury, 348 Mass. 658, 661, 204 N.E.2d 924 (1965); Smigliani v. Board of Appeals of ......
  • Martin v. Rent Control Bd. of Cambridge
    • United States
    • Appeals Court of Massachusetts
    • April 30, 1985
    ...term can be found in Ivarson v. Mulvey, 179 Mass. 141, 142-143, 60 N.E. 477 (1901) (restriction in a deed), and Maynard v. Tomyl, 347 Mass. 397, 399, 198 N.E.2d 291 (1964) (zoning by-law). The interpretation we adopt also promotes the objectives of rent control. An act such as this seeks to......
  • Davidson v. Bd. of Zoning Adjustment
    • United States
    • D.C. Court of Appeals
    • December 15, 1992
    ...to duplicate the functions of the main building rather than in fact serving as incidental to those uses. See Maynard v. Tomyl, 347 Mass. 397, 198 N.E.2d 291, 292-93 (1964) (second house is not accessory use even though smaller than main residence, where it is "a dwelling with adequate facil......
  • Sulmonetti v. Hayes
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 30, 1964
  • Request a trial to view additional results

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