Turner v. Bd. of Appeals of Milton

• Decision Date: 03 February 1940
• Citation: 25 N.E.2d 203,305 Mass. 189
• Parties: TURNER v. BOARD OF APPEALS OF TOWN OF MILTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

305 Mass. 189

25 N.E.2d 203

TURNER

v.BOARD OF APPEALS OF TOWN OF MILTON.

Supreme Judicial Court of Massachusetts, Norfolk.

Feb. 3, 1940.

Proceeding by Mary C. Turner against Board of Appeals of the Town of Milton to set aside a decision of the board revoking an occupancy permit. From final decree annulling the decision of the board, defendant appeals.

Modified and, as modified, affirmed.Appeal from Superior Court, Norfolk County; Gray, Judge.

R. F. Turner and L. Sherman, both of Boston, for petitioner.

L. Bryant, of Boston, and Bussell G. Scott, Jr., of Dedham, for respondent.

RONAN, Justice.

The appellant, the owner of certain premises in Milton, was granted a permit on November 28, 1938, by the deputy building inspector, to make the necessary alterations upon the first floor of her building so that the area formerly occupied by one store would be changed to accommodate two stores. This building permit was granted in accordance with the provisions of chapter 7 of the by-laws of the town, which were adopted in conformity with G.L.(Ter.Ed.) c. 143. It was provided in the first section of said chapter 7 that, in conjunction with certain designated statutes of the General Laws, chapter 7 ‘shall constitute and be known as the Building Code.’ The work was apparently completed upon December 30, 1938, when the deputy building inspector granted an occupancy permit, so called, reciting ‘that building and premises have been regularly inspected, and apparently conform to the statutes and by-laws relating to the construction and occupancy of buildings and land in the Town of Milton.’ This permit was issued in accordance with section 7 of chapter 10 of the by-laws of Milton. The title of this chapter is ‘Zoning’ and the section so far as material provides: ‘It shall be unlawful to use or permit the use of any land, building, or structure or part thereof which is erected or altered, wholly or partly, in its use or construction, or moved, or which has its open spaces in any way reduced, until the Building Inspector shall have certified on the building permit or, in case no permit is required, shall have certified in a certificate of occupancy that the building and premises have been regularly inspected by the Building Inspector and apparently conform to the statutes and by-laws relating to the construction and occupancy of buildings and land in the town of Milton.’ This section also provided that it shall be the duty of the building inspector to enforce this by-law.

One Wood, on December 30, 1938, filed with the board of appeals, an appeal from the action of the deputy building inspector in granting the occupancy permit to the appellant, and sought an annulment of this permit on the alleged ground that the inspector had no authority to issue the permit which, on account of the nonconforming use of the appellant's building, could be granted by the board of appeals only under section 4 of chapter 10 of the zoning by-laws of the town. After notice and public hearing the board of appeals made a decision which, in substance and effect, revoked the permit, and the appellant Turner, purporting to act under G.L.(Ter.Ed.) c. 40, § 30, as inserted by St.1933, c. 269, § 1, and amended by St.1935, c. 388, filed an appeal in the Superior Court to set aside the decision of the board of appeals. The defendants appealed from a final decree of the Superior Court annulling this decision of the board.

The defendants contend that the same persons comprise the board of appeals under the building code and the board of appeals under the zoning laws; that the matter was one of enforcement of the building code; that the board sat as an appellate board under this code and, consequently, no appeal could be taken from its decision to the Superior Court. It is pointed out that under the building code, c. 7, § 1(G)2, any person dissatisfied with the decision of the building inspector ‘on a matter left by this by-law to his approval or discretion’ may appeal to the board of appeal; that the inspector is required by the building code, c. 7, § 1(B)9, to enforce the provisions of the zoning by-laws and that he has no authority under the building code, c. 7, § 1(E)1, to approve any plans for altering a structure unless the plans and intended use are in all respects in conformity with both the building code and the zoning by-laws. It does not, however, follow that in issuing an occupancy permit the inspector was acting under the building code or that the board of appeals was reviewing his action as a board acting under the building code. In the first place, the building code gives a limited right of appeal, and, if anyone, other than the landowner, may appeal, then the appeal must be upon decision of the inspector upon a matter left to his approval or discretion by the building code, c. 7, § 1(G)2. There is no provision in the building code authorizing the issuance of any occupancy permit, and the appeal of Wood to the board was not based upon the building code at all. In substance his grievance was that the occupancy permit, which is provided for by the zoning and not the building by-laws, was improperly issued by the inspector, and that it could be issued by the board of appeals only under the zoning by-laws. Wood's appeal did not pertain to a matter arising under the building code. The attempt of the board of appeals in its decision to incorporate the zoning by-laws by reference into the building by-laws is ineffectual. The purpose of each by-law was separate and independent of that of the other....