Van Arsdale v. Town of Provincetown

• Decision Date: 10 April 1962
• Citation: 344 Mass. 146,181 N.E.2d 597
• Parties: John C. VAN ARSDALE v. TOWN OF PROVINCETOWN et al. Alfred T. MANACHER v. TOWN OF PROVINCETOWN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 597

181 N.E.2d 597

344 Mass. 146

John C. VAN ARSDALE v. TOWN OF PROVINCETOWN et al.

Alfred T. MANACHER v. TOWN OF PROVINCETOWN et al.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued Feb. 7, 1962.

Decided April 10, 1962.

James W. Kelleher, Boston, for petitioners.

S. Osborn Ball, Provincetown, for respondents Ray Martin Wells and others.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, and KIRK, JJ.

WHITTEMORE, Justice.

The appellants John C. Van Arsdale and Alfred T. Manacher, by separate petitions in the Superior Court, sought writs of mandamus to compel the respondent Fernando Gonsalves, as building inspector of the town of Provincetown (the inspector), to revoke a building permit issued to the respondent Ray Martin Wells for construction of two structures on Wells's lot on the southeast, harbor, side of Commercial Street lying between the northeasterly side line of Manacher's property and a ten foot strip of vacant land which runs from Commercial Street to the harbor and abuts Van Arsdale's property along the latter's southwesterly side line. Other respondents are alleged to have been engaged by Wells to construct the buildings.

The principal issue is whether the southerly of the two proposed structures is a dwelling containing four apartments and hence violative of Section II G 2 of the zoning by-law, or, on the contrary, because of a dividing wall, is to be deemed two dwellings, or zoning law units, of two apartments each, and hence a permitted structure. The petitioners also contend that the structure would violate setback restrictions. The judge in the Superior Court found no violation and ordered the petitions dismissed.

1. The applicable use provision of the by-law reads: 'Section II. Residential District Uses. In Residential Districts no building or premises shall be erected, altered or used for any purpose except: * * * Class G Residential District * * * 2. Single or two family dwellings not exceeding three per lot.'

The northerly of the two proposed structures for Wells's lot is designed to accommodate two families in separate apartments. The southerly structure, with its long axis parallel to Commercial Street, is designed for four families in four apartments, two each on either side of a solid eight inch thick masonry wall extending from cellar to roof.

In Section II of the by-law, as we construe it, 'two family dwellings' are separate structures or buildings to be occupied by two families. A building to be occupied by four families would be a four family dwelling. The proposed four apartment structure is one building or zoning law dwelling for the purposes of this section. The achitect's plan so describes it ('South Building') and in common sense that is what it is. Of course, as the respondents contend, for some purposes a building is no less that because it shares a party wall with another building. The zoning by-law recognizes this in 'Section VI. Area Regulations * * * Class R Commercial Districts' in providing under the designation of 'Side Yards' the requirement '5 feet or a fireproof party wall.' But Section II G, by reasonable implication, is specifying separated structures. No apparent purpose of that section is served by the presence or absence of a solid wall in the interior of a building. With or without such a wall the North Building and the South Building each has the same outward appearance, and brings the same number of families under the same roof. The North Building, as the petitioners point out, would be no less what it is for purposes of Section II if the two apartments were separated by a solid vertical wall but if this change were made there would be, on the respondents' construction of Section II, four dwellings on the lot and thus a violation of the by-law. We notice that in the Section II 'Class W Residential District' the permitted uses include: '2. Single or two family dwellings exceeding three per lot; 3. Three or more family dwellings.' This emphasizes for the purposes of Section II the concept of each dwelling as a separate structure.

The respondents object, however, that the provision of the by-law (Section VI) which specifies the depth of front, rear, and side yards does not apply to spaces between buildings on the same lot, so that, without violating that provision, dwellings under Section II could be built with no space between them. Even if that were so, it would not follow that Section II must be construed to contemplate no space between permitted buildings.

If no minimum distance is specified, Section II nevertheless must be reasonably construed. We assume no one would build two houses so close together that access could not be had to the adjacent exterior walls. In any event such a case is not presented, and we need not speculate as to the status of two houses so placed or of houses attached by some overlap of walls at one corner, both being possibilities which have been referred to by the respondents.

We refrain from any construction of this by-law not essential to this case. Its provisions are sketchy at best, and we conclude that amendment, if it has not occurred, is in contemplation. We note, however, that Section VI may conceivably require interior distances between buildings on one lot. That section provides in part: 'Area Regulations The following set forth minimum area and distance requirement shall apply to the altering or erecting of any building on a lot in each of the indicated classes or districts. Where the term 'average' is used, it shall mean the average of the setbacks of the buildings on the lots next thereto on either side, a vacant lot being counted as...