BUILDING INSPECTOR OF FALMOUTH vs. NORMAN GINGRASS & another.

WHITTEMORE, J. This as an appeal from a final decree of the Superior Court which enjoined the defendants from using, for the storage of a seaplane, a garage being constructed on their residential property abutting Oyster Pond in Falmouth. The findings show inter alia that the garage was being built under a permit from the building commissioner which authorized a "Dwelling -- 41' x 36'" and "Garage & storage -- 41' x 31'"; that the defendants intended to

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use the large garage for two automobiles and the plane; that the plane was intended for private use; and that the registration which had been issued to the defendant Norman Gingrass by the Massachusetts aeronautics commission authorized basing the plane on Oyster Pond. It also appears that the defendants' land is in a district classified in the zoning by-law for single residences, that it was acquired and the garage was erected in expectation of using the plane on Oyster Pond, and that the plane was moved from the pond into the garage on two rails with the use of a dolly. The judge ruled that the use of the garage to store the plane violated the zoning by-law. There was no error.

1. The storage of a seaplane on a residential lot was not permitted as an accessory use under the by-law. The by-law defined "Accessory Use or Building" to mean "A use of land or a building customarily incident to and located on the same lot with another use of land or a building." For our purposes, at its broadest, the by-law authorized in the single residence district, with a single residence, uses accessory thereto including a garage for two cars or up to four cars under permit from the selectmen.

The authorization of a garage did not permit the housing of a plane. A garage is, primarily, at least, a building for the storing of motor vehicles. See Riverbank Improvement Co. v. Bancroft, 209 Mass. 217, 222. An airplane is not a motor vehicle under G. L. c. 231, Section 85A; this term, in common and statutory usage, is identified with surface vehicles. Rich v. Finley, 325 Mass. 99, 107-108. The by-law uses the word "garage" to describe a storage place for "cars." [Note 1] Such expansibility if any as there may be in the concept expressed by the word as used in the by-law does not, we think, include a plane. The large size of the garage authorized by the permit and the reference in the permit to "storage" do not increase the defendants' rights.

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There is no implication in the by-law that the storage of a plane will be permitted as an accessory use in the single residence district. See Needham v. Winslow Nurseries, Inc. 330 Mass. 95, 101; Pratt v. Building Inspector of Gloucester, 330 Mass. 344, 346. Mioduszewski v. Saugus, 337 Mass. 140, 143-144. There was no finding that any planes were customarily kept on residential lots in Falmouth or in Massachusetts. The findings as to increased use of planes do not furnish any basis for a conclusion that a hangar is, impliedly, an accessory building. That the lot abuts water is immaterial in this connection. The relevant findings are: "The increase in this Commonwealth of the number of planes privately owned and not used for the purpose of scheduled air flights, is evidenced by the following statistics: In the year 1915, 1; 1916, 6; 1939, 456; 1945, 685; 1955, 1,584; in 1957, 1,573, of which 200 are seaplanes. As of the present time there are 95 private planes based in Barnstable County."

2. Failure to provide for hangars or to allow storage of planes in residential districts is not unreasonable classification and no constitutional question is presented. The by-law permits in districts classified for agriculture, business, light industry and heavy industry the use of land for "Airports and landing strips and buildings or structures necessary thereto." Even when maintenance of private airplanes has become a common and usual occurrence in Massachusetts it will by no means necessarily follow that reasonable classification will require that each owner be allowed to keep his plane on his own land. Perhaps the time will come when there will be force in the contention that it is unreasonable to bar an owner whose residential lot, ample in size, adjoins a landing field or water surface, which the owner may lawfully use for ascent or descent, from storing his plane on his own property. We intend no suggestion. The well known properties of airplanes, the concomitants of their use, and the uncertainties still existing as to the effect on the community of the general use of private planes, now in its early stages, amply support the restrictions which this

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by-law imposes. That these defendants because of the location of their land and the permit from the aeronautics commission could use their land for storage with less risk of disturbance or hurt to others, and indeed slight if any disturbance beyond that involved in basing the plane on the pond, does not as of now, in any event, require that there be in the by-law a special classification of such land and other land so located. The classification by the by-law was a reasonable exercise of zoning power. Not every special case can be provided for. See Euclid v. Ambler Realty Co. 272 U.S. 365, 395; Inspector of Bldgs. of Lowell v. Stoklosa, 250 Mass. 52, 60-61; Spector v. Building Inspector of Milton, 250 Mass. 63, 70-71; Wilbur v. Newton, 302 Mass. 38, 42-43; Building Commr. of Medford v. C. & H. Co. 319 Mass. 273, 279; Seekonk v. John J. McHale & Sons, Inc. 325 Mass. 271, 274; Lexington v. Simeone, 334 Mass. 127, 131. Compare Nectow v. Cambridge, 277 U.S. 183, 188; Pittsfield v. Oleksak, 313 Mass. 553, 556; 122 Main St. Corp. v. Brockton, 323 Mass. 646, 651; Barney & Carey Co. v. Milton, 324 Mass. 440, 449; Caputo v. Board of Appeals of Somerville, 331 Mass. 547, 549. The statute, G. L. c. 40A, Section 15, and the by-law make provision for variances where literal enforcement involves hardship.

3. We have considered all the points made by the defendants. The entry must be

Decree affirmed.