Home JOSEPH L. PORESKY vs. PROBATE COURT.

348 Mass. 788

February 8, 1965

The single justice entered an interlocutory decree sustaining a demurrer to the bill which complains about various seemingly unrelated occurrences in the Probate Court for Worcester County. From that decree and a final decree dismissing the bill of complaint the plaintiff appealed. There was no error. The bill does not state concisely and with substantial certainty the substantive facts necessary to constitute a cause of action. It also would appear that the plaintiff's remedy, if any, was by appeal under G. L. c. 215, Section 9 (as amended through St. 1947, c. 360), and not by an independent bill in equity.

Decrees affirmed.

Home L. LINDER LOMBARD vs. BOARD OF APPEAL OF WELLESLEY.

348 Mass. 788

February 8, 1965

Mrs. Lombard built her house and a narrow one car garage in 1937 when automobiles were smaller than today and before certain zoning restrictions became applicable. To enlarge the garage sufficiently to accommodate reasonably a single modern vehicle of

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domestic manufacture, she sought a permit (allowable under Section XIX of the town zoning by-law) to widen the garage in a manner which would encroach only eighteen inches upon the twenty foot side yard area now required by the zoning by-law. Only one member of the board of appeal voted to deny her application. Unanimous approval was required. See G. L. c. 40A, Section 19, as amended through St. 1955, c. 349. Upon appeal under G. L. c. 40A, Section 21, as amended through St. 1960, c. 365, a judge of the Superior Court made careful subsidiary findings. He correctly concluded that, in the circumstances, the denial of this trivial exception was arbitrary and capricious. Mahoney v. Board of Appeals of Winchester, 344 Mass. 598 , 600-601. See Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 560, where it was recognized that an exception to the general rule there stated might exist where the decision of a board of appeal "is unreasonable, whimsical, capricious, or arbitrary and so illegal."

Final decree affirmed.