Home BOARD OF SELECTMEN OF CHARLTON vs. PAUL H. GIRARD.

359 Mass. 755

May 6, 1971

The defendant appeals from a final decree in the Superior Court enjoining and restraining him from operating his trailer coach park with more than six trailers at any one time. In 1961, pursuant to G. L. c. 140, Sections 32B and 32F, the defendant was granted an unrestricted permit to operate a trailer coach park by the plaintiff, which is also the licensing board for the town of Charlton. Under Section 32B, such licenses expire yearly, and subsequent licenses issued to the defendant in 1962, 1963 and 1964 limited his use of the land to six trailers. In 1964, the town duly adopted a zoning by-law prohibiting trailer coach parks with the exception of "existing trailer parks . . . with their present allowed number of trailers." Since that by-law has gone into effect the defendant, who previous to its passage had no more than six trailers on his property, has operated the park with more than six. The trial judge was clearly correct in ruling that at the time the by-law was passed the defendant had a nonconforming use to the extent of only six trailers. There is no substance to the defendant's contention that the limited permits of 1962 through 1964 were invalid because c. 140, Section 32B, does not provide that the number of permissible trailers may be limited in the license. See Goodwin v. Department of Pub. Util. 351 Mass. 25 , 26-27; Southern Pac. Co. v. Olympian Dredging Co. 260 U.S. 205, 208. Each successive permit replaced the right granted by its predecessor to the extent that it differed from it in terms. The defendant cannot rely on the unrestricted 1961 permit, which expired by its terms on December 31, 1961, as vesting the right in him after passage of the by-law in 1964 to operate his trailer coach park with more than six trailers. Selectmen of Wrentham v. Monson, 355 Mass. 715 , relied on by the defendant, is not applicable. There we held that a valid nonconforming use was not necessarily destroyed by failure to comply with local or State licensing provisions. Here the issue is rather the extent of the defendant's valid nonconforming use in 1964, not the effect on it of any noncompliance with licensing provisions.

Decree affirmed.

Home RICCIARDI & SONS CONSTRUCTION, INC. vs. OMAN REALTY ASSOCIATES TRUST.

359 Mass. 755

May 10, 1971

This is an action on a judgment in which there was a finding for the plaintiff. The plaintiff's original action was commenced in the Municipal Court of the City of Boston by trustee process, with an ad damnum of $7,500. The writ in the earlier case stated that the action was for "money due under a contract in writing." The earlier declaration recited a debt "for work and materials . . . according to the account hereto annexed." The plaintiff filed no bond. See G. L. c. 246, Section 1, as amended through St. 1961, c. 158. The trial judge denied the defendant's motion to dismiss for alleged noncompliance with c. 246, Section 1, with the notation "Heard and upon facts now apparent on record denied." No further specification of facts or reasons appears in the original papers in the earlier case. The defendant now contends (1) that the former judgment is void because no bond was filed and (2) that under c. 246, Section 1, the trial court had no jurisdiction. The Appellate Division correctly ruled that, in the circumstances disclosed in the earlier case and on the basis of the writ, no bond was required. In the earlier case there was no attempt to review by report to the Appellate Division the denial of the motion to dismiss. The declaration (despite what was said in Buono v. Nardella, 344 Mass. 257 , 258-259) could have been amended to make the

Page 756

declaration conform with the writ, so far as now appears. See Tennessee Plastics, Inc. v. New England Elec. Heating Co. Inc. 345 Mass. 575 , 577-578.

Order dismissing report affirmed.