Alpert v. Board of Appeal

Massachusetts Appeals Court

Alpert v. Board of Appeal

376 N.E.2d 1265, 6 Mass. App. Ct. 888, 1978 Mass. App. LEXIS 737

CourtMassachusetts Appeals Court

DecidedJune 13, 1978

StatusPublished

Cited by2 cases

This text of 376 N.E.2d 1265 (Alpert v. Board of Appeal) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Alpert v. Board of Appeal, 376 N.E.2d 1265, 6 Mass. App. Ct. 888, 1978 Mass. App. LEXIS 737 (Mass. Ct. App. 1978).

Pincite

Opinion

The plaintiffs brought this action under G. L. c. 40A, § 21, as amended through St. 1974, c. 78, § 1, to annul the decision of the defendant board. Prior to trial the parties stipulated as to the issues before the Superior Court. The judgment must be reversed. The [889]*889fact that the judge made detailed findings does not rectify a failure by the board to find each of the requirements for a variance and to set forth clearly the reason or reasons for its decision. Barnhart v. Board of Appeals of Scituate, 343 Mass. 455, 456-457 (1962). Cass v. Board of Appeal of Fall River, 2 Mass. App. Ct. 555, 558 n.5 (1974). See Planning Bd. of Springfield v. Board of Appeals of Springfield, 355 Mass. 460, 462 (1969). The board’s findings are "a mere repetition of the statutory words,” Brackett v. Board of Appeal of the Bldg. Dept. of Boston, 311 Mass. 52, 54 (1942), and are therefore inadequate to support the grant of a variance. Wolfson v. Sun Oil Co. 357 Mass. 87, 89 (1970). Compare Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 292-293 (1972). Neither the board’s findings nor those of the judge establish the existence of substantial hardship "owing to conditions especially affecting [the parcel in question] but not affecting generally the zoning district in which it is located.” G. L. c. 40A, § 15, as amended through St. 1958, c. 381. Compare Barnhart v. Board of Appeals of Scituate, supra. The judgment is reversed, and a new judgment is to be entered that the decision of the board was in excess of its authority and is annulled.

The case was submitted on briefs. Michael J. Monahan for the plaintiffs. Marc Redlich, for Joel Greenstein, trustee.

So ordered.

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The plaintiffs brought this action under G. L. c. 40A, § 21, as amended through St. 1974, c. 78, § 1, to annul the decision of the defendant board. Prior to trial the parties stipulated as to the issues before the Superior Court. The judgment must be reversed. The [889]*889fact that the judge made detailed findings does not rectify a failure by the board to find each of the requirements for a variance and to set forth clearly the reason or reasons for its decision. Barnhart v. Board of Appeals of Scituate, 343 Mass. 455, 456-457 (1962). Cass v. Board of Appeal of Fall River, 2 Mass. App. Ct. 555, 558 n.5 (1974). See Planning Bd. of Springfield v. Board of Appeals of Springfield, 355 Mass. 460, 462 (1969). The board’s findings are "a mere repetition of the statutory words,” Brackett v. Board of Appeal of the Bldg. Dept. of Boston, 311 Mass. 52, 54 (1942), and are therefore inadequate to support the grant of a variance. Wolfson v. Sun Oil Co. 357 Mass. 87, 89 (1970). Compare Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 292-293 (1972). Neither the board’s findings nor those of the judge establish the existence of substantial hardship "owing to conditions especially affecting [the parcel in question] but not affecting generally the zoning district in which it is located.” G. L. c. 40A, § 15, as amended through St. 1958, c. 381. Compare Barnhart v. Board of Appeals of Scituate, supra. The judgment is reversed, and a new judgment is to be entered that the decision of the board was in excess of its authority and is annulled.

The case was submitted on briefs. Michael J. Monahan for the plaintiffs. Marc Redlich, for Joel Greenstein, trustee.

So ordered.

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Bluebook (online)

376 N.E.2d 1265, 6 Mass. App. Ct. 888, 1978 Mass. App. LEXIS 737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alpert-v-board-of-appeal-massappct-1978.

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