Pastan v. Board of Appeals

Massachusetts Appeals Court

Pastan v. Board of Appeals

311 N.E.2d 588, 2 Mass. App. Ct. 844, 1974 Mass. App. LEXIS 785

CourtMassachusetts Appeals Court

DecidedMay 30, 1974

StatusPublished

Cited by1 cases

This text of 311 N.E.2d 588 (Pastan v. Board of Appeals) 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

Pastan v. Board of Appeals, 311 N.E.2d 588, 2 Mass. App. Ct. 844, 1974 Mass. App. LEXIS 785 (Mass. Ct. App. 1974).

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Opinion

This is an appeal from a decree of the Superior Court [845]*845annulling a decision of the defendant board of appeals (G. L. c. 40A, § 21, as amended through St. 1972, c. 334) which upheld the refusal of the building inspector of the town of Billerica to issue a permit to the plaintiff to erect an apartment house. Our decision must turn on whether the decision of the Supreme Judicial Court in Hallenborg v. Town Clerk of Billerica, 360 Mass. 513 (1971), invalidated § 5.8 of the zoning by-law of the town (the identical section under which the plaintiff seeks a building permit in the present case). If § 5.8 had not been so invalidated, the decree of the Superior Court in this, case would have been correct. We construe the Hallenborg decision to have invalidated § 5.8, notwithstanding that protective provisions were made for the interveners in that decision, who had undertaken substantial obligations in reliance on permits obtained by them under § 5.8. The plaintiff does not show that he is entitled to the benefits extended by those provisions. The decree of the Superior Court is reversed, and a decree is to enter declaring that the decision of the board of appeals was not in excess of its authority and is affirmed.

Edward J. Owens, Town Counsel, for the Board of Appeals of Billerica. Gerald E. Katz for the plaintiff.

So ordered.

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This is an appeal from a decree of the Superior Court [845]*845annulling a decision of the defendant board of appeals (G. L. c. 40A, § 21, as amended through St. 1972, c. 334) which upheld the refusal of the building inspector of the town of Billerica to issue a permit to the plaintiff to erect an apartment house. Our decision must turn on whether the decision of the Supreme Judicial Court in Hallenborg v. Town Clerk of Billerica, 360 Mass. 513 (1971), invalidated § 5.8 of the zoning by-law of the town (the identical section under which the plaintiff seeks a building permit in the present case). If § 5.8 had not been so invalidated, the decree of the Superior Court in this, case would have been correct. We construe the Hallenborg decision to have invalidated § 5.8, notwithstanding that protective provisions were made for the interveners in that decision, who had undertaken substantial obligations in reliance on permits obtained by them under § 5.8. The plaintiff does not show that he is entitled to the benefits extended by those provisions. The decree of the Superior Court is reversed, and a decree is to enter declaring that the decision of the board of appeals was not in excess of its authority and is affirmed.

Edward J. Owens, Town Counsel, for the Board of Appeals of Billerica. Gerald E. Katz for the plaintiff.

So ordered.

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Bluebook (online)

311 N.E.2d 588, 2 Mass. App. Ct. 844, 1974 Mass. App. LEXIS 785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pastan-v-board-of-appeals-massappct-1974.

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