Pastan v. Board of Appeals

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

Opinion

This is an appeal from a decree of the Superior Court annulling 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.