Tahanto Associates, Inc. v. Board of Appeals

190 N.E.2d 87, 346 Mass. 762

• Court: Massachusetts Supreme Judicial Court
• Decided: May 2, 1963
• Status: Published

Opinion

Decree affirmed. This is a bill in equity under G. L. c. 40A, § 21, as amended, by way of an appeal from a decision of the board of appeals of the town of Bourne granting a permit to establish certain “marine use areas.” By order of a judge in the Superior Court a final decree was entered that the decision was in excess of the authority of the board and should be annulled. The defendant board and the defendant shore and harbor committee appealed. The judge in his findings, rulings, and order for decree ruled that (1) the zoning by-law pursuant to which the board purported to act was not within the zoning enabling act, G. L. e. 40A, §§ 2, 4, both as amended; and (2) the decision of the board was not the grant of a special permit as purportedly authorized by the by-law, but was an attempt to rezone. The defendant board rightly concedes that the decision of the board does not set forth reasons for the decision as required by G. L. c. 40A, § 18, as amended, and should be annulled. It contends, however, that the amendment of the zoning by-law should be declared to be valid. We do not make such a declaration. This is not a bill for declaratory relief under G. L. e. 231A.