Miller v. Board of Appeals

This is an appeal by the plaintiffs from a summary judgment by which the Superior Court affirmed a decision of the board of appeals granting the defendant Marini a special permit for the construction of an apartment house on the locus. The pleadings and affidavits establish that on January 14,1976, the planning board endorsed a perimeter plan of the locus under G. L. c. 41, § 81P (“approval not required”), that at that time the locus was zoned in a “general residence” district, in which apartment houses were a specially permitted use, and that since that time the locus has been rezoned as “single residence” district, in which apartment buildings are not a permitted use. The plaintiffs’ sole contention is that the second paragraph of G. L. c. 40A, § 7A (as in effect prior to St. 1975, c. 808, § 3; see now G. L. c. 40A, § 6, sixth par., as appearing in the said § 3), gives its three-year protection only to uses which were permitted as of right before a zoning change and not to those which were subject to a special permit. That contention finds no support in the language of § 7A, second par. (“[T]he use of the land shown on such plan shall be governed by the applicable provisions of the zoning ordinance or bylaw in effect at the time of the submission of such plan...”). The sentence in Bellows Farms, Inc. v. Building Inspector of Acton, 364 Mass. 253, '254 (1973), upon which the plaintiffs rely (“At all times prior to March, 1971, the by-law expressly permitted land in such a district to be used, as a matter of right and not merely by special permit, for the purpose of apartments ...” [emphasis supplied]) read in context is merely a factual recitation of the content of the by-law before its amendment and not a suggestion that the uses protected against amendment by the second paragraph are confined to those which had been previously permitted as of right. Judgment affirmed.