11 Mass. App. Ct. 958

March 2, 1981

The landowner has appealed from a judgment of the Superior Court which annulled an amended decision of the zoning board of appeals of Framingham (rendered in 1980) by which the board purported to grant the landowner a variance from the use provisions of the Framingham zoning by-law which would allow the construction of a five-story, fifty-five unit apartment building on an undeveloped parcel of land containing approximately 140,634 square feet and lying in a single-residence zoning district. The judge found that "[t]he [b]y-law in effect at all relevant times forbade any apartment building in either a single-residence or business district, or, indeed, in any other district in Framingham." On those facts, neither the board nor the judge could properly make the specific finding required by the first paragraph of G. L. c. 40A, Section 10, as appearing in St. 1975, c. 808, Section 3, that "desirable relief may be granted without . . . nullifying or substantially derogating from the intent or purpose of [the] . . . by-law." See Abbott v. Appleton Nursing Home, Inc., 355 Mass. 217 , 221-222 (1969); Cass v. Board of Appeal of Fall River, 2 Mass. App. Ct. 555 , 556-557 (1974); Planning Bd. of Framingham v. Zoning Bd. of Appeals of Framingham, 5 Mass. App. Ct. 789 (1977). Contrast Cavanaugh v. DiFlumera, 9 Mass. App. Ct. 396 , 397-402 (1980). See also Shacka v. Board of Appeals of Chelmsford, 341 Mass. 593 , 595 (1961); Coolidge v. Zoning Bd. of Appeals of Framingham, 343 Mass. 742 , 745-746 (1962). We need not decide whether the judgment could also be upheld for the reasons given by the judge, or for other reasons.

Judgment affirmed.