This is an appeal under G.L. c. 40A, §17 from a decision of the Defendant, Board of Appeals of the Town of Dedham ("Board") denying Plaintiff's application for a special permit to construct residential multi-dwelling units on a parcel of land containing approximately 21.79 acres of which 10.61 are located in the General Residence District and 11.18 are in the Limited Manufacturing District. The land is located off Sprague Street in Dedham ("Town").
In reaching its decision, the Board did not consider the merits of the proposal, but denied it on the basis that under the zoning by-law, it did not have the authority to grant the permit.
This matter came on to be argued by counsel, and after considering such arguments and reviewing the memoranda and pleadings filed with the Court, I rule that there is no genuine issue of material fact and that therefore the case is ripe for summary judgment pursuant to Rule 56, Mass. R. Civ. P. Community National Bank v. Dawes, 369 Mass. 550 (1976).
I find the following facts to be pertinent:
1. The Plaintiff's land is, as stated, a tract of about 21.79 acres of which 10.61 are located in the General Residential District and 11.18 are in the Limited Industrial District.
2. By vote of a town meeting in Ju1y 1986, the Town amended its Zoning By-law by adding thereto sections II-2-B-10 and II-7-C-
4. These sections specifically authorized the Board to permit the construction of residential multi-dwelling units, subject to certain conditions, in Single Residence A and Single Residence B Districts and also in any Limited Manufacturing District. The amendments, by reference, also permitted the Board to authorize such construction in the General Residence District inasmuch as the By-law clearly states that in a General Residence District any use permissible on appeal in Single Residence A or B Districts is permissible on appeal in a General Residence District.. Section II-3-B-1 - By-law.
3. As amended section II-7-C-4 (Limited Manufacturing District) contains the following provision:
. . . In the event that a Parcel includes land in more than one district, then not less than fifty percent (50%) of the Parcel shall be in the Limited Manufacturing District. In the event that a Parcel includes land in more than one district, than the uses permitted herein must be permitted as a matter of right or on Appeal in all applicable districts.
4. On March 23, 1987, the Planning Board approved a plan filed under G.L. c. 81P. Said plan included the land in question. This approval had the effect of freezing the use, by right or permit in effect at the time of the endorsement, for a period of three years thereafter. G.L. c. 40A, §6.
5. On April 13, 1987, the Town repealed sections II-2-13-10 and II-7-C-4 of the By-law.
6. Thereafter, on May 18, 1988, well within the three year period, the Plaintiff filed his application to construct multi-dwelling units.
It is clear from the plain language of the By-law that the Board had the authority to authorize the Plaintiff's construction of multi-dwelling units.
Accordingly, the Plaintiff's motion for summary judgment is allowed. The decision of the Board, dated September 16, 1988, is annulled. This matter is remanded to the Board for further consideration and a decision not inconsistent herewith.
By the Court
DAVID BOVARNICK vs. JOHN F. KEARNEY, JOSEPH J. GRELLA, ROBERT DEVIRGILIO, DAVID A. DUNCAN, THOMAS J. McNEELY and ROBERT D. ALDOUS, as they are members of the BOARD OF APPEALS OF THE TOWN OF DEDHAM.