|
16 Mass. APP• Ct. 901 16 Mass. App. Ct. 901
<br />988 naertpt opinions.
<br />Itew"t Opinions.
<br />for commissions earned by the defendant) ft
<br />claratory judgment that the board's decision was contrary to the provi- compete. We affirm.
<br />sions of G. L. c. 40A, § 6, upon which the decision was premised. The 1. Although several hundred pages of
<br />parties submitted a statement of agreed facts, and the action came before before the master, as well as the exhibits int
<br />the court on crass motions for summary judgment. After hearing, the have been reproduced in the record appen
<br />judge granted the defendants' motion and declared the boards decision to material. The order of reference provided t
<br />be within its authority•reported, and there is no indication in the
<br />The defendants Daniel C. and Barbara L. Sullivan own a parcel of quently ordered the evidence to be report&
<br />land (locus), with a frontage of eighty feet and an area of 5,600 square Singer. 922 Mass. 262, 265 (1948). "(Ejvi,
<br />t zOn- reports nor is ordered to report is not part o:
<br />Feet, in a section of WeAReet m um ffronntagor of residential25 feet and an use.- The anarea of v. Planning Bd. of Croton, 4 Mass. App. C
<br />• ing by prescribes a minim Roblsiru, ante 576, STT n.l (1983).' Not
<br />20,000
<br />square feet for construction an a tat gr the residential cone. it forth in Miller v. Winshaif, 9 Mats. App. C
<br />1979, the Sullivans applied for end were granted a building permit
<br />authorWng construction of a single -family house on the locus. The plain- fendant may not now claim that a subsidi
<br />tiffs, who own property adjoining the locus, sought review before the master is not supported by the evidence. T
<br />board, which subsequently upheld the grant of the permit. The instant "fad final." Thus under Mass.R.Civ.P.
<br />Superior Court. as in effect prior to the 1982 amendment,
<br />action was thereafter Bled is the nt for
<br />judge rutted upon the report shall thereafter be eonsidt
<br />In granting summery judgauant for the defendants. the j ge
<br />that the board had acted lawfully in approving the building permit 2. The master found that the plaintiff
<br />on in the first an agreement on August 25, 1973, under
<br />because the locus hadth� benefitgrandfather y 19775 C. 808. § 3. That real estate salesman for the plaintiff. The
<br />sentence of c. 40A. § width.
<br />statute provides. in relevant part: "Any increase in area, frontage, prohibiting the defendant after terminatit
<br />of a zoning ordinance or by-law shall not aP- gained from the plaintiff's files and also pr
<br />yard, or depth requirements single and two-family residential use which at the time of competing business for a periodd
<br />ply to to ye
<br />a lot for srecording or endorsement, whichever occurs sooner was not held in cam- ampton. Easthampton.
<br />mon ownership with any adjoining lend. conformed to then existing Holyoke and Westfield. The defendant te:
<br />requirements and had less than the proposed requirement but at least five cents, to the agreement, directly comPe
<br />thousand square feet of area and fifty feet of frontage." SPeciRcally, clue prohibited geographic area.
<br />judge ruled that although the locus was first recorded on aPlan doming The thrust of the defendant's argume
<br />1889, when the locus was held in common ownership withaz evidenced by findings of the master as to the plaintiff's
<br />land, the exemption was applicable to the locus because. owner- "1151(i) it is found that Plaintiff has be
<br />breach of his Agreement. it is found the
<br />recorded deeds, it had beanheld ar theseveraleres al reasons sons enu mere ed in the stantial decrease in Income following ret
<br />ship from all adjoining Defendant although it cannot be found as
<br />extensive memorandum flied "^t1t the judge's order,udg^'ent aifirmed. the loss or decrease is attributable directly
<br />Arthur C. Croce for the plaintiffs. of Weed dr of the Agreement (e.g., did the decrease r
<br />Harry Sarkis Terkanian for Zoning Board of Appeals of the employees or less effort on the partin real estate activity, or a direct comp,
<br />others.
<br />found that Defendant did in fact ears su
<br />• bar
<br />Fnwtve D. rts, It+e. w. Pout. ate Con.
<br />The filing of the transcript by agrta+ene
<br />er: ,report of evidence: trtv court does not change its status in the a
<br />18, 1983. Practice, Ci ufdence, Relevancy end referettce, Sae Glynn V. Clauearer, 9 Mass. A
<br />tract, Covenant against Prt' tion. ly, the ailowance by the Mal judge of the
<br />materiality• Damages. Breach of covenant agel rt transcript to the record on appeal does not enh
<br />The enndant appeals from a judgment confirming a m cunt Co, v. Fins Fed. Parking Corp.. 3 Main Api
<br />which awarded SSO,I)DO in damages (less an offset in an agreed am
<br />
|