Summary
approving order granting zoning variance issued on plaintiffs' motions for summary judgment
Summary of this case from Framingham Clinic, Inc. v. Zoning Board of AppealsOpinion
March 3, 1978.
H. Sage Walcott, City Solicitor, for the defendant.
F. Anthony Mooney ( Kenneth Berman with him) for the plaintiff.
Charles Francis Mahoney Maria J. Krokidas, for Gloucester Civic and Garden Council, Inc., amicus curiae, submitted a brief.
Following our decision in Cape Ann Land Dev. Corp. v. Gloucester, 371 Mass. 19 (1976), the trial judge, after a hearing, granted the plaintiff's motion for summary judgment, thereby annulling the city council's denial of the special permit, 371 Mass. at 24 n. 7, and ordered the council to issue the permit within ten days. The defendant appealed. The special permit was denied by the city council for five specific reasons. Three of the reasons concerned traffic congestion. The other two reasons involved the cost of street improvement and the reduction of the vitality of downtown Gloucester. None of these reasons nor all of them collectively were legally valid reasons for the denial of the permit under our decision in Cape Ann Land Dev. Corp. v. Gloucester, supra at 24. In these particular circumstances it was proper for the judge to order the issuance of the permit. See Lapenas v. Zoning Bd. of Appeals of Brockton, 352 Mass. 530, 533-534 (1967); Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 559-560 (1954).
Finally, the city council argues that it should have the opportunity to reconsider Cape Ann's application in light of our earlier opinion. However, when the city council considered the application it held a comprehensive hearing and issued a decision denying the permit on specified grounds. No argument is made that new data have become available or that additional grounds for denying the permit exist. Further consideration of the application is therefore not necessary.
Judgment affirmed.