in determining whether landowner had unconditional right to obtain permit for single-family home prior to amendment of by-law, where permit fee “is not required at any set time ... the time when [landowner] actually paid the fee is a minor detail that is irrelevant to determining when her ‘unconditional right’ to the building permit arose”
How later courts described this case
- in determining whether landowner had unconditional right to obtain permit for single-family home prior to amendment of by-law, where permit fee “is not required at any set time ... the time when [landowner] actually paid the fee is a minor detail that is irrelevant to determining when her ‘unconditional right’ to the building permit arose”
- applicant "acquired no rights simply by filing the permit application"
Written by the judges who cited it.
The opinion
Brown, J.
(dissenting). I think the decision of the zoning board of appeals of Brewster (board) was correct, and the Land Court judge erred in annulling its decision. A review of the entire case demonstrates Owocki’s entitlement to a permit.
*253 From the outset of this case, the town building commissioner (commissioner) took the position that the deficiencies related to the structures “can be readily and quickly” satisfied. In appealing from the September 29, 2000, denial of the original application, the only issue before the board, the Superior Court, and this court revolved around the soil type. See Albahari v. Board of Appeals of Brewster, 61 Mass. App. Ct. 1104 (2004). There is no suggestion that the commissioner or the board rested on the deficiencies in the foundation plans, alone, to deny the building permit. Indeed, as the majority notes, even in this appeal, neither party has provided us with the pertinent provision of the Code of Massachusetts Regulations on which the commissioner relied in concluding there were deficiencies. The board concluded that notwithstanding the noted deficiencies, a building permit should have issued before the first publication of the notice. In these circumstances, I do not believe it was for this court to substitute its judgment for “the board’s evaluation of the seriousness of the problem.” Titcomb v. Board of Appeals of Sandwich, 64 Mass. App. Ct. 725, 732 (2005), quoting from Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 (1973).
I am of opinion that the right to a permit vested at the time the commissioner improperly denied Owocki’s application. It is not difficult to discern that this is merely another example of delay and obstruction.