
    Grafton
    No. 78-251
    Mary Ann Mastro & a. v. City of Lebanon & a.
    
    January 31, 1979
    
      
      Gardner & Clauson, of Hanover (Laurence F. Gardner orally), for the plaintiff.
    
      Decato & Cirone, of Lebanon (R. Peter Decato orally), for the city of Lebanon.
    
      Upton, Sanders & Smith, of Concord {Richard F. Upton orally), for the intervenor, R. Bill Purcell.
   Memorandum Opinion

The intervenor, R. Bill Purcell, applied to the Lebanon Planning Board for site-plan approval for the construction of thirty-four luxury apartment units in a zone where such construction is permitted. Under the Lebanon ordinance then in effect, site-plan approval may be withheld even for a permitted use because of the impact on the neighborhood. The board granted approval and the plaintiff, an abutter, appealed to superior court, which upheld the board. Plaintiffs’ exceptions were transferred by Johnson, J.

The lawyer for Purcell, at a previous hearing before the board of adjustment, while seeking a variance to construct fifty units of elderly housing on the same tract, stated that he thought that “34 units that are allowable without a variance would depreciate the value of the surroundings.” The plaintiff argues that Purcell is bound by this statement and is estopped from claiming that the thirty-four units for which he seeks site-plan approval would not have an adverse effect.

The action of the board and the superior court in refusing to find an estoppel is supported by the record. They could have found there was no inconsistency because the statement in the previous proceeding related to thirty-four units of low-cost housing while the present plan is for luxury apartments which would expectably produce fewer occupants and thus have less impact.

Exceptions overruled.  