Board of Selectmen v. Board of Appeals

322 N.E.2d 437, 3 Mass. App. Ct. 704, 1975 Mass. App. LEXIS 705

Opinion

The selectmen appeal from a Superior Court decree affirming the decision of the board of appeals (board) granting a special permit for the construction of multiple dwellings. The court had annulled an initial decision of the board granting the permit and remanded the case to the board for “further proceedings” (while retaining jurisdiction of the case) without the necessity of bringing a new petition. The subsequent decision of the board to grant the permit again was affirmed by the court. The selectmen assert that (1) the second decision of the board was a nullity because of the failure to give new notice under G. L. c. 40A, § 17, and (2) the use authorized under the permit was detrimental to the established or future character of the neighborhood or town. The record supports the court’s ruling that “no new notice or advertisement was required” under G. L. c. 40A, § 17, after remand (compare Josephs v. Board of Appeals of Brookline, 362 Mass. 290 [1972]) and its finding that the use involved would not be detrimental. Since the final decree upon the merits of the case is to be affirmed, we treat the board’s appeal from an interlocutory decree as having been waived.

Cortland A. Mathers (David Delaney with him) for the Board of Selectmen of Kingston. Francis L. Kelly for Albert R. Schofield, Jr., trustee. Mario P. Alfieri for the Board of Appeals of Kingston.

Decree affirmed.