Shea v. Board of Aldermen

434 N.E.2d 214, 13 Mass. App. Ct. 1046, 1982 Mass. App. LEXIS 1300

Opinion

The plaintiff’s application for a special permit under § 18/II/5 of the zoning ordinance is deemed to have been granted by operation of law under G. L. c. 40A, § 9 (as appearing in St. 1975, c. 808, § 3), because the board of aldermen, acting as the special permit granting authority under the ordinance (G. L. c. 40A, §§ 1A [inserted by St. 1977, c. 829, § 3A] and 9), failed to render or file with the city clerk within ninety days of either of the public hearings on the application (compare Building Inspector of Attleboro v. Attleboro Landfill, Inc., 384 Mass. 109, 110-111, 112, 114 [1981]) a “decision” of the type contemplated by G. L. c. 40A, §§ 11 (as most recently amended by St. 1979, c. 117), 15 (as appearing in St. 1975, c. 808, § 3) and 17 (as most recently amended by St. 1978, c. 478, § 32). See Gaunt v. Board of Appeals of Methuen, 327 Mass. 380, 381-382 (1951); Spaulding v. Board of Appeals of Leicester, 334 Mass. 688, 690-692 (1956); Opie v. Board of Appeals of Groton, 349 Mass. 730, 733 (1965); Richardson v. Zoning Bd. of Appeals of Framingham, 351 Mass. 375, 377 (1966); Lane v. Selectmen of Great Barrington, 352 Mass. 523, 526-527 (1967); Shuman v. Aldermen of Newton, 361 Mass. 758, 762-763, 764-765 (1972). See also Foster from Gloucester, Inc. v. City Council of Gloucester, 10 Mass. App. Ct. 284, 293-296 (1980). The judgment is to be modified by striking therefrom the words “City Clerk” and substituting in place thereof the words “The board of aldermen” and, as so modified, is affirmed.

Richard J. Kos, City Solicitor, for the defendants. John F. Wagner for the plaintiff.

So ordered.