5 Mass. App. Ct. 324 | Mass. App. Ct. | 1977
On February 21, 1973, the planning board filed this appeal under G. L. c. 40A, § 21, as in effect prior to St. 1975, c. 808, § 3, from a decision of the board of appeals relative to the grant of a variance for the construction of a “neighborhood” shopping center in an agri
The planning board challenges the correctness of that disposition, contending (1) that the decision of the board of appeals was not in fact or in law a decision granting a variance, but was, rather, an opinion or statement advising the applicants that a variance would be granted after certain conditions were complied with, implying the necessity for further action by the board, and thus analogous to the “decision” in, and invalid for the reasons given in, Weld v. Board of Appeals of Gloucester, 345 Mass. 376 (1963), and (2) that because the action taken by the board was not a decision within the meaning of G. L. c. 40A, § 21, the twenty-day period specified therein does not bar the appeal. Without suggesting that an appeal under § 21 would lie from an action falling short of a decision (see Maria v. Board of Appeal of Lowell, 348 Mass. 798 [1965]), we hold that neither of the points argued has merit.
1. The portions of the decision which bear on the planning board's contention that it was not in legal effect a decision presently granting a variance are set out in the margin.
The distinction we draw is between a condition which contemplates a further determination of substance by the board of appeals and a condition which is simply vague. In Weld v. Board of Appeals of Gloucester, supra, it was assumed that a board of appeals could render a valid decision granting a permit, even though it “withheld the specific writing which would constitute the actual permit”
2. We also think that a decision by a board of appeals purporting to act on an application for a variance is presently appealable whether conditioned on further determinations of substance or not. The contingency may have the effect of making the decision unlawful (see the Weld case, supra, and the Potter case, supra) but it does not vitiate its character as a “decision.” The Weld case was disposed of by annulling the decision of the board, not by dismissing the appeal therefrom. The zoning enabling act does not limit the right of appeal (G. L. c. 40A, § 21, as amended through St. 1974, c. 78, § 1; § 17, as appearing in St. 1975, c. 808, § 3) to decisions categorically granting or
Judgment affirmed.
“DECISION OF THE BOARD OF APPEALS... WHEREAS, The Board of Appeals is of the opinion that the variance is granted with the conditions stated below... NOW THEREFORE BE IT RESOLVED, that the Board of Appeals ... hereby grants this petition and authorizes a permit to be issued... subject to the following conditions: A. Submission of a new plan showing the following: 1. Eight stores with offices above, as per plan which accompanied the application; with no other buildings on the property. 2. An eight foot cedar fence to be erected along the entire rear line of the property to protect abutting residential property — with a staggered line of trees planted
The statutes authorizing the granting of special permits and variances (G. L. c. 40A, §§ 4, 15[3], as in effect prior to St. 1975, c. 808, § 3, and G. L. c. 40A, §§ 9, 10, as in effect thereafter) specifically contemplate the imposition of conditions. See discussion in Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147, 158-159 (1976). To be contrasted are cases involving conditional disapprovals of subdivision plans, which have several times been held not to be legally effective as disapprovals. The result is often an unintended constructive approval. See Kay-Vee Realty Co. Inc. v. Town Clerk of Ludlow, 355 Mass. 165 (1969); Zaltman v. Town Clerk of Stoneham, ante, 248 (1977).