These are appeals by the board of appeals (board) from final decrees of the trial judge in the Superior Court which annulled the board's decision denying a special permit to erect apartment houses, and ordered the board to issue the special permit and approve the site plan. The decrees must be reversed. Although the judge found that the increase in traffic would be "minimal," and that the traffic problem is "no more than can be expected in a community of the size of the town of Canton under normal conditions," the evidence indicated that there was a basis for concern as to traffic congestion during rush hours and that traffic would probably be increased during those hours by a substantial amount as a result of the proposed apartment houses. It is the board's evaluation of the seriousness of the problem, not the judge's, which is controlling. General Laws c. 40A, Section 4, gives to the board, not the trial judge, the discretion to issue a special permit. Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 . Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 559-560. This is not a case where the board's decision is based on a legally untenable ground (see e.g., Tambone v. Board of Appeal of Stoneham, 348 Mass. 359 ) or is arbitrary (see e.g., Mahoney v. Board of Appeals of Winchester, 344 Mass. 598 ). The foregoing is sufficient to require reversal without considering the judge's findings relative to the other reasons assigned by the board for its decision. The final decrees are reversed and decrees are to be entered stating that the decision of the board did not exceed its authority, that no modification of its decision is required, and that the clerk of the court within thirty days after the entry of the decrees send attested copies thereof to the board.
[Note 1] Planning Board of Canton against the same defendant.
On December 1, 1970, the defendant was found guilty of murder in the second degree and was sentenced to life imprisonment. He appealed, briefs were submitted by the parties, and the matter was argued before this court at its January sitting. Subsequently, on January 30, 1973, the defendant was granted a six day furlough from the institution to which he had been committed. He has never returned from that furlough. On learning that the defendant was a fugitive, the attorney for the Commonwealth filed a motion to dismiss the appeal. At the hearing on the motion, counsel for the defendant agreed that the defendant had been granted a furlough, had not returned at its expiration, and that his whereabouts were unknown. In Commonwealth v. Rezendes, 353 Mass. 228 , it was clearly
stated that the right of appeal cannot be permitted to a fugitive from justice. In that case the court said, "By his voluntary act, which renders him unavailable to await the decision of the court, he has waived appellate rights. There is no occasion for us to consider his exceptions or any arguments now made on his behalf. This is the necessary consequence of our cases, a result which we fully approve. Commonwealth v. Andrews, 97 Mass. 543 . Commonwealth v. Dowdican's Bail, 115 Mass. 133 , 137. Henderson v. Henderson, 329 Mass. 257 , 258. Ellis v. Doherty, 334 Mass. 466 , 468. See Smith v. United States, 94 U.S. 97; Allen v. Georgia, 166 U.S. 138. See also 69 A. L. R. 2d 824, 848."