Home ANDREW F. DEIBEL & another vs. ROBERT E. YORKE & another. [Note 1]

4 Mass. App. Ct. 770

January 22, 1976

1. The Superior Court had power to remand the case to the board of appeals (board) for further findings and a statement of the board's reasons for granting-the variance. Roberts-Haverhill Associates v. City Council of Haverhill, 2 Mass. App. Ct. 715 , 717-719 (1974). O'Brian v. Board of Appeals of Brockton, 3 Mass. App. Ct. 740 (1975). 2. The board was not required to take the further action directed within either of the appeal periods set out in G. L. c. 40A, Section 21 (as in effect prior to St. 1973, c. 1114, Section 4). The board could and did take its further action within a reasonable time. 3. Nothing in G. L. c. 40A, Section 17 (as amended through St. 1973, c. 296, Section 2) or Section 18 (as amended through St. 1971, c. 1018), required the board to hold a further public hearing in order to consider the evidence taken at the first hearing or make further findings based on that evidence. Selectmen of Kingston v. Board of Appeals of Kingston, 3 Mass. App. Ct. 704 (1975). The judgment entered on August 23, 1974, is affirmed with double costs from September 23, 1974.

So ordered.


[Note 1] The board of appeals of Scituate.


4 Mass. App. Ct. 770

January 28, 1976

This petition for a writ of mandamus -- now termed a complaint seeking relief formerly available by writ of mandamus, see G. L. c. 249, Section 5, as amended through St. 1973, c. 1114, Section 291; Mass.R.Civ.P. 1A, 365 Mass. 731 (1974) -- is brought to compel the

Page 771

building inspector of the city of Chicopee to enforce the zoning ordinance as in effect prior to November 9, 1972, when the city council voted to rezone two contiguous parcels which had theretofore been zoned as Residence A (single family) to Business A (which would permit a small shopping center) and Residence C (which would permit the construction of multifamily residential buildings), respectively. The order for judgment dismissing the petition is amply supported by the careful and well considered findings (the evidence is not reported) made by the trial judge. See Crall v. Leominster, 362 Mass. 95 , 100-103 (1972); Raymond v. Building Inspector of Brimfield, 3 Mass. App. Ct. 38 (1975).

Order for judgment affirmed.

Judgment is to be entered dismissing the petition.