This action, commenced October 9, 2009, seeks review pursuant to G. L. c. 40A, § 17 of a Notice of Constructive Approval, filed September 21, 2009 by defendant Lizetta Fennessey (Fennessey). Fennessey claims the defendant members of the Zoning Board of Appeals of North Andover (Board) constructively approved her administrative appeal to the Board, filed May 28, 2009, of the grant of a building permit to plaintiff MetroPCS of Massachusetts, LLC (MetroPCS). Motions for judgment on the pleadings were heard by the court on November 16, 2009 and, following the filing of Fennesseys written opposition on November 23, 2009, were taken under advisement. In a decision of even date, the court (Piper, J.) has determined that Fennesseys appeal was not constructively allowed by the Board, the Board having acted and filed its Decision timely in accordance with the governing statute.
In accordance with the courts decision issued today, it is
ORDERED, ADJUDGED, and DECLARED that the Notice of Constructive Approval, filed September 21, 2009 by Fennessey is not valid or effective; that Fennesseys admistrative appeal to the Board, filed May 28, 2009, was not constructively approved or allowed by operation of G. L. c. 40A, §15 or any other statute; that the Board timely acted upon, and then timely filed its written Decision concerning, Fennesseys administrative appeal; and that the written Decision of the Board denying Fennesseys appeal for failure to obtain the requisite four votes, which written Decision was filed with the Town Clerk on September 17, 2009, is to stand as issued. It is further
ORDERED that the court has not adjudicated the merits of the Boards action of September 3, 2009, of the Boards written Decision filed September 17, 2009, or of Building Permit No. 628, issued May 18, 2009, the merits of all those matters being the subject of another proceeding in the Superior Court Department and not being in any manner before this court.
By the Court. (Piper, J).