Home METROPCS OF MASSACHUSETTS, LLC v. LIZETTA FENNESSEY; and ALBERT P. MANZI III, ELLEN P. McINTYRE, RICHARD J. BYERS, JOSEPH L LaGRASSE, RICHARD M. VAILLANCOURT, THOMAS D. IPPOLITO, DANIEL BRAESE, and MICHAEL P. LIPORTO, as they are MEMBERS of the NORTH ANDOVER ZONING BOARD OF APPEALS

MISC 09-413762

December 29, 2009

ESSEX, ss.

Piper, J.

JUDGMENT

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 Fennessey’s written opposition on November 23, 2009, were taken under advisement. In a decision of even date, the court (Piper, J.) has determined that Fennessey’s 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 court’s 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 Fennessey’s 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, Fennessey’s administrative appeal; and that the written Decision of the Board denying Fennessey’s 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 Board’s action of September 3, 2009, of the Board’s 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).