PAUL W. EISENHAURE and KATHERINE R. EISENHAURE vs. PETER DOWNING, DONALD McKINLEY, CHARLES STELLA, BRUCE GORDON, DEREK SHEEHAN and PATRICIA DIBIASE, MEMBERS OF THE ZONING BOARD OF APPEALS FOR THE TOWN OF TEWKSBURY and RUTH A. HANSON.

Plaintiffs seek to overturn the decision of the Zoning Board of Appeals for the Town of Tewksbury (the "Town") and to obtain equitable and declaratory relief to enforce a restrictive covenant against Ruth H. Hanson ("Hanson"). Hanson received a zoning variance to divide her existing property into two lots.

On May 1, 1990 plaintiffs filed a complaint alleging that the Town did not comply with G.L. c. 40A in ruling on Hanson's request for a variance. Plaintiffs further alleged that Hanson's property is subject to a restrictive covenant and may not be divided.

Plaintiffs have moved for summary judgement against all defendants and have submitted a memorandum. Defendant Ruth A. Hanson submitted a memorandum in opposition. Counsel for plaintiffs and counsel for Ruth A. Hanson argued the motions on April 26, 1991. On the basis of the foregoing and the pleadings, I find and rule as to Count I that there is no genuine issue as to any material facts and further find and rule for the defendants as follows:

1. Plaintiffs live at 6 Westland Drive, Tewksbury. Hanson lives across the street, at #5.

2. Hanson proposes to subdivide her lot, which now has 43,955 sq. ft., into two lots and to construct a dwelling on the second lot.

3. Hanson obtained a variance from the defendant Board to accomplish the subdivision. The variance is dated September 25, 1989 and was filed with the Town Clerk on October 26, 1989.

4. One or both of plaintiffs attended the public hearing on the variance.

5. This action was commenced May 1, 1990.

6. Plaintiffs allege that they never received notice of the decision of the Board as required by G.L. c. 40A, §15.

7. Even if plaintiffs should prove that notice of the decision was not mailed, their appeal comes too late, as it postdates the ninety days from the filing date referred to in the last sentence of the second paragraph of G.L. c. 40A, §17. See also, as to the prior version of Chapter 40A, DelGrosso v. Board of Appeal of Revere, 330 Mass. 29 (1953). Accordingly, as to Count I, I grant summary judgement for the defendants, as permitted by Mass. R. Civ. P 56(c).

As to Count II, concerning enforcement of restrictions, I find and rule that there are genuine issues of material fact and therefore deny plaintiffs' motion.

Judgement as to Count I accordingly.