BOARD OF SELECTMEN OF KINGSTON vs. BOARD OF APPEALS OF KINGSTON & another.

BOARD OF SELECTMEN OF KINGSTON vs. BOARD OF APPEALS OF KINGSTON & another.

3 Mass. App. Ct. 704

January 31, 1975

The selectmen appeal from a Superior Court decree affirming the decision of the board of appeals (board) granting a special permit for the construction of multiple dwellings. The court had annulled an initial decision of the board granting the permit and remanded the case to the board for "further proceedings" (while retaining jurisdiction of the case) without the necessity of bringing a new petition. The subsequent decision of the board to grant the permit again was affirmed by the court. The selectmen assert that (1) the second decision of the board was a nullity because of the failure to give new notice under G. L. c. 40A, Section 17, and (2) the use authorized under the permit was detrimental to the established or future character of the neighborhood or town. The record supports the court's ruling that "no new notice or advertisement was required" under

Page 705

G. L. c. 40A, Section 17, after remand (compare Josephs v. Board of Appeals of Brookline, 362 Mass. 290 [1972]) and its finding that the use involved would not be detrimental. Since the final decree upon the merits of the case is to be affirmed, we treat the board's appeal from an interlocutory decree as having been waived.

Decree affirmed.