COMMONWEALTH vs. RANDY M. FLOWERS.

EDWARD M. MCDAVITT vs. PLANNING BOARD OF WINCHESTER & another.

5 Mass. App. Ct. 827

May 25, 1977

The defendant planning board of the town of Winchester (board) appeals from a declaratory judgment entered in the Superior Court in favor of a landowner, the plaintiff McDavitt. We conclude that the judge did not abuse her discretion in granting declaratory relief to the plaintiff. See Smith v. Building Commr. of Brookline, 367 Mass. 765 , 768 (1975). While the board has not yet rescinded its approval of the subdivision of lots 1-9 in McDavitt's development so as to entitle him to appeal under c. 41, Section 81BB, it has threatened to do so. Should McDavitt fail to extend Thornberry Road

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over a portion of parcel A as demanded by the board, that would result in a sufficient threat to McDavitt's property interest to warrant his resort to declaratory relief. See Woods v. Newton, 349 Mass. 373 , 376 (1965); Belfer v. Building Commr. of Boston, 363 Mass. 439 , 441-442 (1973); contrast Picard v. Worcester, 338 Mass. 644 , 648 (1959). This is true even though the relief granted would not terminate the controversy between the parties. See Belfer, supra, at 442; see also Ciszewski v. Industrial Acc. Bd. 367 Mass. 135 , 139 (1975); Smith, supra, at 768. In our earlier opinion in this case, we concluded that lots 1-9 and parcel A were separate subdivisions and that it was permissible for the board to require the construction of the Thornberry Road extension as a prerequisite to approval by the board of the subdivision of parcel A. McDavitt v. Planning Bd. of Winchester, 2 Mass. App. Ct. 806 (1974). Nevertheless, and as stated in the declaratory judgment, the board is not foreclosed from seeking to rescind its approval of the subdivision of lots 1-9 by resorting to the remedy set out in G. L. c. 41, Section 81W, as amended through St. 1973, c. 605. Bigham v. Planning Bd. of No. Reading, 362 Mass. 860 (1972).

Judgment affirmed.