Falcone v. Planning Board

The judge, and the board before him, did not err in ruling that the plaintiff was not entitled to an endorsement of approval based on the board’s 1974 action. That action was not in legal effect an approval. The conditions attached to the so called “approval” required that the plaintiff submit to the board a revised plan with various changes and plainly indicated that the revised plan was to be subject to discretionary approval by the board at that time. The 1974 decision was doubtless a “final action” as that term is used in § 81U, fourth par., and thus did not result in a constructive approval, for the reasons explained in Planning Bd. of Falmouth v. Board of Appeals of Falmouth, 5 Mass. App. Ct. 324, 327-328 (1977). The 1974 decision was subject to appeal at that time: its lack of definitiveness went to the validity, not the finality, of the board’s action. Compare Weld v. Board of Appeals of Gloucester, 345 Mass. 376, 378-379 (1963). Despite the board’s use of an “approved-with-conditions” format, the 1974 action was in effect a disapproval of the plan as submitted. The plaintiff does not at this time seek to have the board review the 1980 plan as an original submission.

Manuel Katz (Edward I. Modiste with him) for the plaintiff. Elizabeth A. Lane for the defendant.

Judgment affirmed.