Bucci v. Planning Board

After the plaintiffs’ “Appeal under the provisions of G. L. c. 41, § 81BB” praying “[t]hat the approval of the Planning Board in granting the subdivision to Respondent Batter be annulled,” the defendant planning board, with the consent of John F. Batter, Jr., and Rosemary A. Batter, also defendants, and their successors in title,1 rescinded its approval of that subdivision plan. Therefore, the plaintiffs’ case is (as the defendant-appellees argue) moot. The plaintiffs’ attack on the decision of the planning board rescinding its approval fails for the reason (among others) that the rescission must stand unless and until the decision to rescind is itself annulled on appeal to the Superior Court under G. L. c. 41, § 81BB. See Marino v. Board of Appeal of Beverly, 2 Mass. App. Ct. 859, 860 (1974). See also Stoner v. Planning Bd. of Agawam, 358 Mass. 709, 710 (1971); Bigham v. Planning Bd. of No. Reading, 362 Mass. 860 (1972). So far as appears no such appeal from the planning board’s decision rescinding its approval was taken. (We express no opinion as to the merits of such an appeal.) Whether the plaintiffs could have litigated the various grievances adumbrated in their bill and brief in connection with the conditions of the original subdivision is immaterial, since the original subdivision plan is no longer viable. Accordingly, the judgment is modified to provide that the bill be dismissed because the case has become moot and not on the merits. See Berger v. Wellesley, 334 Mass. 193, 195 (1956); Bettigole v. City Council of Springfield, 1 Mass. App. Ct. 816 (1973). So ordered. Costs of this appeal to be taxed against the appellant. Footnotes [1] They are the only persons who appear to have an interest in the locus. The plaintiffs own nearby realty. Contrast Stoner v. Planning Bd. of Agawam, 358 Mass. 709, 714-715 (1971); Bigham v. Planning Bd. of No. Reading, 362 Mass. 860 (1972).