Planning Board of Peabody v. Board of Appeals of Peabody

• Decision Date: 02 July 1970
• Citation: 358 Mass. 81,260 N.E.2d 738
• Parties: PLANNING BOARD OF PEABODY v. BOARD OF APPEALS OF PEABODY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 738

260 N.E.2d 738

358 Mass. 81

PLANNING BOARD OF PEABODY v. BOARD OF APPEALS OF PEABODY et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued March 6, 1970.

Decided July 2, 1970.

Israel Bloch, Lynn, for plaintiff.

Before WILKINS, C.J., and SPALDING, KIRK, REARDON, and QUIRICO, JJ.

KIRK, Justice.

The planning board of Peabody brought this bill in equity by way of an appeal under G.L. c. 40A, § 21, from a decision of the board of appeals of Peabody granting a special permit to one Trager 'to remove fill and gravel from the area known as Page's Hill' in Peabody. The case is before us on the appeal of the planning board from a final decree in the Superior Court that the decision of the board of appeals was not in excess of its authority and that no modification of the decision was required. The appeal is accompanied by the exhibits and portions of the transcript.

The planning board contends, contrary to the conclusions of the judge, that the board of appeals lacked jurisdiction to consider the petition because the baord of appeals failed to give proper notice of the proposed hearing; that the board of appeals failed to make 'a detailed record of its proceedings, showing the vote of each member,' as required by G.L. c. 40A, § 18; and that the conditions attached to the permit are either unlawful or fail to satisfy the requirements of the zoning ordinance.

Page's Hill occupies the northern one-third of a 29.142 acre tract of undeveloped land bounded on the northwest by Route 128 and on its northeast corner by Forest and Summit streets. Forest Street intersects Route 128. Page's Hill fronts on Forest Street, and rises southwesterly over a distance of approximately 1,000 feet to a height of approximately 105 feet above the level of Forest Street. The slope falls off in a southerly direction, and the remainder of the tract is 'comparatively level,' although there are numerous large boulders and outcroppings of hard rock, and is on approximately the same level as Forest Street. The area in which the land lies was reclassified in 1967 as an Industry 'A--2' district in order to stimulate industrial development. The uses permitted in the district are limited to specific light manufacturing, processing and assembling plants, general office buildings, banks, any municipal use, and limited accessory uses incidental to the enumerated uses.

On May 4, 1967, shortly after the adoption of the zoning amendment which reclassified the Page's Hill land, Trager, representing the owners of the land, filed a petition with the board of appeals for a special permit 'to build a road into the rear of * * * (the) property and level same in preparation for a company, or companies, desiring to locate for light industry.' ¹ A plan later submitted to the board of appeals showed a proposed road entering the land from Forest Street and proceeding southwesterly across Page's Hill.

1. The judge found that the board of appeals fulfilled all the requirements of G.L. c. 40A, § 17, in giving notice of the proposed hearing on the petition. The evidence showed that the board of appeals caused notice to be published which gave the date for the proposed hearing and stated that Trager's petition was 'for a special permit, to remove fill and gravel from an area known as Pages (sic) Hill on the corner of Forest and Summit Sts., so as to build a road into the rear of his property.' A member of the board of...