where board’s decision revealed that the vote of at least one of four members was based upon a clearly erroneous ground, its decision had to be annulled for failure to be based upon legally tenable ground by requisite supermajority vote
How later courts described this case
- where board’s decision revealed that the vote of at least one of four members was based upon a clearly erroneous ground, its decision had to be annulled for failure to be based upon legally tenable ground by requisite supermajority vote
- suggesting that decision and reasons must be filed together
Written by the judges who cited it.
The opinion
Lynch, J.
(concurring, with whom Liacos, C.J., joins). I join in the court’s conclusion in the second part of its opinion that at least one member of the board based his or her decision on a clearly erroneous ground. I do not agree that “the provision in G. L. c. 40A, § 15, requiring a concurring vote of four members of a board of appeals consisting of five members means only that four members must agree on the result” (emphasis supplied). Ante at 566. I do agree, however, that “four board members must agree on why they have reached a particular result.” Id. In other words § 15 requires concurrence among at least four members of a five-member board in the reason for the board’s decision. The board conceded that no consensus was reached and that none of the various reasons for the approval attracted the necessary four votes. There was some support for the view that the appeal should be granted because construction was not begun *569 on time, while others thought that the plaintiff did not proceed with due diligence. These concepts are completely different and depend on separate and distinct factual underpinnings. In such a situation there has been no consensus in the reason for the board’s decision. I would therefore conclude that, where the board was unable to muster the required supermajority for the basis for its decision, it cannot set out a reason for its action as the statute requires.
The court says the reason for the board’s action is that the plaintiff did not exercise the special permit by commencing construction within the time required. Ante at 566. This conclusion, it seems to me, overlooks the fact that one or more members agreed with that precise proposition, while others were unable to accept that premise, but believed instead that the appeal should be allowed because the plaintiff did not proceed with due diligence. In such circumstances the record of the board’s proceedings does not demonstrate the reason for its decision.