In September, 1981, Elder Care Services, Incorporated (Elder Care), applied to the zoning board of appeals (board) for a special permit to construct a facility consisting of a 120-bed nursing home and 300 self-care units in a district where, under Hingham’s zoning by-law, a nursing home or “other non-correctional institutional use” is allowed under a special permit, but where multi-family dwellings, including apartments, are not. The board denied the application on December 10, 1981, at its last public hearing on the matter, but failed to file its decision until April 26, 1982, *481137 days after the public hearing. Since the board did not file its decision with the town clerk within the ninety-day period required by G. L. c. 40A, § 9, the permit must be deemed to have been constructively granted. Building Inspector of Attleboro v. Attleboro Landfill, Inc., 384 Mass. 109, 110 (1981). A judge of the Superior Court so ruled as matter of law in this action brought by Elder Care within twenty days of the April decision of the board. Elder Care’s action sought, among other things, to annul that decision. A judgment entered for Elder Care.2
The board claims error in the judge’s refusal to allow it to litigate the issues: (1) whether the permit was for a prohibited use under Hingham’s zoning by-law3 and (2) whether Elder Care had waived its right to a constructive grant of a permit. We affirm.
The board contends that this action should be considered a timely appeal under G. L. c. 40A, § 17, in which these issues may be litigated as it was brought, albeit by Elder Care, within twenty days of the filing of the board’s decision in April. The board’s challenge, however, is not directed against its April decision (which, indeed, it is trying to sustain) but rather is directed against the constructive grant of March 10, 1982, which resulted from the board’s failure to file its decision within the ninety-day period. The cases which construe G. L. c. 40A, §§ 9 and 15, as requiring the filing as well as the making of a decision within statutory time limits point to the importance of the need to limit the period during which an appeal may be taken. Building In*482spector of Attleboro v. Attleboro Landfill, Inc., 383 Mass. at 111-112. Capone v. Zoning Board of Appeals of Fitchburg, 389 Mass. 617, 623-624 (1983). Noe v. Board of Appeals of Hingham, 13 Mass. App. Ct. 103, 111 (1982) (Dreben, J., dissenting). “[T]he applicable judicial appeal period must be limited to a definite time even when a board does not timely file its decision in the office of the city or town clerk.” Capone, supra at 624.4 To permit the board to create for itself a new appeal period by choosing to file its decision late would undermine the legislative intent as construed in these opinions. Cf. also Milton Commons Associates v. Board of Appeals of Milton, 14 Mass. App. Ct. 111, 118-120 (1982).
The same consideration leads us to reject the board’s alternative claim that an appeal under G. L. c. 40A, § 17, is unnecessary, where, as here, it is claiming that the grant was unauthorized. The statutory appeal provided in G. L. c. 40A, § 17, as amended by St. 1978, c. 478, § 32, specifically applies to claims that “the decision exceeds the authority of the board,” and that route of appeal, which § 17 states “shall be exclusive,” may not be ignored.5 See Lincoln v. Board of Appeals of Framingham, 346 Mass. 418, 420 (1963); Saab v. Building Inspector of Lowell, 1 Mass. App. Ct. 87, 88 (1973); Costello v. Board of Appeals of Lexington, 3 Mass. App. Ct. 441, 445 (1975). See also Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. at 624.
*483As we said in Girard v. Board of Appeals of Easton, 14 Mass. App. Ct. 334, 338 (1982), “[zjoning relief granted constructively is not beyond judicial review. The relief so granted may be tested on appeal under G. L. c. 40A, § 17, to determine whether facts exist which would have enabled the board to grant the relief.” Having allowed the time to pass under § 17, the board cannot now belatedly challenge the constructive grant in Elder Care’s action.
We also conclude for analogous reasons that the judge was correct in ruling that the board may not, in this proceeding, litigate whether Elder Care by its actions waived the right to a constructive grant of its application. See Zaltman v. Town Clerk of Stoneham, 5 Mass. App. Ct. 248, 252 (1977), where under G. L. c. 41, § 81U, we required that there be a record in the town clerk’s office of definitive action within the statutory time period and, therefore, precluded a showing of waiver of a right to constructive approval. We think the same principles apply here where there is nothing to suggest that a waiver was made a matter of record in the Hingham town clerk’s office.6
Judgment affirmed.