Board of Selectmen of Pembroke v. R. & P. Realty Corp.

• Decision Date: 24 November 1964
• Citation: 202 N.E.2d 409,348 Mass. 120
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BOARD OF SELECTMEN OF PEMBROKE and another * v. R. & P. REALTY CORP.

Page 409

202 N.E.2d 409

348 Mass. 120

BOARD OF SELECTMEN OF PEMBROKE and another ^* v. R. & P. REALTY CORP.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Oct. 6, 1964.

Decided Nov. 24, 1964.

James A. Shannon, Quincy, and Eugene L. Tougas, Waltham, for defendant.

Joseph F. McGaffigan, Town Counsel, for plaintiffs.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.

WHITTEMORE, Justice.

The board of selectmen of Pembroke, having the power to enforce the zoning by-law of the town, sought in the Superior Court declaratory relief and an injunction to bar the removal of sand and gravel from land of R. & P. Realty Corp. The case was submitted on a statement of agreed facts. The final decree from which the defendant has appealed granted declaratory and injunctive relief in accordance with findings and rulings of the judge.

The zoning by-law in § 5A provides: 'Sod, Sand, Gravel, Loam and Stone Removal shall be permitted in any area only after a permit has been granted by the Board of Selectmen * * *. Nothing herein shall be construed to prohibit the removal of * * *[such material] from any way designated on a plan which has been approved by the Planning Board * * *.'

The defendant was removing sand and gravel without a permit under the contention that it was operating under a definitive subdivision plan that was constructively approved when the board failed to take final action on the plan under G.L. c. 41, § 81U, as amended through St.1958, c. 377, § 1, within sixty days after the submission of the plan to the planning board on September 15, 1958.

The planning board within sixty days of September 15, that is on November 8, 1958, acting in accordance with G.L. c. 41, § 81U, approved the plan subject to eight conditions. The board did not, however, send to the town clerk a certificate of its decision until November 20, 1958, sixty-six days after the submission of the plan, and the defendant contends that the omission to take this step within sixty days was failure 'to take final action regarding * * * [the] plan * * * within sixty days after * * * submission,' which by the statute is to 'be deemed to be an approval,' without any conditions, of the plan as it was submitted.

The statute, G.L. c. 41, § 81U, as in force on September 15, 1958 (see St.1958, c. 377, § 1, effective ninety days after its approval, June 9, 1958), provided in part: 'After the hearing required by section eighty-one T * * * the planning board shall approve, or, if such plan does not comply with the subdivision control law or the rules and regulations of the planning board * * * shall modify and approve or shall disapprove such plan, shall file a certificate of its action with the city or town clerk, a copy of which shall be recorded by him in a book kept for the purpose, and shall send notice of its action by registered mail, postage prepaid, to the applicant at his address stated on the application. * * * Failure of the planning board to take final action regarding a plan * * * within sixty days after * * * submission * * * shall be deemed to be an approval thereof.'

On December 10, 1958, the attorney for James Rindone, the then owner of the land, acting under G.L. c. 41, § 81V, ¹ requested of the town clerk a certificate of the constructive approval of the plan as submitted on September 15, 1958. The town clerk on December 15, 1958, issued the following certificate: 'I, William A. Key, do hereby certify that I am Clerk of the Town of Pembroke; That under the provisions of the Subdivision Control Law, there was submitted to the Planning Board of the Town of Pembroke on September 15, 1958, for approval by said Board, a definitive plan of a sub-division known as 'Creshore Acres' owned by James Rindone; That no notice of final action by the said Planning Board under the provisions of General Laws (Ter.Ed.) Chapter 41, Section 81U was filed in my office before November 18, 1958; That I received no notice of appeal in connection therewith before the ninth day of December, 1958, in accordance with the provisions of Section 81BB of said Chapter 41; That the approval resulting from such failure has become final.'

The certificate was recorded in the registry of deeds on December 16, 1958, as was the definitive plan of the subdivision. Also, on December 16, 1958, James Rindone conveyed the parcel to the defendant, R. & P. Realty Corp., in which his son and sonin-law were officers, directors, and sole stockholders. James Rindone was at no time an officer, director or stockholder of the corporation.

The judge, rejecting the defendant's contention, ruled that the planning board's decision on November 8 was the 'final action regarding a plan' required by the statute and that the board's failure to file a certificate of its action with the town clerk within sixty days of September 15, 1958, was not constructive approval of the plan.

It is, of course, apparent that § 81U, as amended through St.1958, c. 377, § 1, was ambiguous. Was the 'final action regarding a plan' (emphasis supplied), which the board must take within sixty days if the plan was not to be deemed approved, the 'action' of the board directly related to the plan in approving, or modifying and approving or disapproving the plan or was it the giving of notice to the applicant and the filing with the town clerk of the certificate of its decision in respect of its plan? In Pieper v. Planning Bd. of Southborough, 340 Mass. 157, 161, 162, 163 N.E.2d 14, 17, the construction of § 81U in this aspect was adverted to but not decided. We there said: 'If disapproval without a hearing, intended as final action, takes place within the forty-five day period [now sixty days], it is final board action, at least if taken otherwise in accordance with § 81U.' (emphasis supplied). In the Pieper case the plaintiff contended that the notices under § 81U, given within the forty-five day period, were inadequate because the notice to him was not by registered mail and the notice to the clerk was not a formal certificate. We noted that Pieper had treated the board's action as final by a timely filing of his bill in equity and the giving of notice to the town clerk under § 81BB. We held that in these circumstances 'where the informalities of the board's action affected only him', Pieper should not be heard to contend that the 'administrative action' taken was not final board action.

The act of filing the certificate with the town clerk is an act that affects the rights of the owner, his grantees, and the public in respect of the plan. Such an act, within usual and well understood meanings of the words used, is action regarding the plan. That act, and the giving of notice to the applicant, are the final acts in any way related to the plan that the planning board must perform under § 81U.

Nevertheless, apart from the statutory context, discussed below, it could be said that the final act regarding the plan itself was the decision of the board about the plan whereas the act filing the certificate was an act regarding the certificate. This meaning of '[f]ailure * * * to take final action regarding a plan' is the meaning given these words in the amendment of 1960 (St.1960, c. 266, § 2), which added a specific provision to the effect that failure to file the certificate within the sixty day period results in constructive approval. By that amendment § 81U now reads in part: 'Failure of the planning board either to take final action or to file with the * * * town clerk a certificate of such action regarding a plan submitted by an applicant within sixty days after such submission * * * shall be deemed to be an approval thereof.'

But this 1960 meaning of the words does not control the construction of the 1958 statute. The construction of § 81U, as amended through St.1958, c. 377, § 1, must be made in its statutory context.

The intention of relevant sections of the Subdivision Control Law is to set up an orderly procedure for definitive action within stated times, and for notice of that action in offices of record within stated times, so that all concerned may rely upon recorded action or the absence thereof within such times. See G.L. c. 41, §§ 81V, 81W, 81X, 81BB, 81EE; Carey v. Planning Bd. of Revere, 335 Mass. 740, 745, 139 N.E.2d 920.

Section 81U must be construed with particular reference to §§ 81V (quoted in part in note 2), and 81BB. Section 81BB, as amended through St.1957, c. 199, § 2, provides in part: 'Any person * * * aggrieved by * * * any decision of a planning board concerning a plan of a subdivision, or by the failure of such a board to take final action concerning such a plan within the required time * * * may appeal to the superior court sitting in equity * * * provided, that such appeal is entered within twenty days after such decision has been recorded in the office of the * * * town clerk or within twenty days after the expiration of the required time as aforesaid, as the case may be, and notice of such appeal is given to such * * * town clerk so as to be received within such twenty days. * * * The court shall hear all pertinent evidence and determine the facts, and upon the...