Carey v. Planning Bd. of Revere

• Decision Date: 11 January 1957
• Citation: 335 Mass. 740,139 N.E.2d 920
• Parties: Mary E. CAREY v. PLANNING BOARD OF REVERE and others. Mary E. CAREY and others v. PLANNING BOARD OF REVERSE and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 920

139 N.E.2d 920

335 Mass. 740

Mary E. CAREY v. PLANNING BOARD OF REVERE and others.

Mary E. CAREY and others v. PLANNING BOARD OF REVERSE and others.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 2, 1956.

Decided Jan. 11, 1957.

Francis H. Farrell, Boston, for plaintiff.

Joseph B. Abrams, Boston (Robert T. Abrams, Ralph F. Martino, Asst. City Sol., Boston, and Benjamin A. Glosband, Lynn, with him), for defendants.

Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS and WHITTEMORE, JJ.

WHITTEMORE, Justice.

These are bills in equity to review a determination under G.L. (Ter.Ed.) c. 41 § 81P, ¹ as appearing in St.1953, c. 674, § 7, that approval of a plan under the subdivision control law is not required.

They seek to enjoin further construction by the defendant Pine's Construction Corp. on lots shown on the plan, and 'further authorization' therefor by the Revere building inspector, pending determination of the suits, and pray for an order to the planning board to comply with the provisions of the statute as to advertising, hearing, and notice in respect of the plan, and for annulment of the 'decision of the chairman * * * of June 20, 1955.' The trial judge dismissed the bills of complaint.

The substantive issue is whether, in view of a slope up from the lots to a State highway, a difference in level and a fence maintained by the Commonwealth, the subject lots have 'frontage on a public way' within the provision excepting a subdivision of lots having such frontage from the requirements of the statute for planning board approval. See G.L. (Ter.Ed.) c. 41, §§ 81K to 81GG, as appearing in St.1953, c. 674, § 7, and as amended, and in particular §§ 81L, 81O, 81P, and 81X.

The first bill of complaint was brought by Mary E. Carey, who the trial judge found is a mortgagee of real estate abutting the locus, and was filed on June 30, 1955. The substituted bill, filed July 12, states that the appeal was 'field * * * as an appeal under the provisions of G.L. c. 41, § 81BB.' ² The second bill of complaint was brought by Mary E. Carey and seventeen other taxpayers of Revere and filed on July 15, 1955, as a 'petition for review under the provisions of G.L. c. 41.' Section 81Y of this chapter provides that ten taxable inhabitants among others, within one year of the complained of act or failure to act, may bring a petition in equity 'to review any action of any municipal board or officer * * * in disregard of the provisions of this section * * * and otherise to enforce the provisions of the subdivision control law * * *.' ³

The trial judge found that the subject plan was filed June 3, 1955, that the chairman of the board on June 20, 1955, indorsed on the plan the words 'Revere Planning Board * * * Approval of under the Sub Division Control Law not required,' that he acted under the authority given him in the board's by-laws to 'sign all contracts, deeds, correspondence and other instruments, legal or otherwise, made by the board,' that the first meeting of the board after June 3 was on July 26, that the subject plan with the indorsement thereon was then submitted to the board, and that the indorsement of the chairman was, by vote, then ratified.

There is no basis for the second complaint. As the board had failed to act within fourteen days after submission of the plan the indorsement by the chairman of the board on June 20 was a ministerial act which in default of such indorsement was to be performed by the town clerk. If this were not so, it would be controlling that the ratification on July 26 caused the indorsement by the chairman to speak effectively from and after that date as an act of the board. Building activities on the subject lots thereafter were pursuant to an apparently exempt plan and, under the second bill, brought as we assume pursuant to § 81F, there is shown no action in 'disregard of the provisions of this section' or occasion 'to enforce the provisions of the subdivision control law.'

Mary E. Carey as mortgagee of adjacent premises under an outstanding and unpaid mortgage is an aggrieved person. Noncompliance with the subdivision control law in respect of property adjoining the real property which secures her debt may depreciate the value of that property. She has at least 'some pecuniary interest * * * which is immediately or remotely affected * * *' by the determination appealed from. See Lawless v. Reagan, 128 Mass. 592, 593, and Delaney v. Cook, 256 Mass. 203, 204, 152 N.E. 304 (cases under statute governing probate appeals); American Can Co. of Massachusetts v. Milk Control Board, 313 Mass. 156, 46 N.E.2d 542, and cases cited; Sunderland v. Building Inspector of North Andover, 328 Mass. 638, 105 N.E.2d 471. Compare Circle Lounge & Grille, Inc., v. Board of Apepal of Boston, 324 Mass. 427, 431-432, 86 N.E.2d 920. The plaintiff is also owner of land on a street parallel to the road on which the subject land is located, but the record does not disclose how near her land is to the locus.

The defendants contend that relief to the plaintiff is barred because she has not shown that she gave notice to the town clerk, within twenty days, of the filing of the appeal as § 81BB requires. There is no basis on this record for assuming that such notice was or was not given. The facts which we have are set forth in a report of material facts under G.L. (Ter.Ed.) c. 214, § 23. That report, which states 'all the material facts,' makes no finding as to such notice. Such report need contain only 'certain facts which [the trial judge] considered as material and which in his opinion formed the basis of his decision.' Plumer v. Houghton & Dutton Co., 277 Mass. 209, 214, 178 N.E. 716, 718. Where the report is under the statute, as here, or there is other indication that it contains all the facts that entered into the decree 'there is no room for any implication of further findings.' Birnbaum v. Pamoukis, 301 Mass. 559, 562, 17 N.E.2d 885, 886. Topor v. Topor, 287 Mass. 473, 476, 192 N.E. 52. Carilli Construction Co. v. John Basile & Co., Inc., 317 Mass. 726, 727, 59 N.E.2d 706. The report in a section headed, 'I further find, in so far as same may be deemed to be material,' states the absence of notice from the planning board to the clerk (see § 81U) and that no public hearing was held and no notice by advertising given. This suggests that so far as there was evidence or contention before the court in respect of compliance with the formalities of the statute the judge intended to include a summary thereof. But we may not speculate. The bill of complaint does not allege that the notice was given. The answer in response to the averment that the appeal was filed under § 81BB denies 'that the plaintiff has any right of appeal.' In respect of the time limitation in the similar provision in the section governing appeals in zoning cases, G.L. (Ter.Ed.) c. 40, § 30, as appearing in St.1933, c. 269, § 1, now c. 40A, §...