Cassani v. Planning Bd. of Hull

• Decision Date: 30 August 1973
• Parties: Mary L. CASSANI et al. v. PLANNING BOARD OF HULL.
• Court: Appeals Court of Massachusetts

Page 746

300 N.E.2d 746

1 Mass.App.Ct. 451

Mary L. CASSANI et al. v. PLANNING BOARD OF HULL.

Appeals Court of Massachusetts, Plymouth.

Argued Jan. 16, 1973.

Decided Aug. 30. 1973.

George C. Caner, Jr., Boston, for plaintiffs.

Haskell A. Lampke, Town Counsel, Boston, for Planning Bd. of Hull.

Before KEVILLE, GOODMAN and ARMSTRONG, JJ.

ARMSTRONG, Judge.

This bill in equity is an appeal under G.L. c. 41, § 81BB, or alternatively a bill for declaratory relief under G.L. c. 231A, seeking a determination of the invalidity of an action of the defendant planning board (board) in the administration of the Subdivision Control Law (G.L. c. 41, §§ 81K--81GG).

On May 10, 1971, the board, pursuant to § 81P, had accorded to each of two land division plans submitted by one of the plaintiffs the endorsement 'Approval under Subdivision Control Law not required.' On November 9, 1971, the board, without notice or hearing, purported to rescind that endorsement. The plaintiffs, who are the record and beneficial owners respectively of the land in question, brought their bill to nullify the purported rescission. The trial judge ruled that the planning board did not exceed its authority in rescinding its earlier endorsement, and entered a final decree dismissing the bill of complaint. The plaintiffs appeal from 'the court's finding of fact, rulings of law and order for decree,' and from the final decree. The evidence is reported.

The plaintiffs take the position that the planning board was required as a matter of law to endorse the plans in accordance with the provisions of § 81P, ¹ because neither plan showed a 'subdivision' as that word is defined in § 81L. They contend that each lot shown in the division plans complies with the area and frontage requirements of the zoning by-law of the town of Hull. The planning board takes the position that it was entitled to withhold its endorsement because certain lots shown on the division plans were, in fact, back lots, connected to a public way by a long, narrow strip of land which flared out at the street in an attempt to satisfy the frontage requirement of the zoning by-law; that these lots would merely be connected to, but not front on, a public way; and that therefore the plans were 'subdivision' plans requiring planning board approval.

The board takes the further position that although it gave its endorsement on May 10, 1971, it was empowered, upon changing its mind, to rescind that endorsement. The letter purportedly rescinding the endorsement was dated November 9, 1971, and was issued without notice to the plaintiffs or opportunity for them to be heard.

Because we are of the opinion that the board lacked the power to rescind its endorsement, even if it can be said as a matter of law that the plans showed a subdivision, we do not reach the important substantive issue of whether the board acted erroneously in originally giving the plans its endorsement under § 81P.

The powers of a planning board to amend or rescind its actions with respect to subdivision plans are set out in G.L. c. 41, § 81W, as appearing in St.1953, c. 674, § 7. ². Section 81W only authorizes rescission with respect to plans which have previously received planning board 'approval'. A recent decision appears to have suggested that there is uncertainty as to whether 'approval' as used in § 81W refers only to an actual approval by the planning board, or whether it also includes a constructive approval resulting from failure to act within sixty days as required by the fourth paragraph of § 81U. See Stoner v. Planning Board of Agawam, 358 Mass. 709, 715, 266 N.E.2d 891 (1971). Cf. Board of Selectmen of Pembroke v. R. & P. Realty Corp., 348 Mass. 120, 128--129, 202 N.E.2d 409 (1964); Kay-Vee Realty Co., Inc. v. Town Clerk of Ludlow, 355 Mass. 165, 169--170, 243 N.E.2d 813 (1969). But there is no uncertainty as to whether or not the word 'approval' as used in § 81W includes an endorsement under § 81P that such approval is not required. Such an endorsement is not regarded as an 'approval' as that term is used in the Subdivision Control Law. Goldman v. Planning Board of Burlington, 347 Mass. 320, 324, 197 N.E.2d 789 (1964).

The Subdivision Control Law is not drafted in generalities. The draftsmanship is detailed, specific, and careful. With respect to the question before us, it is not in any way ambiguous. For example, §§ 81X, set out in relevant part in the margin, ³ illustrates the sharp differentiation made in the Subdivision Control Law between the concepts of an endorsement of approval under § 81U and an endorsement that approval is not required under § 81P. The several sections of the Subdivision Control Law making reference to the power to rescind: namely, §§ 81W, 81X and 81DD, do not refer to the power to modify, amend or rescind a 'decision', or 'determination', or 'endorsement'. Nor is the object of a 'modification, amendment or rescission' left to implication. Rather, the form of phrase repeatedly used is 'the modification, amendment or rescission of the approval of a plan.'

The same result is reached by comparing parallel sentences appearing in §§ 81P and 81X concerning conclusiveness of decisions. Section 81X, governing the recording of plans, after making reference to several types of endorsements, including endorsements of approval and endorsements that approval is not required, states: 'The contents of any such endorsement of the planning board or certificate by the clerk of the city or town shall be final and conclusive on all parties, subject to the provisions of section eighty-one W.' By contrast, § 81P, making reference to only one type of endorsement, namely, an endorsement that approval is not required, states: '. . . and such endorsement shall be conclusive on all persons.' Unlike § 18X, in which 'conclusive' is modified by 'subject to the provisions of section eighty-one W', in § 81P the word 'conclusive' is not modified or limited in any way.

Only one conclusion seems warranted: that when § 81W grants the power to rescind an 'approval', it means just that. It does not authorize a planning board to rescind an endorsement that approval is not required.

Nor do we feel that the existence of such authority can, apart from § 81W, be inferred from general principles of administrative law. There is much confusion in the law as to whether and to what extent administrative bodies are empowered to modify their own decisions or correct their own mistakes. See e.g., Davis, Administrative Law (1958), § 18.09. Recent Massachusetts cases touching on the problem include Fortier v. Department of Public Utilities, 342 Mass. 728, 731--733, 175 N.E.2d 495 (1961); Dion a. Board of Appeals of Waltham, 344 Mass. 547, 552--553, 183 N.E.2d 479 (1962); Goldman v. Planning Board of Burlington, 347 Mass. 320, 325, 197 N.E.2d 789 (1964); Fish v. Building Inspector of Falmouth, 357 Mass. 774, 775, 258 N.E.2d 743 (1970); Shuman v. Board of Aldermen of Newton, Mass., ^a 282 N.E.2d 653 and POTTER V. BOARD OF APPEALS OF MANSFIELD, MASS.APP.CT., 294 N.E.2D 587.^B The present case does not involve merely the later correction of an inadvertant error. It involves the reversal of a conscious decision, and the substitution therefor, over six months later, of a 'determin(ation) that in its opinion the plan requires approval . . ..' Section 81P. See Potter v. Board of Appeals of Mansfield, supra, at ---, ^c 294 N.E.2d 587. That such a determination may involve difficult questions of judgment may be seen not only from the facts of this case, but from those of Carey v. Planning Board of Revere, 335 Mass. 740, 742, 139 N.E.2d 920 (1957).

Section 81P gives a planning board fourteen days in which to make its determination as to whether approval is or is not required. If it has not acted within that time, it is deemed to have determined that approval is not required, and the person who submitted the plan is thereafter entitled, as of right, to an endorsement by or on behalf of the planning board so stating. Carey v. Planning Board of Revere, 335 Mass. 740, 743, 139 N.E.2d 920 (1957). The endorsement is declared by § 81P to be conclusive 'on all persons,' a phrase which obviously does not exclude the planning board itself. ⁴ With such a statutory provision, we cannot easily reconcile a contention that after the fourteen days has expired the planning boare retains power to determine that approval is required. On the contrary, the imputation of such a power would not seem to us to be consistent with the 'intention . . . of the Subdivision Control Law . . . to set up an orderly procedure for definitive action within stated times . . . so that all concerned may rely upon recorded action or the absence thereof within such times.' Board of Selectmen of Pembroke v. R. & P. Realty Corp., 348 Mass. 120, 125, 202 N.E.2d 409, 412 (1964). It cannot be assumed that the Legislature, having in § 81W placed elaborate limitations on the power to rescind an approval of a plan in order to protect those who have relied on that approval, would sanction the existence of a power, free of such limitations and protections, to rescind an endorsement that approval is not required.

We do not disagree with the contention of the planning board that it ought to have the power to rescind a determination under § 81P that approval is not required in order better to protect the public interest in preventing subdivisions without adequate provision for access, sanitation and utilities. But if such a power is to be found, it must be found, in the Subdivision Control Law, which is a 'comprehensive statutory scheme,' (CONSTANZA & BERTOLINO, INC. V. PLANNING BOARD OF NORTH READING, MASS., (1971), 277 N.E.2D 511^D and not in our personal notions of sound policy. As the statute is clear, we are not at liberty to interpose such notions, but must apply the statute as the Legislature wrote it.

The proper form of final decree which should be entered in this case...