Costanza & Bertolino, Inc. v. Planning Bd. of North Reading
| Decision Date | 30 December 1971 |
| Parties | COSTANZA & BERTOLINO, INC. v. PLANNING BOARD OF NORTH READING. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Walter G. Bilowz, Town Counsel, for defendant.
Eugene L. Tougas, Waltham, on brief, for plaintiff.
Before TAURO, C.J., and CUTTER, REARDON, QUIRICO and HENNESSEY, JJ.
This is an appeal brought under the provisions of the Subdivision Control Law, G.L. c. 41, §§ 81K to 81GG. Pursuant to the provisions of G.L. c. 41, § 81P, the plaintiff, on April 3, 1969, submitted to the defendant a plan (hereinafter referred to as the Costanza plan) and requested that it be indorsed, 'Approval Under the Subdivision Control Law is Not Required.' On that day, the planning board by a vote of its members declined to make the indorsement. The plaintiff appealed the action of the board to the Superior Court under G.L. c. 41, § 81BB. After a trial and a report of material facts, a final decree was entered declaring the vote of April 3, 1969, null and void, ordering the board to expunge the vote from its records and further ordering the board to indorse the plan as requested by the plaintiff. The defendant appeals from this final decree.
1. The sole issue before us is whether the planning board exceeded its authority in declining to make the requested indorsement. The judge found that the indorsemented was refused because the plan constituted a subdivision. Section 81P of c. 41, as amended through St.1963, c. 363, § 1, provides, in relevant part, that (emphasis supplied). It is clear from the statute that, if the Costanza plan does, in fact, constitute a subdivision, the action of the planning board was correct and the decree must be reversed.
'Subdivision' as that term is used throughout the Subdivision Control Law is defined in G.L. c. 41, § 81L, as amended through St.1965, c. 61, and means 'the division of a tract of land into two or more lots and shall include resubdivision . . ..' The section further states that 'the division of a tract of land into two or more lots shall not be deemed . . . a subdivision . . . if . . . every lot within the tract so divided has frontage on . . . (b) a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law.' 1 The judge found that the Costanza plan consisted of a portion of lots shown on a definitive plan approved and indorsed by the planning board in 1960. The lots shown on such portion of this earlier plan (hereinafter referred to as the Lucci plan) and the lots shown on the Costanza plan were found to be identical. Robin Road, a proposed private way, is exhibited on both plans. The plaintiff argues that this prior approval brings it within the terms of clause (b) in G.L. c. 41, § 81L.
On September 8, 1960, Italo Lucci submitted a definitive plan to the planning board showing eighty-four lots. After a hearing on the plan, the board voted its approval thereon on November 3, 1960. The members of the board signed the plan on February 16, 1961, and it was recorded in Middlesex South registry of deeds on March 24, 1961. The plan was indorsed with the words, 'Conditionally approved in accordance with G.L. Chap. 41--Sec. 81U as shown in agreement, recorded herewith.' The agreement referred to was a covenant executed January 9, 1961, by Lucci. The covenant provided, among other things, that On March 15, 1962, a second covenant was executed by Lucci containing provisions identical with those in the earlier covenant. On the basis of this second covenant the date for completion of the ways and installation of the services was extended to March 15, 1964. Just one week after executing this second covenant, Lucci sold to the plaintiff the lots appearing on the Costanza plan.
The Subdivision Control Law is a comprehensive statutory scheme designed for the safety, convenience and welfare of the inhabitants of the cities and towns. Gordon v. Robinson Homes, Inc., 342 Mass. 529, 531, 174 N.E.2d 381. It accomplishes this purpose by, among other things, 'regulating the laying out and construction of ways in subdivisions providing access to the several lots therein . . . (and by) securing adequate provision for water, sewerage, drainage (and) underground utility services . . ..' G.L. c. 41, § 81M, as amended. General Laws c. 41, § 81U, is designed to further the overall purposes of the statute. That section as it existed at the time that the Lucci plan was submitted provided that 'Before approval of a plan, a planning board shall require provision for the construction of ways and the installation of municipal services in accordance with the rules and regulations of said board, such construction and installation to be secured by one, or in part by one and in part by the other, of . . . (two methods, (1) a bond or deposit, and (2) a covenant) which method may be selected and from time to time varied by the applicant.'
The plaintiff does not dispute the fact that it took the land subject to the Lucci covenant requiring the construction of ways and the installation of municipal services. It does claim, however, that the two-year time limitation within which the work must be completed and the provision for the automatic rescission of the approval for failure to so complete within that time are invalid. We do not agree. The Subdivision Control Law requires the local planning board to provide for ways and services. G.L. c. 41, § 81U. The execution of a covenant running with the land is specifically authorized. G.L. c. 41, § 81U. Stoner v. Planning Bd. of Agawam, Mass., 266 N.E.2d 891. a A requirement in a covenant fixing the time within which the work must be completed is, in our view, consonant...
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