Daley Const. Co. v. Planning Bd. of Randolph

• Decision Date: 17 December 1959
• Citation: 163 N.E.2d 27,340 Mass. 149
• Parties: DALEY CONSTRUCTION CO., Inc. v. PLANNING BOARD OF RANDOLPH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 27

163 N.E.2d 27

340 Mass. 149

DALEY CONSTRUCTION CO., Inc. v. PLANNING BOARD OF RANDOLPH.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Nov. 3, 1959.

Decided Dec. 17, 1959.

Charles George, Boston, for plaintiff.

William J. Carr, Town Counsel, Boston, for defendant.

Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN, and CUTTER, JJ.

CUTTER, Justice.

This is a bill in equity brought under G.L. c. 41, § 81BB (as amended through St.1955, c. 348), by Daley Construction Co., Inc. (Daley), on January 25, 1957. It seeks relief from the disapproval by the planning board of Randolph (the board) under c. 41, § 81U (as amended through St.1955, c. 324), of a plan for the subdivision of land. The case was referred to a master whose findings are summarized below.

Daley owns land shown on a subdivision plan dated December 11, 1956, which was filed with the board on that date 'in compliance with the by-laws of the town * * * and the General Laws.' The plan had previously been approved by the town highway surveyor, by the town board of health, and, as to layout only, by the town's board of water commissioners. The water pipe layout on the plan was adequate. The town had accepted the provisions of the subdivision control law, now found in G.L. c. 41, §§ 81K to 81GG, inserted by St.1953, c. 674, § 7. On January 14, 1957, after a public hearing before the board at which no objectors appeared the board disapproved the plan apparently in reliance upon § 81M. ¹ Daley seasonably and properly filed its appeal under c. 41, § 81BB. The master's report (apart from the obscure reference, quoted above, to the 'by-laws of the town') contains no mention of the existence or contents of any local rules or regulations adopted under G.L. c. 41, § 81Q or otherwise, and, on this record, we do not know whether any rules and regulations have been adopted in Randolph, or, if some have been adopted, what they are.

The water commissioners of Randolph, Holbrook, and Braintree had determined that there was an acute shortage of water and lack of water pressure in those towns and that a fire hazard had been created. The planning board was notified of this condition on July 31, 1956. The master, after stating one of the issues as '[w]hether * * * the * * * board should approve a proper plan * * * when the * * * board has * * * notice * * * that there is an acute shortage of water and water pressure,' concluded that the board 'acted within the power given' to it by G.L. c. 41, § 81U. The master's report was confirmed and a final decree provided 'that the decision of the * * * board * * * disapproving the * * * plan * * * was within * * * [its] jurisdiction * * * and that no modification of it is required.' Daley has appealed.

1. No ground for denying approval of the plan, other than the water shortage, was mentioned in the master's report. The decree below, after a hearing de novo (see Rettig v. Planning Board of Rowley, 332 Mass. 476, 478-479, 126 N.E.2d 104), was not justified upon this record unless it was within the authority of the board to refuse approval of the plan on this ground.

The question here presented is thus whether a subdivision plan, admittedly 'a proper plan' with an adequate 'water pipe layout,' approved by appropriate town officers and boards and filed 'in compliance with the by-laws of the town' and applicable provisions of the General Laws, may be denied approval by a planning board under the subdivision control law, G.L. c. 41, §§ 81K-81GG, on the ground that its execution may accentuate an existing town water shortage. In effect, the board here has denied to the owner the opportunity to subdivide its land, not because if any impropriety in the proposed plan for its use, but because the supply of water for the town, possibly inadequate unless augmented from new sources, will be further depleted by use in the buildings to be constructed. The board's powers here asserted rest solely upon the provisions of the subdivision control law. In applying that statute the board relied on § 81M (see footnote 1, supra) and presumably, in view of the water shortage, principally upon the provision that the 'powers of a planning board * * * shall be exercised with due regard * * * for securing safety in the case of fire, flood, panic and other emergencies * * * [and] adequate provision for water, sewerage, drainage and other requirements where necessary in a subdivision * * *.'

The relevant sections of the subdivision control law as revised in St.1953, c. 674, § 7, and as later amended, have received little judicial interpretation. ² The decided cases are of slight assistance here. Legislative history, however, affords some guidance to interpretation of certain very general, and somewhat ambiguous, provisions of the law. The 1953 amendments were adopted largely upon the basis of 1953 House Doc. 2249, the report of the special commission on planning and zoning (see Res.1951, c. 55, and Res.1952, c. 89). Section 81M is, with a minor exception not here important, in the language recommended by the special commission (see its report, pages 27-28) about which it commented (at page 54), 'Section 81M is wholly new. It states the purposes and objects of the law much as is done in the zoning enabling act, so as both to assure its constitutionality and aid in its interpretation. The only purposes recognized are to provide suitable ways for access furnished with appropriate municipal utilities, and to secure sanitary conditions' (Emphasis supplied). At page 10, the commission listed as two of the principal defects in the then existing statute (to which its attention had been invited by members of the bar) '3. It is not made sufficiently clear that the application of the law is limited to regulating the design and construction of ways in subdivisions, and some well-intentioned but overzealous planning boards have attempted to use their power of approving or disapproving plans of proposed subdivisions to enforce conditions doubtless intended for the good of the public, but not relating to the design and construction of ways within subdivisions; and it is said that some town counsels [sic] have approved this usurpation of power. 4. There are provisions in the law which seem to authorize more arbitrary action by planning boards than is consistent with our ideal of a constitutional government' (Emphasis supplied). The commission also stated (at pages 11-12) as part of the 'purpose of the bill as now drawn' the following, '8. To clarify the language of the act, especially in some particulars where overzealous city planners have attempted to extend their authority to an extent greater than was intended by the farmers of the law. 9. To eliminate certain provisions that were thought to be unnecessarily arbitrary and to conform them to accepted principles of administrative law' (Emphasis supplied).

The provisions of § 81M as enacted are consistent with the statements of the special commission quoted above. The statute's purpose is to protect 'the safety, convenience and welfare of the inhabitants * * * by regulating the laying out and construction of ways * * * providing access to the several lots * * * and ensuring sanitary conditions * * *.' ³ The statute lists, among other criteria, principally considerations relating to street design as those to be weighed in the exercise of the powers of a planning board, e. g. 'the provision of adequate access * * * for lessening congestion in such ways * * * for reducing danger to life and limb in the operation of motor vehicles * * * and for co-ordinating the ways * * * with each other and with the public ways * * *.' Even the consideration of 'safety in the case of fire, flood, [or] panic' would seem to have primary reference to road design, although the suitability of lots and ways for use as such with reference to the danger of flooding may be material, a matter which we need not now consider. The general tenor of the entire section shows legislative concern primarily with (a) adequate ways to provide access furnished with appropriate facilities and (b) sanitary conditions of lots. Read in context, the words, 'securing adequate provision for water,' seem to us to mean installation of an adequate system of water pipes rather than an adequate supply of water, which, if not to be supplied from wells or other privately owned sources, is usually a matter of municipal water supply or water company action. It is not necessary, however, for us to determine whether, once the plan is approved, the owners of lots in the subdivision can later compel the provision to their premises of their share of the available town or water company water. Under our interpretation of § 81M, that matter is not presented by this record, although it has been argued that the practical difficulties of providing such water may justify the planning board's action. See discussion in Brand v. Board of Water Com'rs of Billerica, 242 Mass. 223, 228, 136 N.E. 389; Loring v. Commissioner of Pub. Works of Boston, 264 Mass. 460, 464-465, 163 N.E. 82; B & B Amusement Enterprises, Inc. v. City of Boston, 297 Mass. 307, 308, 8 N.E.2d 788; Harvard Furniture Co., Inc. v. City of Cambridge, 320 Mass. 227, 229, 68 N.E.2d 684; Reid Development Corp. v. Parsippany-Troy Hills, 10 N.J. 229, 233-237, 89 A.2d 667; McQuillin, Municipal Corporations (3d ed.) § 34.89; Rhyne,...