Kay-Vee Realty Co. v. Town Clerk of Ludlow

• Decision Date: 07 January 1969
• Docket Number: KAY-VEE
• Citation: 243 N.E.2d 813,355 Mass. 165
• Parties: REALTY COMPANY, Inc. v. TOWN CLERK OF LUDLOW.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 813

243 N.E.2d 813

355 Mass. 165

KAY-VEE REALTY COMPANY, Inc. v. TOWN CLERK OF LUDLOW.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Oct. 30, 1968.

Decided Jan. 7, 1969.

Manuel Moutinho, Jr., Town Counsel, for respondent.

James L. Allen, Springfield, for petitioner.

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

SPALDING, Justice.

The objective of this petition for a writ of mandamus is to compel the town clerk of Ludlow to certify, in accordance with G.L. c. 41, § 81V, that the petitioner's subdivision plan has been approved. The case was heard on a statement of agreed facts.

At all times here relevant the respondent was the duly elected town clerk of Ludlow. Throughout this period the subdivision control law contained in G.L. c. 41, §§ 81K through 81GG, was in effect, the town having accepted the law. On February 14, 1966, the petitioner submitted to the planning board of the town for approval a definitive subdivision plan and filed notice of the submission with the respondent. The plan was submitted in accordance with § 810, and a copy of the plan was filed with the board of health in conformity with § 81U.

Pursuant to § 81U the planning board granted the petitioner's applications for extensions of time. The last extension was granted on April 27, 1966, in these words: 'At the request of Kay-Vee Realty Company, the Planning Board hereby grants an extension of time to May 23, 1966, so that no final action will be taken by the Board before this date.'

On May 12, 1966, eleven days before the expiration date of the last extension, the planning board sent a letter to the petitioner which read as follows: 'If nothing is received from you by May 23rd, we will have to disapprove your above-mentioned subdivision, since the Board of Health has disapproved the plan because of poor percolation and drainage. Barring any action by this date, this letter will be construed as a disapproval of said plan.' On May 13, 1966, the planning board filed with the respondent a carbon copy of this letter. Thereafter the board filed nothing further with the respondent; nor did the board advise the petitioner of any further action by it. After receiving the board's letter of May 12, the petitioner filed nothing more with the board. As of June 22, 1966, no appeal had been taken from the action or nonaction of the planning board.

After June 23, 1966, the petitioner requested the respondent as town clerk to issue a certificate pursuant to § 81V, that would state in substance that the planning board had failed to file with the respondent a certificate of its final action pertaining to the application for approval of the definitive subdivision plan and that therefore the plan was deemed to be approved by virtue of § 81U. The respondent advised the petitioner that she would not issue such a certificate. The petitioner desires to record its plan in the appropriate registry of deeds but without the certificate requested of the respondent it cannot do so. See § 81X.

On the basis of the foregoing facts, the judge ordered a writ of mandamus to issue directing the respondent under § 81V to certify that the subdivision plan has been approved. The respondent appealed.

General Laws c. 41, § 81U, as amended through St.1960, c. 266, § 2, provides in part: 'The planning board 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 such action by registered mail, postage prepaid, to the applicant at his address stated on the application. * * * Failure of the planning board either to take final action or to file with the city or town clerk a certificate of such action regarding a plan submitted by an applicant within sixty days after such submission, or such further time as may be agreed upon at the written request of the applicant, shall be deemed to be an approval thereof.' We agree with the petitioner's contention that the planning board's action did not comply with the requirements of § 81U and resulted in a constructive approval of the plan.

First, it appears that the board took no valid 'final action.' It could be argued that the letter which the board mailed to the petitioner on May 12, 1966, even though its language was conditional and prospective, constituted 'final action' under § 81U. But the extension which the planning board had granted on April 27, 1966, stated that no final action would be taken before May 23, 1966. Therefore it is doubtful that the May 12 letter was a valid final action, both because of the letter's wording and because of the time it was sent. It created an ambiguity where certainty was required.

But even if what the board did amounted to final action, the plan must be deemed approved because the board did not 'file with the * * * town clerk a certificate of such action.' § 81U. Board of Selectmen of Pembroke v. R. & P. Realty Corp., 348 Mass. 120, 202 N.E.2d 409. The carbon copy of the letter which the board filed with the respondent was not such a certificate. See Pieper v. Planning Bd. of Southborough, 340 Mass. 157, 161, 163 N.E.2d 14. A certificate has been defined as a 'written assurance, or official representation, that some act has or has not been done, or some event occurred, or some legal formality (has) been complied with.' Black's Law Dictionary (4th ed.). See Dolan v. United States, 133 F. 440, 449 (8th Cir.); United States v. Naughten, 195 F.Supp. 157 (N.D.Cal.). The filing of a certificate is required in order that all concerned may rely upon recorded action, or the absence thereof within stated times. Board of Selectmen of Pembroke v. R. & P. Realty Corp., 348 Mass. 120, 125, 202 N.E.2d 409....