Loring Hills Developers Trust v. Planning Bd. of Salem

• Citation: 374 Mass. 343,372 N.E.2d 775
• Decision Date: 06 February 1978
• Court: United States State Supreme Judicial Court of Massachusetts

Page 775

372 N.E.2d 775

374 Mass. 343

LORING HILLS DEVELOPERS TRUST v. PLANNING BOARD OF SALEM.

Supreme Judicial Court of Massachusetts, Essex.

Argued Dec. 5, 1977.

Decided Feb. 6, 1978.

Timothy J. O'Keefe, Peabody (Michael D. Kelly, Boston, with him), for plaintiff.

James T. Ronan and William J. Tinti, Salem, for defendant.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER and WILKINS, JJ.

BRAUCHER, Justice.

We here review the disapproval of a subdivision plan by a board of health and a planning board under G.L. c. 41, §§ 81K-81GG, ¹ the subdivision control law. In summary, we reach the following conclusions. (1) The action of the board of health whether or not proper, amounted to a report of disapproval under § 81U, rather than a failure to report, to be "deemed approval" by the board. (2) A planning board may not override an adverse recommendation in such a report. (3) A statutory appeal under § 81BB may place in issue the validity of the recommendation of the board of health. (4) The prohibition in § 81Q against planning board regulations that "relate to the size, shape, width, frontage or use of lots within a subdivision, or to the buildings which may be constructed thereon" does not bar either board from seeking information with respect to those matters. (5) The result is that neither board exceeded its authority in disapproving the plan.

On July 3, 1974, the plaintiff filed a preliminary subdivision plan for some eighty-one acres of land in Salem. That plan complied substantially with the definition of "preliminary plan" in § 81L. On July 11, 1974, the planning board rejected the plan. Within the seven months provided in § 81Q and in G.L. c. 40A, § 7A, ² on January 31, 1975, the plaintiff filed a definitive subdivision plan. On February 27, 1975, the board of health notified the plaintiff that it could not approve the plan until specified information was obtained. After a public hearing, within an agreed extension of time, the planning board, on April 28, 1975, filed with the city clerk a certificate that it had disapproved the definitive plan for eight stated reasons. On May 14, 1975, the plaintiff filed in the Superior Court the complaint in the present action, seeking annulment of the action of the planning board and declaratory relief. No question has been raised as to the plaintiff's capacity to maintain this action.

Trial of the action in the Superior Court began on September 15, 1975, but was suspended for submission of a modified plan. On September 19, 1975, the plaintiff filed a modified definitive plan. The board of health on October 16, 1975, recommended to the planning board that the modified plan be disapproved. The board of health found that none of the lots shown on the plan could be used for building sites without injury to the public health, giving as reasons the defective condition of sewer lines affected by the subdivision and problems of drainage as to a flood prone area encompassed in the subdivision. On October 29, 1975, the planning board disapproved the modified plan, giving reasons under the headings (a) safety in ways, (b) parks and open space, (c) drainage and sanitary conditions, (d) board of health, and (e) zoning compliance.

Trial of this action was resumed in November, 1975, and the judge filed findings of fact, rulings of law, and order for judgment on January 22, 1976. The pleadings do not appear to have been amended, but the trial and the judge's findings, rulings, and order dealt with the modified definitive plan rather than the original definitive plan. The judge ruled that the report of the board of health of October 16, 1975, did not include the specific findings and reasons required by § 81U, that the proposed subdivision was to be serviced by a municipal sewerage system, and that since the required report had not been made within forty-five days after the modified plan was filed the modified plan was deemed approved by the board of health. Alternatively, he ruled that the reasons given by the board of health for recommending disapproval were beyond its authority. He also ruled that the reasons given for disapproval by the planning board exceeded its authority, except for certain inadequacies with respect to parks and open spaces.

The plaintiff filed a second modified definitive plan to comply with the judge's ruling as to parks and open spaces. The planning board disapproved that plan on the same grounds as before, except that disapproval as to parks and open spaces was modified. A final judgment was entered on February 18, 1976, declaring that the planning board exceeded its authority and annulling its action in disapproving the plan. As amended the judgment made it clear that the reference was to the second modified plan. On appeal the Appeals Court reversed the judgment, relying on its decision in FAIRBAIRN V. PLANNING BD. OF BARNSTABLE, --- MASS.APP. ---, 360 N.E.2D 668 (1977)^A. A new judgment was ordered, stating that the planning board did not exceed its authority. --- Mass.App. ---, ^b 361 N.E.2d 417 (1977). We allowed the plaintiff's application for further appellate review.

1. The "report" of the board of health. Pursuant to § 81U, the plaintiff filed with the board of health copies of its original definitive plan and of the first modified definitive plan. Under § 81U the board of health "shall report to the planning board in writing approval or disapproval of said plan, and in the event of disapproval shall make specific findings as to which, if any, of the lots shown on such plan cannot be used for building sites without injury to the public health, and include such specific findings and the reasons therefor in such report, and, where possible, shall make recommendations for the adjustment thereof, provided, however, if a municipal sewerage system will service the proposed subdivision, then failure of the board to make such a report within forty-five days after the plan is filed with their office shall be deemed approval by such board . . . . Such health board . . . shall send a copy of such report, if any, to the person who submitted said plan."

The judge ruled that the board of health, in disapproving the plaintiff's first modified plan, did not make the required findings, or include in its report the required findings and reasons, or make the required recommendations. Since the required report was not made in time, he ruled, the failure to make it was "deemed approval." That ruling was in error. Under a comparable provision of § 81U, in the absence of an agreed extension of time, a failure of the planning board to take final action on a plan within sixty days after its submission is "deemed to be an approval thereof." We have held that a disapproval by the planning board is not a nullity even though the requirements of the statute are violated. Pinecrest, Inc. v. Planning Bd. of Billerica, 350 Mass. 336, 337-339, 214 N.E.2d 868 (1966) (failure to give required notice; inadequate statement of reasons). Doliner v. Planning Bd. of Millis, 343 Mass. 1, 3-5, 175 N.E.2d 919 (1961) (failure to hold required hearing). Pieper v. Planning Bd. of Southborough, 340 Mass. 157, 161, 163 N.E.2d 14 (1959) (same). Contrast Kay-Vee Realty Co. v. Town Clerk of Ludlow, 355 Mass. 165, 168, 243 N.E.2d 813 (1969) (failure to file certificate of planning board action); Selectmen of Pembroke v. R. & P. Realty Corp., 348 Mass. 120, 124-127, 202 N.E.2d 409 (1964) (same); Paul Livoli, Inc. v. Planning Bd. of Marlborough, 347 Mass. 330, 335-336, 197 N.E.2d 785 (1964) (refusal to receive plan); PIERCE V. TOWN CLERK OF ROCHESTER, 3 MASS.APP. ---, 325 N.E.2D 300 (1975)^C (refusal to consider plan). We think the letter of the board of health dated October 16, 1975, whether or not it fully complied with § 81U, was sufficient to constitute a statutory "report" of disapproval, rather than a nullity. We do not pass on the question whether the board of health letter of February 27, 1975, stating that it could not approve the plaintiff's original definitive plan unless more information was obtained, was such a "report."

2. Review by the planning board of the board of health report. In United Reis Homes, Inc. v. Planning Bd. of Natick, 359 Mass. 621, 623, 270 N.E.2d 402, 404 (1971), we did not "speculate as to circumstances in which the planning board might properly substitute its judgment for that of the board of health." In Fairbairn v. Planning Bd. of Barnstable,--- Mass.App. ---, ---, ^d 360 N.E.2d 668, 671 (1977), however the Appeals Court said, "A planning board may not approve a subdivision plan which does not comply with the recommendation of the board of health; the planning board's options in such a case are limited to those of disapproving the plan or modifying it in such fashion as to bring it into conformity with the recommendation of the board of health." We agree. Under § 81U, if the plan "does not comply with . . . the recommendations of the health board," the planning board "shall modify and approve or shall disapprove such plan." Cf. § 81M.

3. Judicial review of the board of health report. In United Reis Homes, Inc. v. Planning Bd. of Natick, 359 Mass. 621, 623-625, 270 N.E.2d 402, 404 (1971), we had "no doubt of the power of the planning board to incorporate in its approval of a subdivision plan reasonable conditions recommended by the board of health relating to drainage." We there reviewed the findings of the trial judge, based on oral testimony, that the requirements of the board of health were not unreasonable, and we affirmed his decision because those findings were not plainly wrong. Our decision is an illustration of judicial review of recommendations of a board of health in an appeal under § 81BB from a decision of a planning board. We think the United Reis Homes case is authority for similar review of disapproval by the board of health in the present case.

In the Fairbairn case, supra, --- Mass.App. at --- - ---, ^e 360 N.E.2d 668,...