McElderry v. Planning Board of Nantucket

• Decision Date: 06 April 2000
• Parties: JOHN B. McELDERRY, JR., & another v. PLANNING BOARD OF NANTUCKET.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

431 Mass. 722

729 NE 2d 1090

JOHN B. McELDERRY, JR., & another¹ v. PLANNING BOARD OF NANTUCKET.

Supreme Judicial Court of Massachusetts, Nantucket.

April 6, 2000.

June 15, 2000.

Present: MARSHALL, C.J., ABRAMS, GREANEY, IRELAND, SPINA, & COWIN, JJ.

Paul Killeen for the plaintiffs.

Kimberly M. Saillant for the defendant.

GREANEY, J.

The principal issue in this case, which we transferred to this court on our own motion, concerns whether approval of a definitive subdivision plan by a municipal planning board requires an affirmative vote by a majority of a quorum of the members of the board, or such a vote by a majority of the members of the board. We conclude that the latter is required, and as a consequence, in the absence of the requisite vote, the plaintiffs' definitive subdivision plan was disapproved. The case, however, must be remanded to the Superior Court to decide the plaintiffs' alternative claim that, if the plan has been disapproved, then the disapproval should be annulled on the merits because the disapproval was otherwise improper, and to decide the issues in a companion case, if they remain relevant.

The facts are uncontested. On November 7, 1997, the plaintiffs submitted to the planning board of Nantucket (board) for approval a definitive subdivision plan, entitled "Rosen Acres Definitive Subdivision Plan in Nantucket, Massachusetts" (plan). Approval of the plan required several waivers of the board's rules and regulations, one of which would allow the plaintiffs to construct a roadway with a 120-foot center-line radius as distinguished from a roadway with a minimum center-line radius of 200 feet. The board held a hearing to discuss the plan on December 22, 1997, and continued the hearing to February 5, 1998, and February 9, 1998.² The board consists of five regular members, but only three of the five members were present at the February 9 hearing. At that meeting, the three members deliberated the plaintiffs' application and voted, two-to-one, to grant the roadway waiver. The board then voted, again by a margin of two-to-one, to approve the plan, with specific modifications recommended by the board's engineering consultant. The chairman of the board was the one member who voted against the plan's approval.

After members voiced disagreement concerning the effect of their vote, the chairman declared that the vote constituted "a disapproval of the plan, due to the lack of approval by a majority of the board's five members. On February 13, 1998, the chairman filed a certification of the board's disapproval with the town clerk, stating that (1) a majority of the entire board was required under G. L. c. 41, § 81L, to approve any definitive subdivision plan; (2) the waiver of the minimum center-line radius requirement would have created "unsafe parallel roadways," in violation of the general purpose provisions of the board's rules and regulations; and (3) the plan violated a provision of the rules and regulations that required streets in a proposed subdivision to be "continuous" and "in alignment" with existing streets as far as practicable.

The plaintiffs brought this action in the Superior Court, pursuant to G. L. c. 41, § 81BB, claiming that the board's vote constituted approval of their plan and, if that were not so, that the board had otherwise acted improperly in disapproving the plan.³ At the same time, seven owners of land near the plaintiffs' property filed suit in the Superior Court against the plaintiffs and the board, claiming that a determination that the plan had been approved would result in several violations of the board's rules and regulations, and would violate their safe use and enjoyment of rights possessed by them. The two actions were consolidated.

The judge considered the single issue of the effect of the board's February 9 vote. Recognizing that the determination of the number of votes required for approval of a definitive subdivision plan presented a matter of first impression, the judge concluded, based on other trial court decisions and the language of G. L. c. 41, § 81L,⁴ that the board had disapproved the plan because its approval required the votes of a majority of the members of the board. Based on this conclusion, the judge did not reach the other issues raised by the plaintiffs' action or the issues raised in the action brought by the nearby landowners.

The plaintiffs appealed from the judgment embodying the judge's conclusion, claiming that (1) the board's two-to-one vote on the motion to approve their plan constituted approval of the plan; and (2) the judge erred in failing to afford the plaintiffs the de novo review to which they were entitled to decide whether, as they assert, the board's disapproval was improper on its merits.⁵

1. No appellate case has decided whether approval of a definitive subdivision plan requires the affirmative vote of a majority of a planning board's members, or whether a simple majority of a quorum of members is sufficient.⁶ The plaintiffs assert that the provisions of the subdivision control law contain no directive on this point, and as a result, the question is governed by the general rule stated in Clark v. City Council of Waltham, 328 Mass. 40, 41 (1951). In that case, ten members of an eleven-member city council voted four in favor, one opposed, and five abstaining, to confirm a mayoral appointment. Because four of eleven possible votes was not a majority, the council's president concluded that the appointment had not been confirmed, and recorded the vote accordingly. This court upheld the ruling by a Superior Court judge, on a writ of certiorari, which confirmed the questioned appointment and quashed the record to the contrary. In so doing, the court made the following statement: "The unbroken current of authority in this Commonwealth leads to the conclusion that [the judge] was right. `In the absence of statutory restriction the general rule is that the majority of a council or board is a quorum and a majority of the quorum can act.'" Id., quoting Merrill v. Lowell, 236 Mass. 463, 467 (1920).

We are satisfied that there is a "statutory restriction" in the subdivision control law. The statute sets forth a detailed procedure whereby a landowner may obtain approval to subdivide a tract of land into building lots, in order to record the approved plan, and thereby give marketability to the new lots. See Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802, 808 (1981). Section 81U authorizes a planning board to approve, modify, or disapprove a definitive subdivision plan. Section 81V details the procedure whereby, once a planning board has approved a definitive subdivision plan (or after appellate rights are determined), the board indorses the approved plan, and delivers it to the party or parties who submitted the plan.⁷ Section 81X states that no register of deeds may record any plan showing a subdivision, unless the plan bears a board's indorsement certifying that the plan has been approved, or the board's indorsement that the plan does not require approval, or, in the case of constructive approval, an appropriate certificate of the clerk of the municipality.

The intrinsic theme connecting these provisions is that an indorsement of approval requires, as § 81L expressly states, the signatures of a "majority of the members of a planning board" or such representative of the board as "its chairman or clerk or any other person" so authorized by a majority of the board. We do not consider the fact that §§ 81L, 81V, and 81X speak of indorsements, while § 81U addresses approval of the plan itself, to be of any material significance. In...