Pieper v. Planning Bd. of Southborough

• Decision Date: 17 December 1959
• Citation: 163 N.E.2d 14,340 Mass. 157
• Parties: Charles PIEPER v. PLANNING BOARD OF SOUTHBOROUGH. Charles PIEPER v. TOWN CLERK OF SOUTHBOROUGH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 14

163 N.E.2d 14

340 Mass. 157

Charles PIEPER v. PLANNING BOARD OF SOUTHBOROUGH.

Charles PIEPER v. TOWN CLERK OF SOUTHBOROUGH.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Nov. 2, 1959.

Decided Dec. 17, 1959.

Morris Shapiro, Framingham (Ashmun Brown, Framingham, with him), for plaintiff.

Alfred W. Howes, Boston, for defendants.

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

CUTTER, Justice.

These are bills in equity respectively filed on July 1, 1958, and August 18, 1958, by Pieper, a landowner, (a) against the planning board (the board) of Southborough (the town), and (b) against the town clerk, with reference to a subdivision plan filed with the board by Pieper. The cases arise under the subdivision control law, G.L. c. 41, §§ 81K to 81GG, and were submitted to the trial judge upon a statement of agreed facts. A final decree in each case dismissed the bill and declared that the board had disapproved the subdivision plan 'in sufficient compliance with the statute,' that the action of the board was proper, and that there was no necessity for the board to hold a public hearing under G.L. c. 41, § 81T (as amended through St.1957, c. 122). ¹ Pierper appealed. The cases were heard on a consolidated record in this court.

The following relevant facts are agreed. On May 28, 1958, Pieper filed the subdivision plan with the board in accordance with all requirements of § 81T. The plan and application complied with the rules and regulations of the board. No public hearing was held by the board within forty-five days ² of the filing of the application for approval. On June 19, 1958, the board sent Pieper a letter by first class mail, but not registered as required by § 81U, stating that the board 'disapproves * * * [the] definitive plan,' that the town had applied to a Federal agency for an engineering survey which would be completed in six to seven months at a cost of approximately $40,000, and that 'it is necessary to disapprove said * * * plan * * * [because] we [the board] feel it essential we have a master plan available with engineering service before approving any further subdivision of properties.' As of November 19, 1958, the survey had not been undertaken. The board did not file a formal certificate of its action with the town clerk (see § 81U) but merely delivered to him an unsigned copy of the board's letter to Pieper of June 19.

After Pieper filed his bill in equity against the board, he requested the town clerk to give him a certificate that the board had failed to take final action 'within the 45-day period provided by' § 81U and 'that the approval [of the plan] resulting from such failure * * * [had] become final.' The town clerk refused to give such a certificate. The bill in equity against the town clerk was then initiated.

On September 10, 1957, the planning board had approved, under the same rules and regulations, a similar plan of subdivision of an adjacent area, of which the present plan is an extension.

1. We interpret the provisions of §§ 81T and 81U (see footnotes 1 and 2, supra) as entitling an applicant for approval of a subdivision plan to a hearing, which must obviously take place within the forty-five day period. The two adjacent sections should plainly be read together. Section 81U provides that, after 'the hearing required in' § 81T, the 'board may approve, modify and approve, or disapprove such plan.' This sentence indicates that a hearing is contemplated before any board action, at least in the absence of waiver by the applicant of a hearing, prior to a disapproval by the board, or action by the applicant treating adverse board action taken without a hearing as final action. This indication is not overcome by the statement in § 81T (see footnote 1, supra) that '[b]efore approval * * * is given, a public hearing shall be held.' That statement is insufficient to lead us to interpret the two sections as meaning that, if the board intends to disapprove the plan in any event, it has complete discretion to dispense with a public hearing. We do not find, on such slim statutory language, any legislative intention to permit an administrative board without a hearing to deny to a landowner, who desires a hearing, important privileges relating to his property.

2. Merely because Pieper was entitled to a hearing, it does not follow that failure to afford him a hearing meant that the plan must be deemed approved under § 81U upon the expiration of forty-five days from the filing of the plan, subject to appeal within the twenty days allowed by c. 41, § 81BB (as amended through St.1957, c. 199, § 2). Section 81U does not state that disapproval of a plan, without granting a hearing (but prior to the expiration of the forty-five day period), must be treated as a nullity. We should not attribute such an intention to the Legislature unless plainly expressed. If disapproval without a hearing, intended as final action, takes place within the forty-five day period, it is final board action, at least if taken otherwise in accordance with § 81U. Those entitled to appeal to the Superior Court under § 81BB may proceed under that section following such a disapproval.

3. The board failed to comply precisely with the requirements of § 81U for filing a certificate of the board's action with the town clerk and for mailing to Pieper notice of such action by registered mail. The letter of June 19, 1958, was plainly intended to be final board action on the plan, at least until the same plan was filed again or a new plan was presented. Pieper had notice of the board's decision for he filed his bill in equity against the board on July 1, 1958. That he did not receive this notice by registered mail is, in the circumstances, unimportant. See United States for Use and Benefit of Franklin Paint Co. v. Kagan, D.C.D.Mass., 129 F.Supp. 331, 332.

We assume without deciding that the statute contemplated the filing of a somewhat formally authenticated certificate with the town clerk. Nevertheless, we need not decide whether third persons would be bound, as by a 'Certificate' of the type contemplated by § 81U, by the unsigned copy of the letter of June 19, filed by the board with the town clerk. Pieper himself treated the board's action as final by filing not only his bill in equity against the board on July 1, 1958, but also written notice of the bill with the town clerk as required by § 81BB. In his bill, he alleged that the board 'without the hearing required by * * * [s] 81T * * * disapproved the * * * plan.' Pieper made this allegation well within the forty-five day period available for board action, despite the board's earlier somewhat informal attempts to comply with the requirements of § 81U. These informalities, in the absence of Pieper's action in filing his bill, the board might have cured during the balance of the forty-five day period. Pieper, in these circumstances ³ where the informalities of the board's action affected only him, should not be heard to make the contention, inconsistent with the allegations of his bill, that this administrative action was not final board action. See City of Boston v. Nielsen, 305 Mass. 429, 432-433, 26 N.E.2d 366; Elfman v. Glaser, 313 Mass. 370, 376, 47 N.E.2d 925; Gordon v. Lewitsky, 333 Mass. 379, 381, 131 N.E.2d 174.

4. In Daley Const. Co., Inc. v. Planning Board of Randolph, Mass., 163 N.E.2d 27, we have recently considered whether a planning board may disapprove a subdivision plan on grounds other than that the plan itself is inappropriate from the standpoint of design and construction of ways, utilities in the ways, and public health considerations affecting the subdivision advanced by the board of health. We held there that the statute had not made a town water shortage a proper ground for unconditional disapproval of a plan.

Somewhat similar principles apply here. It is stipulated that the 'plan * * * complied with the rules and regulations of the * *...