Windsor v. Planning Bd. of Wayland

• Decision Date: 09 December 1988
• Docket Number: Nos. 87-1195,87-1196,s. 87-1195
• Citation: 26 Mass.App.Ct. 650,531 N.E.2d 272
• Parties: Robert WINDSOR et al. 1 v. PLANNING BOARD OF WAYLAND (and a companion case 2 ).
• Court: Appeals Court of Massachusetts

Page 272

531 N.E.2d 272

26 Mass.App.Ct. 650

Robert WINDSOR et al. ¹ v. PLANNING BOARD OF WAYLAND (and a companion case

²

).

Nos. 87-1195, 87-1196.

Appeals Court of Massachusetts,

Middlesex.

Argued Sept. 19, 1988.

Decided Dec. 9, 1988.

Edward J. Collins, Wayland, for plaintiffs.

Francis E. Jenney, Waltham, for defendants.

Before PERRETTA, KAPLAN and FINE, JJ.

KAPLAN, Justice.

These are appeals in consolidated actions arising from a proceeding under the subdivision control law. The upshot of the appeals will be that the Windsors, abutters, succeed in upsetting a subdivision plan proposed by the DeVincents, owners. This success is owing to a delay in filing on the part of the planning board which inadvertently resulted in a faulty "constructive approval" of the plan. On the merits the plan as finally evolved appears valid. Upon remand it may be hoped that the planning board will reach the merits speedily and decisively.

1. Statement. The DeVincents have long owned a 16.21 acre unimproved tract of land adjacent, in its northeast corner, to the Windsors' homestead. Access to the tract is now principally by two rights of way, each forty feet in width, off Plain Road which lies to the north. One of the rights of way runs along the westerly boundary of the Windsors' property. Under a deed from the DeVincents to the Windsors' predecessor this was reserved for a future road; it would become a road pursuant to the subdivision plan.

On February 8, 1983, the DeVincents filed a definitive subdivision plan with the planning board which pictured thirteen house lots and two roads on the rights of way. The planning board on February 17 and 24 published the required notice for a hearing on the plan. Meanwhile, on February 17, the DeVincents submitted a first revision of their plan and, on March 4, a second. Hearings before the planning board began on March 8 and continued until May 17.

On March 11 the board of health of Wayland held a hearing on the sewage, water drainage, and run-off aspects of the plan, and by letter of March 15 it reported its disapproval, based on local public health considerations, particularly a difficulty with drainage. The DeVincents on May 9 submitted a third revision to the planning board responsive to the health problem. This was forwarded to the board of health two days later. Without public notice, but with Robert Windsor in attendance, the board of health on May 26 reconsidered the plan revised as of May 9. After an engineer retained by the DeVincents spoke to the board of health and showed his hand drawing of the road elevations at the intersection of Plain Road and the road intended to run alongside the Windsors' property, Windsor asked time for his engineer to inspect the drawing, but his request was refused. Soon after the May 26 hearing, Windsor wrote to the board of health expressing a number of grievances, including the complaint that the elevations in the drawing would lead to more than the existing seasonal run-off from Plain Road to his property. ³ The DeVincents' engineer then sent a letter reiterating his testimony. On June 6 the board of health, by letter, approved the plan as of the May 9 revision, relying on the engineer's drawing and his defense of it and making specific reference to Windsor's concerns.

Robert Windsor on June 3 had written to the planning board attacking the subdivision plan in detail. (We note here that Windsor was a member of the planning board during the entire period, but in this matter he participated only as a private citizen.) A further revision of the plan was submitted by the DeVincents on June 6, and a last revision on July 5.

At its regular meeting on July 19 the planning board noted that a vote was due soon on the entire submission. This indeed was correct. To avoid a lapse of the then sixty-day statutory time limit for disposing finally of a subdivision plan, G.L. c. 41, § 81U, ⁴ the planning board had filed three notices of extension, the last filed on June 7, which brought the time limit to July 29.

On July 26 the planning board unanimously (Windsor not voting) approved the plan as revised, with fifteen stated conditions, including seven stated waivers of Wayland subdivision regulations. ⁵ Not until August 24 did the planning board record its detailed approval letter in the office of the Wayland town clerk.

As July 29 had passed without a filing in the clerk's office, the Windsors have taken the position that the plan as originally submitted had been constructively approved by force of G.L. c. 41, § 81U, but was illegal by reason of violations of regulations which remained unwaived because the approval letter was ineffective. On this view the Windsors "appealed" to the Superior Court by filing an action there on August 16 attacking the plan in the form constructively approved (as they contend) on July 29. As a backup--in case their first contention should fail--the Windsors appealed to the Superior Court by filing a second action on September 12, attacking the planning board's approval of the revised plan with conditions as filed in the clerk's office on August 24. The Superior Court actions (consolidated by order) languished on the calendar for a considerable time. Finally a judge granted summary judgment in favor of the defendants in both actions, and we review these judgments.

2. Problem of constructive approval. We agree that, as filing in the clerk's office did not occur by July 29, the subdivision plan was constructively approved as of that date.

The DeVincents argue that there was no constructive approval, that the plan with conditions became effective through the planning board's vote of final approval on July 26, and that the filing with the clerk more than a month later simply saved an objector's right to initiate his appeal to the Superior Court until twenty days following that filing. It is true that the statute, G.L. c. 41, § 81U, as in effect prior to St.1986, c. 699, § 2, uses language in a seemingly alternative sense that gives some comfort to that interpretation:

"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 approval thereof. Notice of such extension of time shall be filed forthwith by the planning board with the city or town clerk."

However, the case law expounding the text is clear and long settled--the filing must also have been accomplished by the statutory or extended date in order to avoid the consequence of a constructive approval. See Selectmen of Pembroke v. R. & P. Realty Corp., 348 Mass. 120, 125, 202 N.E.2d 409 (1964); Stoner v. Planning Bd. of Agawam, 358 Mass. 709, 714-715, 266 N.E.2d 891 (1971).

The DeVincents do not consider what should follow if constructive approval must be taken to have occurred. Since the bulk of decisions dealing with constructive approval feature a land owner who relies upon and defends a constructive approval, e.g., Kay-Vee Realty Co. v. Town Clerk of Ludlow, 355 Mass. 165, 243 N.E.2d 813 (1969), it may appear plausible to say that such approval is only for the owner's benefit, and therefore no one can complain when the owner is prepared to accept a plan less advantageous to him, here the actually approved plan with the fifteen conditions. ⁶ Perhaps the judge below went on some such theory when he allowed summary judgments in the two actions.

The theory would conflict with the systematics and policy of the subdivision control law. First, the statute is inconsistent with the idea that constructive approval is simply a boon for the owner (waivable by him). For the statute permits any aggrieved person (or municipal officer or board) to attack in court a plan constructively approved through lapse of time. [General Laws] c. 41, § 81BB, as appearing in St.1982, c. 533, § 2, provides:

"Any person, whether or not previously a party to the proceedings, or any municipal officer or board, aggrieved ... by the failure of such a board [planning board] to take final action concerning such a plan within the required time, may appeal to the superior court ... provided, that such appeal is entered ... within twenty days after the expiration of the required time...."

Abutters, such as the Windsors, may be aggrieved persons. See Selectmen of Pembroke, 348 Mass. at 127, 202 N.E.2d 409 (appeal from constructive approval of definitive subdivision plan). See also Carey v. Planning Bd. of Revere, 335 Mass. 740, 743-744, 139 N.E.2d 920 (1957) (appeal from plan becoming effective after lapse of fourteen days from "approval not required" submission under G.L. 41, § 81P). Second, the occurrence of a constructive approval renders any subsequent filing, whether of approval or disapproval of a plan, a nullity. See Selectmen of Pembroke, 348 Mass. at 128, 202 N.E.2d 409; Stoner, 358 Mass. at 715, 266 N.E.2d 891. The law aims to attain certainty in the timing of appeals. Section 81BB starts the running of the appeal period from either the filing of a certificate of final action within the statutory (or extended) period or from the deadline for such filing if filing has not occurred. Notice of the original submission by the owner, likewise, must be filed with the clerk. By recourse to the record in the clerk's office, interested parties may learn when they must initiate appeal to the court. Insistence on the values of the regularity and reliability of the record appears often in the cases. See, e.g., Stoner, 358 Mass. at 715, 266 N.E.2d 891. Cf. Building Inspector of Attleboro v. Attleboro Landfill, Inc., 384 Mass. 109, 113, 423 N.E.2d 1009 (1981). The suggestion that the owner might forgo the constructive approval and embrace effectively an approved plan later filed, would create an anomalous record, an oddity outside § 81BB with...