10 Mass. App. Ct. 483

May 12, 1980 - September 8, 1980

Essex County

Present: HALE, C.J., KASS, & NOLAN, JJ.

Where a city's board of health had reported to a planning board that it had approved a subdivision plan which was apparently submitted to it pursuant to G. L. c. 41, Section 81S, but, subsequent to the planning board's disapproval of the plan for the reason of potential water pollution, the board of health communicated an apparent recantation of its approval, although the approval was not formally rescinded under the provisions of c. 41, Section 81W, the application for subdivision approval was remanded to the planning board for submission to the board of health for consideration as provided in c. 41, Section 81U. [484-488]

CIVIL ACTION commenced in the Superior Court Department on June 18, 1979.

The case was heard by Bennett, J., on motions for summary judgment.

Richard B. Jones, City Solicitor, for the defendant.

David Berman for the plaintiff.

KASS, J. Because the proposed development might endanger a municipal water source, the planning board of Newburyport (planning board) disapproved the plaintiff's definitive plan. G. L. c. 41, Sections 81O, 81U. Aggrieved, the plaintiff appealed under G. L. c. 41, Section 81BB. The plaintiff's motion for judgment on the pleadings and the defendant's cross motion for summary judgment [Note 1] put the

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question whether the planning board had the authority to reject the plan for the reason of potential water pollution after the board of health of Newburyport (board of health) had approved it. The judge decided that issue adversely to the planning board.

In view of the procedures invoked by the parties to present the case, we may take the relevant facts from the pleadings and supporting affidavits. The board of health reported to the planning board on November 20, 1978, that it had approved the plaintiff's plan, subject to a condition about tie-in to public sewerage. Application for approval of a definitive plan was made on April 6, 1979, and the record does not disclose why the board of health had acted five months earlier. We are left to infer that the plan came to the attention of the board of health in the first instance through the submission of a plan for preliminary approval under G. L. c. 41, Section 81S, as amended through St. 1964, c. 105, Section 1. At some time while the definitive plan was before the planning board, the board of health appears to have made a recantation of its approval. That board, however, never formally rescinded its original approval, which was made by its director, and the only indications in the record of the board of health's change of view appear from affidavits to that effect filed by the members of the board and by its director in connection with the litigation which ensued, i.e., after the planning board had acted. The planning board has not questioned whether an approval of a preliminary plan may satisfy the requirement of report of the board of health which appears in G. L. c. 41, Section 81U, as amended through St. 1978, c. 422, Sections 1 and 2 (relating to definitive plans). For purposes of this decision we assume that it does, without so deciding.

The motion judge rested his decision on two propositions: first, that a planning board lacks jurisdiction over drainage

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impact outside the boundaries of a subdivision; and second, that no regulation of the planning board dealt with drainage impact outside boundaries of a subdivision except in cases where such impact would result from changes in the natural contours of the land. He found that the planning board's decision in the instant case indicated no proposed change in contours. In so deciding the judge relied on our opinion in Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. 171 (1977). We observed in that case that "the determination of all health questions with respect to the disposal of sewage in a subdivision . . . is vested exclusively in the board of health." Id. at 176 [Note 2] (emphasis supplied). We also said in Fairbairn that the danger of pollution to adjoining land from surface water run-off could not be a ground of refusal by a planning board where no rule or regulation of the board justified rejection for such a reason. At 177.

Fairbairn did not say, therefore, as the motion judge wrote and the plaintiff argues, that the potential polluting effect of a subdivision's drainage system is no concern of a planning board. While a planning board may not act on the basis of generalized community concerns, however real (see Daley Constr. Co. v. Planning Bd. of Randolph, 340 Mass. 149 , 152-156 [1959]; Pieper v. Planning Bd. of Southborough, 340 Mass. 157 , 162-164 [1959]; Canter v. Planning Bd. of Westborough, 4 Mass. App. Ct. 306 , 308 [1976]; contrast Hamilton v. Planning Bd. of Lexington, 4 Mass. App. Ct. 802 , 803 [1976]), it may enact a regulation concerning the prevention of adverse impact from the drainage system of a subdivision on property beyond the boundaries of the subdivision. See Lyman v. Planning Bd. of Winchester, 352 Mass. 209 , 212-213 (1967), and cases cited in n.6; United Reis Homes, Inc. v. Planning Bd. of Natick, 359 Mass. 621 , 625 (1971). The planning board's

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difficulty is that it has not called to attention any regulation which does so.

We turn next to the status of the board of health's approval of the subdivision plan. Such an approval is binding on a planning board as to those subjects channeled by statute for board of health review. Patelle v. Planning Bd. of Woburn, 6 Mass. App. Ct. 951 (1978). See also Baker v. Planning Bd. of Framingham, 353 Mass. 141 , 144-145 (1967); Loring Hills Developers Trust v. Planning Bd. of Salem, 374 Mass. 343 , 348 (1978); Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. at 173-174. It is within the board of health's power to make reasonable conditions relating to drainage. United Reis Homes, Inc. v. Planning Bd. of Natick, 359 Mass. at 623.

Except for the board of health's approval dated November 20, 1978, nothing by way of communication appeared from the board of health until after the planning board had refused to approve the definitive plan because the project, if built as shown, might pollute Newburyport's Well No.2. We do not think that the affidavit filed in court by the board of health or the affidavit filed in court by the director of the health department of Newburyport, each of which registers unmistakable disapproval of the plaintiff's definitive plan, qualifies as a rescission of the earlier approval. Contrast Loring Hills Developers Trust v. Planning Bd. of Salem, 374 Mass. at 348 (report disapproving a plan under Section 81U which did not comply with statutory requirements was not a nullity).

Both the timing and the procedural circumstances surrounding the affidavits deprive them of standing as an official action of the board of health. Formulation by a board of health of its report under G. L. c. 41, Section 81U, "involves a process which is adjudicatory" and such a board is "constitutionally required to afford a developer a measure of procedural due process prior to formulating an adverse recommendation to a planning board." Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. at 181-182, and cases cited.

In the case at bar, the board of health first gave its approval on the basis of the plaintiff-developer's plans and

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engineering data. What caused the board to reverse its field is unknown, although one infers from the record that an alarm was sounded by the board of water commissioners of Newburyport. To the extent the water commissioners and the board of health acted on engineering data which pointed to different conclusions from those to be drawn from data submitted by the plaintiff, the plaintiff was entitled to a hearing at which he might rebut such other data, or the conclusions to be drawn from them. An administrative agency may not make a decision on the basis of evidence obtained after the close of the administrative proceeding, see Norway Cafe, Inc. v. Alcoholic Beverages Control Commn., 7 Mass. App. Ct. 37 , 39 (1979), so surely it may not reverse a decision on the basis of evidence so obtained, as the board of health did in this case.

This is not to say that an administrative agency may not reverse itself. Due process does not require that an agency must bind itself to an error in perpetuity irrespective of the public interest. But an agency cannot revoke an approval without notice to, and an opportunity to be heard by, the parties affected. See Cassani v. Planning Bd. of Hull, 1 Mass. App. Ct. 451 , 453, 456 (1973). See also Davis, Administrative Law Section 18.09 (1958 ed.). We note that it is open to the planning board under G. L. c. 41, Section 81W, to rescind its approval of a plan. When a planning board embarks on such a course, Section 81W provides, "All of the provisions of the subdivision control law relating to the submission and approval of a plan of a subdivision shall, so far as apt, be applicable to the . . . rescission of such approval." Within that category of provisions are those appearing in Section 81U which require a submission to the board of health for a report and recommendation. It would, thus, be possible for the planning board in this case to approve the plaintiff's application on the basis of the record before it and then, forthwith, to reopen the proceedings under Section 81W on the basis of the material served up by the water commissioners. There would be no point to such convoluted and unseemly proceedings. It will best serve the parties if the definitive

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plan is submitted to the board of health for consideration as provided in Section 81U, a step never taken, for all that appears from the record. See Doeblin v. Tinkham Dev. Corp., 7 Mass. App. Ct. 720 , 721 (1979). If, after studying the definitive plan, the board of health "is disposed to disapprove the plan or to approve it subject to conditions which have not been agreed to by the developer, the board must honor the developer's request for a hearing and give him reasonable notice of the time and place thereof. The developer must be advised of all the facts and other material in the possession of the board [of health] on which it intends to rely, and he must be given the opportunity to produce all relevant evidence, to cross examine witnesses, and to present argument." Fairbairn v. Planning Bd. of Barnstable, 5 Mass. App. Ct. at 182.

The judgment shall be modified to provide that the plaintiff's application for subdivision approval shall be remanded to the planning board for further proceedings, including a submission to the board of health. The Superior Court may set the date for the commencement of proceedings before the board of health.

So ordered.


[Note 1] The parties and the motion judge treated the case as presented on cross motions for summary judgment. The plaintiff's motion for judgment on the pleadings was converted to a motion for summary judgment. Mass.R.Civ.P. 12(c), 365 Mass. 756 (1974). While neither the docket nor the record appendix reflects the filing of a motion for summary judgment by the defendant, such a motion was argued and was ruled upon by the judge.

[Note 2] An amendment to Section 81U made by St. 1978, c. 422, Section 1, eliminated a clause which limited the consequence of a failure of the board to report on an application for approval of a definitive plan within forty-five days to subdivisions which tied into existing public sewers.