14 Mass. App. Ct. 950

July 16, 1982

This is an action in the nature of mandamus to compel the planning board to endorse its approval on a definitive subdivision plan submitted to it on March 14, 1980. The plaintiff appeals from a judgment dismissing the action. His contention is that the planning board gave its conditional approval to the plan by vote on November 14, 1974, and so notified the town clerk the next day. See G. L. c. 41, Section 81U, second par., as in effect prior to St. 1978, c. 422, Section 1. The plaintiff's March 14, 1980, submission purported to be in compliance with the conditions, and the purpose of the submission was to secure an endorsement based on the November 14, 1974, vote, rather than to secure approval of the March 14, 1980, plan independently from the 1974 proceeding. The reason is that in 1975 the town amended its zoning by-law in a manner that precluded multifamily dwellings as matter of right in the district in which the plaintiff's land lies, and he wishes to take advantage of the seven-year "freeze" period given by G. L. c. 40A, Section 6, fifth par., inserted by St. 1975, c. 808, Section 3, to plans submitted and approved before January 1, 1976. Such a freeze, if the words of the statute are to be taken literally, would run not from the date of approval but "from the date of the endorsement of such approval."

The judge, and the board before him, did not err in ruling that the plaintiff was not entitled to an endorsement of approval based on the board's 1974 action. That action was not in legal effect an approval. The conditions attached to the so called "approval" required that the plaintiff submit to the board a revised plan with various changes and plainly indicated that the revised plan was to be subject to discretionary approval by the board at that time. The 1974 decision was doubtless a "final action" as that term is used in Section 81U, fourth par., and thus did not result in a constructive approval, for the reasons explained in Planning Bd. of Falmouth v. Board of Appeals of Falmouth, 5 Mass. App. Ct. 324 , 327-328 (1977). The 1974 decision was subject to appeal at that time: its lack of definitiveness went to the validity, not the finality, of the board's action. Compare Weld v. Board of Appeals of Gloucester, 345 Mass. 376 , 378-379 (1963). Despite the board's use of an "approved-with-conditions" format, the 1974 action was in effect a disapproval of the plan as submitted. The

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plaintiff does not at this time seek to have the board review the 1980 plan as an original submission.

Judgment affirmed.