3 Mass. App. Ct. 728

March 31, 1975

The petitioner has appealed from an order for judgment and a judgment dismissing his petition for a writ of mandamus to require the respondent to issue a certificate under G. L. c. 41, Section 81V, to the effect that the planning board of the town (board) has constructively approved a definitive subdivision plan submitted to it by the petitioner because of the board's failure to take final action on the plan within the sixty-day period found in the present fourth paragraph of G. L. c. 41, Section 81U. See Selectmen of Pembroke v. R. & P. Realty Corp. 348 Mass. 120 , 123, 127 (1964); Iverson v. Building Inspector of Dedham, 354 Mass. 688 , 689 (1968). The only issue litigated by the parties was the legal effect of the board's letter to the petitioner (carbon copy to the respondent) of March 14, 1973, explaining why "no action will be taken on. . .[the] plan." That letter, when considered in the light of the attendant circumstances, cannot be construed as a disapproval of the plan (contrast Pieper v. Planning Bd. of Southborough, 340 Mass. 157 , 159-160, 161, 164 [1959]; Doliner v. Planning Bd. of Millis, 343 Mass. 1 , 2-3, 5 [1961]; Pinecrest, Inc. v. Planing Bd. of Billerica, 350 Mass. 336 , 337-339 [1966]) but must be taken as a refusal to consider the plan which could and did ripen into a constructive approval thereof. Paul Livoli, Inc. v. Planning Bd. of Marlborough, 347 Mass. 330 , 332, 335-336 (1964). Kay-Vee Realty Co. Inc. v. Town Clerk of Ludlow, 355 Mass. 165 , 166-167, 168 (1969). The order for judgment and the judgment are reversed. To afford the board, if so advised, an opportunity to take action under G. L. c. 41, Section 81W, to modify, amend or rescind its constructive approval, no judgment in the petitioner's favor is to be entered until after sixty days from the date of the rescript. Kay-Vee Realty Co. Inc. v. Town Clerk of Ludlow, 355 Mass. 165 , 170 (1969).

So ordered.