Home HARRY WOLK, individually and as trustee, vs. PLANNING BOARD OF STOUGHTON.

4 Mass. App. Ct. 812

May 28, 1976

There is no merit in the plaintiff's contention that the zoning by-law amendment was rendered inapplicable to his subdivision plans by G. L. c. 40A, Section 7A (as amended through St. 1965, c. 366, Section 1), as we can discern no basis in the language or history of Section 7A for permitting the two zoning "freeze" provisions in its first and second paragraphs to be combined in the "piggy-back" fashion attempted by the plaintiff. The planning board's endorsement under G. L. c. 41, Section 81P, on his "perimeter plan" served only to give him the limited protection against zoning amendments contemplated by the second paragraph of Section 7A (see Bellows Farms, Inc. v. Building Inspector of Acton, 364 Mass. 253 , 258-260 [1973]) and did not make the unamended by-law the one "in effect" for purposes of the first paragraph when he later filed his preliminary subdivision plan, as the amended by-law became the one "in effect" as soon as it had been adopted, approved and published in accordance with the procedures prescribed in G. L. c. 40A, Section 7, and G. L. c. 40, Section 32. See Ward & Johnson, Inc. v. Planning Bd. of Whitman, 343 Mass. 466 , 467 (1962); Doliner v. Planning Bd. of Millis, 349 Mass. 691 , 696-697 (1965); Chira v. Planning Bd. of Tisbury, 3 Mass. App. Ct. 433 , 437 (1975). No question of compliance with those procedures was raised in the Superior Court (see Mac-Rich Realty Constr. Inc. v. Planning Bd. of Southborough, ante, 79, 82 [1976]), and none is argued in the plaintiff's brief on appeal (see Mass.R.A.P. 16[a][4], as amended, 367 Mass. 921 [1975]). The phrase "plan first submitted" in the opening sentence of Section 7A refers only to a preliminary or definitive subdivision plan, as they are the only types of plans mentioned in that sentence. To extend the meaning of that phrase to plans described in the second paragraph of the section, as urged by the plaintiff, would require us to ignore the grammatical structure of the sentence in which it appears. See Parisi v. Gloucester, 3 Mass. App. Ct. 680 , 682 (1975). That sentence, moreover, was enacted in substantially its present form by St. 1961, c. 435, Section 2, when Section 7A made no reference whatever to other than subdivision plans; its language (and hence its intended meaning) remained unchanged when the second paragraph was added by St. 1963, c. 578. Compare Massachusetts Mut. Life Ins. Co. v. Commissioner of Corps. & Taxn. 363 Mass. 685 , 691 (1973). Judgment affirmed.


4 Mass. App. Ct. 812

June 2, 1976

The libellant, Ann Marie, was granted a decree nisi of divorce, with custody of their minor child, from her husband, Robert, on March 20, 1975. The libel was uncontested. On April 18, 1975, Ann Marie appealed from that part of the decree which ordered Robert, in effect, to reimburse the "Maynard Welfare Office" for "payments advanced by Welfare" to support Ann Marie and the child before making any payments to Ann Marie for the support of the child under a stipulation entered into by the parties. The appeal comes here without a transcript of evidence or findings of fact by the probate judge. In the circumstances all that is open is whether the decree could have been entered on the pleadings.

Page 813

Bannish v. Bannish, 357 Mass. 279 , 281 (1970). It appears from the face of the decree that the judge exceeded his authority in ordering that the Welfare Department (department) be reimbursed for support payments "advanced" prior to the entry of the decree. Where, under the provisions of G. L. c. 18, Section 21, inserted by St. 1969, c. 855, Section 12, on a petition for separate support or a libel for divorce, there is an outstanding order of support entered in a Probate Court, the department is subrogated to the rights of a recipient of support under that order and may initiate contempt proceedings where there is noncompliance with the order. In the absence of such an order the department is obliged to institute proceedings in a District Court under G. L. c. 273, Section 1. However, we are not aware of any statutory or other authority conferred upon a Probate Court to enter a retrospective order of reimbursement to the department where, as in this case, the record does not reveal that the husband and father was under any prior order of support entered in that court applicable to the period during which payments were "advanced" by the department for the support of the wife or a child. That part of the decree ordering payments by the libellee is reversed. The case is remanded to the Probate Court for a hearing anew on the question of support for the minor child after further notice to both parties. If as a result of that hearing an order of support for the child is entered against Robert and it appears that Ann Marie is then receiving support for the child from the department, the court shall direct that notice of the order be given to the department.

So ordered.