FRANKLIN KELLEY & others vs. PLANNING BOARD OF DENNIS.

HALE, C.J. This is an action brought pursuant to G. L. c. 39, Section 23B, as appearing in St. 1976, c. 397, Section 6, seeking, among other things, (a) to invalidate two votes of the defendant planning board (board) which purported to deny an endorsement of "approval not required" on two plans of land which the plaintiffs had submitted to the board under G. L. c. 41, Section 81P, as appearing in St. 1963, c. 363, Section 1, and (b) a declaration of the rights and duties of the parties relative to said plans. Judgment was entered, and the plaintiffs have appealed from part 2 thereof. [Note 1]

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The plaintiffs' brief informs us that "[t]he sole issue presented by this appeal is whether the . . . judge erred in remanding the case to the . . . board to allow a full consideration of the matter on its merits." We called for and have before us the original record and have limited our consideration to the stated issue and conclude that there was no error.

We summarize the facts found by the judge. On December 3, 1976, the plaintiffs submitted a plan of land to the board for endorsement under G. L. c. 41, Section 81P (approval not required). Another plan was similarly submitted on December 9, 1976. The plans were to be considered by the board at its December 13 meeting. By agreement the matter was continued to December 20. The attorneys for the parties met by chance on December 20 and agreed to "postpone action until sometime later in the week." The judge found that the plaintiffs expected by that agreement that the matter would be taken up at the regular meeting of the board on December 27. On the morning of the twenty-seventh the plaintiffs were advised that the matter would not be considered at that night's meeting. [Note 2] Accordingly, neither the plaintiffs nor their counsel attended. As its final act of the evening the board voted to deny the requested endorsements, an action which the judge found to be an effort to comply with the time limitation found in Section 81P. [Note 3]

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Earlier on the twenty-seventh, the board had posted a notice of a special meeting to be held at 3:30 P.M. on December 30. The December 30 meeting was held, and the board again voted to deny the plaintiffs' request. At a hearing before the judge the parties agreed that the action of the board on the twenty-seventh was invalid for want of the notice required by G. L. c. 39, Section 23B. The judge ruled that the actions taken at the meeting of the twenty-seventh, although timely under Section 81P, were invalid because of the want of notice and further found and ruled that the board's action of the thirtieth was invalid, as the fourteen-day period specified in Section 81P had expired. Cassani v. Planning Board of Hull, 1 Mass. App. Ct. 451 , 456-457 (1973).

The court thereupon proceeded to fashion a remedy that on proper notice the board reconsider the plaintiffs' requests (presumably at a meeting to be held pursuant to such notice). The judgment entered disposed of all aspects of the case presented by the pleadings. The remedy included the exercise of the judge's discretionary power under Section 23B to invalidate the vote of the twenty-seventh, as well as the discretion accorded him under G. L. c. 231A, Section 3. That discretion was tempered by his ordering the return of the case to the board for reconsideration and by his reinstating the fourteen-day period in which the board should act. The plaintiffs would have us determine that as neither Section 23B nor Section 81P makes any provision for such an extension of the fourteen-day period, the judge lacked the authority to do so. They would have us strike part 2 of the judgment, leaving part 1 in place. Were we to do so, the plaintiffs would at once become entitled to the endorsement sought. This clearly was not the result the judge intended. We decline to interfere with the judge's exercise of discretion by taking that action.

We are not to be understood as approving as a general principle of law that a judge may extend the fourteen-day

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period in which the board is required to act under Section 81P. See Cassani v. Planning Board of Hull, 1 Mass. App. Ct. at 456-457; Devine v. Town Clerk of Plymouth, 3 Mass. App. Ct. 747 (1975). In this case the board did act within the fourteen-day period as extended by the agreement of the parties. Assuming, as have the parties, that the action was susceptible to attack by the plaintiffs under Section 23B, it was nonetheless open to the judge in his discretion not to invalidate the board's action. In view of that, the plaintiffs can hardly be said to have reason to complain that instead of allowing the questioned action to stand, the judge invalidated it and, as a part of a single package, returned the matter to the board, where all concerned would be afforded the opportunity to begin anew on the application for the approval under Section 81P. We recognize, and it appears that the judge did also, that the plaintiffs had no control over the board's actions as to compliance with the provisions of Section 23B. It is apparent that the judge did not desire to penalize the applicants for a failure of the board beyond their control. Compare Burwick v. Zoning Board of Appeals of Worcester, 1 Mass. App. Ct. 739 , 745 (1974). On the other hand, on the basis of the plans submitted to the board the judge may have concluded that there was some merit in the board's refusal to endorse them as requested, although that point was not decided by the judge and has not been argued before us. Thus, in the peculiar circumstances of this case, the judge's solution appears to us to be consistent with the rights of the parties.

To avoid any question as to the running of the "fourteen-day limit" set out in the judgment, part 2 thereof is to be modified by striking therefrom the words "entry of judgment in this case" and by inserting in place thereof the words "receipt by the clerk of courts of the rescript of the Appeals Court." As so modified, the judgment is affirmed.

So ordered.