MISC 123387

December 14, 1987

Norfolk, ss.



The plaintiff John P. McIntyre of Dover, in the County of Norfolk, has moved for judgment on the pleadings in this action brought to determine the applicability of the provisions of Section 5.3.3 of the Zoning ByLaw of the Town of Dover, as amended by said Town on May 5, 1986. The plaintiff prays that this Court determine, pursuant to the provisions of c. 231A, that the plan submitted by him on April 17, 1987 for endorsement under the subdivision control law, G.L. c. 41, §81P, "approval under the subdivision control law not required" was entitled to such an endorsement forthwith, and in any event prior to May 1, 1987; that the Court further determine that the provisions of Section 5.3.3 of the Dover Zoning ByLaw, as amended in 1986, do not apply to the lots shown on said plan as Lots 3F, 3G, 3H, 3I and 3J thereon; and that the minimum lot frontage applicable to Lots 3F, 3G, 3H, 3I and 3J is forty (40) feet. The defendant Board disagrees with the interpretation of the ByLaw for which the plaintiff argues and contends that the frontage requirements adopted in 1986 apply to the lots shown on the plan submitted to the Board.

On November 24, the plaintiff's motion for judgment on the pleadings was argued by counsel, and at that time, the motion was taken under advisement by the Court. There is no dispute as to the facts applicable to this action, and no evidence outside of the pleadings was considered by the Court so that the motion properly may be treated as one for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c), rather than as a motion for summary judgment. Canter v. Planning Bd. of Westborough, 7 Mass. App. Ct. 805 , 808 (1979) (Canter II). In Section 5.3.3 of the Dover Zoning By-Law are found the provisions relative to the required street frontage as revised at the annual town meeting, May 5, 1986. The entire provision as now in effect reads as follows:

5.3.3 Street Frontage Exception

A lot shall be deemed to have the required street frontage under Schedule 5.2 if:

(1) It is large enough in any part thereof to contain a perfect square in accordance with Schedule 5.2, and

(2) It has either:

(a) frontage of at least 100 feet on:

(i) a public way or

(ii) a way which has been approved by the Planning Board as part of a subdivision plan, prior to January 1, 1965, or

(iii) a pre-existing way, or

(b) access to such a way over a strip of land or right of way (and specific approval for the use of such access is given by the Planning Board) provided, however, that any lot shown on a plan requiring approval under the subdivision control law shall have "frontage'' on a way shown on said plan at least equal to the minimum required.

The Planning Board may approve the access required under alternative (b) above, if, in the opinion of the Board:

(aa) it is wide enough, and

(bb) it is otherwise satisfactory for a driveway, and

(cc) no other more satisfactory access is available.

Any new lot created on a plan after May 1, 1987 or any lot shown on a plan recorded in the Registry of Deeds after May 1, 1987 must have a minimum frontage of at least 100 feet under alternative (2) (a) above.

Any lot approved by the Planning Board before May 1, 1987 or any lot shown as a separate lot on a deed or a plan duly recorded in the Registry of Deeds before May 1, 1987 shall only require a minimum frontage of at least 40 feet under alternative (2) (a) above, and after May 1, 1987 any such lot shall be deemed to have the frontage required under alternative (2) (a) if it has at least 40 feet of frontage and is otherwise in compliance with this bylaw. (emphasis supplied)

On April 17, 1987 the plaintiff submitted to the Dover Town Clerk and the defendant Planning Board for ANR endorsement pursuant to the provisions of G.L. c. 41, §81P of the subdivision control law, a plan showing Lots 3F, 3G, 3H, 3I and 3J to which he either held title or a recorded option to purchase. Said §81P provides that if the planning board finds that a plan does not require approval under the subdivision control law:

it shall forthwith, without a public hearing, endorse thereon or cause to be endorsed thereon by a person authorized by it the words "approval under the subdivision control law not required" or words of similar import with appropriate name or names signed thereto, and such endorsement shall be conclusive on all persons. Such endorsement shall not be withheld unless such plan show a subdivision. If the board shall determine that in its opinion the plan requires approval, it shall within fourteen days of such submittal, give written notice of its determination to the clerk of the city or town and the person submitting the plan, and such person may submit his plan for approval as provided by law and the rules and regulations of the board, or he may appeal from the determination of the board in the manner provided in section eighty-one BB. If the board fails to act upon a plan submitted under this section or fails to notify the clerk of the city or town and the person submitting the plan of its action within fourteen days after its submission, it shall be deemed to have determined that approval under the subdivision control law is not required, and it shall forthwith make such endorsement on said plan, and on its failure to do so forthwith the city or town clerk shall issue a certificate to the same effect.

The defendant Planning Board failed to endorse the plaintiff's plan within fourteen days of its submittal, and therefore, under §81P, was deemed to have determined that approval under the subdivision control law was not required. The Town Clerk on May 4, 1987 issued a certificate to that effect. The plaintiff seeks to impose on the Board a duty to act more expeditiously than the fourteen days which the statute permits before a plan is deemed to have been approved. The matter is crucial in the present proceeding for the fourteen day period expired on May 1, 1987 and accordingly, on May 2, 1987, being the next business day thereafter, the plan was deemed to be entitled to the endorsement which the plaintiff sought, but this was too late for the plaintiff's plan to qualify for the "grandfather" protection factored into the 1986 amendment.

The question then arises as to whether the Board, which was under the statutory obligation to proceed to endorse the plan "forthwith", can be held to have breached this duty by its failure to act during the fourteen day period. This matter has not previously been decided directly, but the decision of Cassani v. Planning Board of Hull, 1 Mass. App. Ct. 451 (1973), strongly suggests that the Board has a fourteen day period in which to act. Id. at 456-457 citing Carey v. Planning Board of Revere, 335 Mass. 740 , 743 (1957). The discussion in Cassani of a planning board's power to rescind its endorsement is helpful in considering whether the board may be deemed to have breached the statutory duty to act "forthwith" before the expiration of the fourteen day period set by the General Court for constructive approval. Id. While it often may be desirable for a board to so act, where feasible, the statute does not penalize it for failure to do so. In view of the increasing case load of planning boards and the problems engendered by cases concerning the propriety of an ANR endorsement, it would be difficult, in many instances, for the board to respond earlier. See, e.g., Fox v. Planning Board of Milton, 24 Mass. App. Ct. 572 (1987); Gifford v. Planning Board of Nantucket, 376 Mass. 801 (1978) (particularly relevant here); Hutchinson v. Planning Board of Hingham, 23 Mass. App. Ct. 416 (1987). The Dover Planning Board in reviewing a plan such as that submitted by the plaintiff, obviously needed the entire statutory period of review, particularly, in view of the plethora of filings which may have been prompted by the May 1, 1987 deadline. In the absence of statutory ambiguity, a finding that "forthwith" shall constitute less than fourteen days is properly the domain of legislative amendment rather than judicial decision. See Cassani, 1 Mass. App. Ct. at 455; Boylston Water District v. Tahanto Regional School District, 353 Mass. 81 , 84 (1967).

The 1986 amendment to the ByLaw provides that the grace period for the increase of the required frontage from 40 to 100 feet expired on May 1, 1987, the same date on which the Planning Board would have been required to act on the plaintiff's plan to meet the fourteen day requirement. The ByLaw as so amended requires that "any new lot created on a plan," or "shown on a plan recorded," after May 1, 1987 is required to have a minimum frontage of at least 100 feet. The lots on the plaintiff's plan were created after May 1, 1987 since the plan was not constructively approved until the following day, May 2, 1987, and clearly was not recorded until after the deadline set forth in the ByLaw.

On the pleadings, I further find and rule that the plaintiff's plan may be recorded with the Norfolk County Registry of Deeds inasmuch as the Town Clerk has issued the appropriate certificate, see Smalley v. Planning Board of Harwich, 10 Mass. App. Ct. 599 (1980), but that not all of the lots shown thereon comply with the frontage requirements of the Dover Zoning ByLaw, as amended on May 5, 1986 since the "grandfather" provisions expired prior to the constructive approval of the plan and that therefore the frontage requirement applicable to the land in question is at least 100 feet.

By the Court