MISC 122049

April 6, 1989

Bristol, ss.



This is an appeal by the plaintiffs, Robrik Associates, Inc. and the Moorhead Corporation, under G.L. c. 41, § 81BB, from a decision of the Planning Board of the Town of Dartmouth. The appealed decision denied the plaintiffs' application for definitive plan approval of a subdivision known as "Millbrook". The plaintiffs filed a joint motion for summary judgment and the parties submitted stipulations of facts with attached exhibits and documents. The Friends of Russells Mills (FORM), an incorporated, non-profit public interest group concerned with development in the area, moved for leave to file an amicus curiae brief, and its motion, after hearing counsel for the defendant assure the court that he would present the legal position of FORM, was denied. I find that the following are the undisputed facts:

1. The plaintiff Robrik Associates, Inc. (Robrik) is a corporation duly organized under the laws of the Commonwealth of Massachusetts. It has a principal place of business at 109 Rhode Island Road, Lakeville, Plymouth County, Massachusetts.

2. The plaintiff Moorehead Corporation (Moorehead) is a corporation duly organized under the laws of the Commonwealth of Massachusetts. It has a principal place of business at 107 Slade Corner Road, Dartmouth, Bristol County, Massachusetts. It owns the land upon which the plaintiffs propose to construct the Millbrook subdivision.

3. The defendant Planning Board of the Town of Dartmouth (the planning board) is the municipal agency with powers of subdivision control pursuant to the subdivision control law, G.L. c. 41, § 81K et seq.

4. The planning board held a duly noticed public hearing on January 6, 1986, the subject of which was a proposed amendment to the zoning map of the zoning by-laws of Dartmouth whereby a certain described area, in which the proposed subdivision was located, would be changed from a Single Residence A District, requiring a minimum lot size of 40,000 square feet, to a Single Residence B District, requiring a minimum lot size of 80,000 square feet.

5. The following week, on January 13, 1986, the planning board held a duly noticed public hearing at which the board voted unanimously to recommend passage of the aforementioned zoning amendment at the special town meeting to be held January 14, 1986.

6. On January 14, 1986, at 3:58 P.M., the plaintiffs submitted to the Dartmouth town clerk a "FORM B", addressed to the Dartmouth Planning Board, and entitled "Application for Approval of Preliminary Plan" and accompanied by a preliminary plan for a subdivision call ed "The Village at Russells Mills," which name later was changed to "Millbrook." [Note l] The town clerk's office was regularly open for the transaction of business on week days until 4:30 p.m. On the plan, lots were laid out in accordance with a 40,000 square foot minimum lot size requirement for the residentially zoned area concerned.

7. On the same day, January 14, 1986, at 11:08 P.M., it was duly voted at a special town meeting to amend the zoning map of the zoning by laws of the town by changing the area which included the proposed Millbrook subdivision from Single Residence A to Single Residence B, thereby increasing the requisite minimum lot size for the area concerned from 40,000 square feet to 80,000 square feet.

8. This zoning by-law change was subsequently approved by the attorney general on March 4, 1986.

9. The plan submitted by the plaintiffs on January 14, 1986, at 3:58 P.M., and the revisions subsequent thereto all adhere to the 40,000 square foot minimum lot size rather than the 80,000 square foot minimum lot size.

10. The planning board considered the Millbrook subdivision at several further meetings during 1986. On July 10, 1986, the plaintiffs filed definitive subdivision plans which the planning board disapproved on September 4, 1986 for numerous reasons. In light of the planning board's concerns, the plaintiffs revised their definitive plans and resubmitted them on November 3, 1986. The revised plans were considered at a hearing held December 1, 1986, and further revisions were made on December 5, 1986. Following a public hearing on December 22, 1986, the planning board again voted to disapprove the plaintiffs' definitive plans. The planning board's decision, dated December 23, 1986, stated that the revised plans addressed all listed noncompliances except for compliance with the minimum standards of the Single Residence B zoning district. At the hearing on the instant motion for summary judgment, all counsel agreed that the planning board's final disapproval was based solely on its position that the plaintiffs had not filed their preliminary plan in time to benefit from a "freeze" of the Single Residence A zoning requirements, specifically the 40,000 square foot minimum lot size. [Note 2]

11. The plaintiffs' filing of a definitive plan on July 10, 1986, followed by certain requested revisions on November 3, 1986 and on December 5, 1986, comply with the requirements of G.L. c.40a, § 6 regarding the filing of a definitive plan within seven months of the filing of a preliminary plan.

After reviewing the pleadings, stipulations, admissions and other matters entitled to consideration under Mass. R. Civ. P. 56, I rule that there is no genuine issue of material fact and that the case therefore is ripe for summary judgment. See Community National Bank v. Dawes, 369 Mass. 550 (1976).

No material fact being in dispute, the court is left with a single question of l aw: how should ostensibly conflicting provisions of G .L. c. 40A be reconciled? On the one hand, c. 40A, § 6 provides in part that

[i]f a definitive plan, or a preliminary plan followed within seven months by a definitive plan, is submitted to a planning board for approval under the subdivision control law, and written notice of such submission has been given to the city or town clerk before the effective date of the ordinance or by-law, the land shown on such plan shall be governed by the applicable provisions of the zoning ordinance or by-law, if any, in effect at the time of the first such submission while such plan or plans are being processed under the subdivision control law . . . (emphasis added).

On the other hand, c. 40A, § 5 provides in part that, if subsequently approved by the attorney general and properly published,

[t]he effective date of the adoption or amendment of any zoning ordinance or by-law shall be the date on which such adoption or amendment was voted upon by a city council or town meeting . . . (emphasis added).

The plaintiffs argue that their filing of a preliminary plan at 3:58 P.M. on January 14, 1986 entitles them to the "zoning freeze" protection of section 6, and that therefore the minimum lot size requirement they must comply with is the one in effect at the time they filed their plan, that is, 40,000 square feet and not the requirement of 80,000 square feet approved by the special town meeting later the same day at 11:08 P.M. The defendant town argues that under section 5 zoning amendments are effective as of the date they are voted on by the town meeting, and that because the minimum lot size requirement was raised to 80,000 square feet on January 14, 1986, the plaintiffs would have had to file their preliminary plan the day before to obtain a "freeze" of the 40,000 square foot provision.

Perhaps the most basic rule of statutory construction is that a court must interpret a law so as to effectuate the intent of the legislature in enacting it. See International Organization of Masters, Mates and Pilots, Atlantic and Gulf Maritime Region, AFL-CIO v. Woods Hole, Martha's Vineyard and Nantucket S.S. Authority, 392 Mass. 811 , 813 (1984). This intent is to be discerned from the ordinary meaning of the words in the statute, considered in the context of the objectives the law seeks to fulfill. See Randall's Case, 331 Mass. 383 , 385 (1954). Where there is any contradiction in the statute, the court should interpret the statute, if possible, so as to make it an effectual piece of legislation in harmony with common sense and sound reason. Larkin v. Charlestown Sav. Bank, 7 Mass. App. Ct. 178 , 183 (1979). Absurd results should be avoided. Petition of Curran, 314 Mass. 91 , 95 (1943).

As applied to the facts of the instant case, those provisions of section 5 and section 6 of G.L. c.40A relating to "time" and "date" appear to be inconsistent. Looking to the intent of the legislature, as indicated by the plain meaning of the relevant provision of section 6, it is clear that that provision is intended to protect the developer who, in reliance on existing zoning provisions, expends time and money producing a plan for development of a subdivision. See Falcone v. Zoning Bd. of Appeals of Brockton, 7 Mass. App. Ct. 710 , 712 (1979). It is equally clear that section 5 is intended to provide immediate effect for amendments to zoning ordinances and by-laws, while at the same time establishing the date from which other statutory provisions, such as the 120 day appeal period set forth later in section 5, are to be counted. Section 6 can be construed so that in order to gain the protection of the zoning freeze, it would be necessary to file notice of submission with the city or town clerk "before the effective date of" a new ordinance or by 1aw, and then subsequently submit at least a preliminary plan to the planning board before the effective time of the new zoning change. Such a requirement would be absurd in light of the provisions of G.L. c. 41, § 810, wherein the submittal requirement for section 6 may be satisfied by simply submitting such plans to the city or town clerk addressed to the Planning Board. While the above referenced provision of section 6 contains an inherent ambiguity, that provision becomes even more ambiguous when applied with the provision of section 5 relating to the effective "date" of ordinances and by-1aws. It has been held that when a statute contains two provisions that, read separately, address different and somewhat conflicting interests, to understand the meaning of the two provisions together, a court must read at least one, and perhaps both, as necessarily subject to some implicit exceptions. United States v. Vest, 639 F. Supp. 899, 909 (D. Mass. 1986), aff'd, 813 F. 2d 477 (1987).

Here, these apparently conflicting provisions can be construed harmoniously, in accordance with common sense and sound reason. Looking to the legislative intent of the statute as a whole, the court rules that in the narrow factual situation presented, where a preliminary plan is duly filed under G.L. c. 40A, § 6, and a zoning ordinance or by-law bearing on that plan is amended later the same day, the general language of section 5 ("date") is necessarily subject to an implicit exception based on the more specific language of section 6 ("time"). Thus, with respect to the plaintiffs' definitive plan, which evolved from the preliminary plan filed at 3:58 p.m. on January 14, 1986, I rule that the applicable zoning is that in force at the time the preliminary plan was filed namely the minimum lot size requirement of 40,000 square feet. The court sees no disruptive conflict between this ruling and the notion that the effective date of a zoning amendment is the date of its passage by the appropriate municipal body. This ruling avoids rendering the word "time" in section 5 superfluous, as would result under the defendant's theory in this case, and obviates the need to give what in essence is retroactive effect to the zoning amendment, making it effective just after midnight on January 14, 1986. Neither of these results is favored by our case law. See, e.g., Com. v. Woods Hole, Martha's Vineyard and Nantucket S. S. Authority, 352 Mass. 617 , 618 (1967) (none of words in statute to be regarded as superfluous); Adamowicz v. Town of Ipswich, 395 Mass. 757 , 764 (1985) (statutes operate prospectively unless contrary legislative intent clearly shown). Moreover, our decision is in accord with that of the Worcester Superior Court in Santoro v. Ruhan, Civil Action No. 87-2353 (November 19, 1987), where, presented with a virtually identical fact situation, the court allowed the plaintiffs' motion for summary judgment.

In view of the fact that the defendant planning board incorrectly applied the 80,000 square foot minimum lot size requirement as opposed to the 40,000 square foot requirement, in its December 23, 1986 disapproval of the plaintiffs' resubmitted definitive plan, I rule that the defendant planning board exceeded its authority in disapproving the plan based on that sole reason, and therefore, the plaintiffs' joint motion for summary judgment is allowed and this matter is remanded to the Dartmouth Planning Board in order for the board to have an opportunity to reconsider the plaintiffs' resubmitted definitive plan in accordance with the principles set forth in this Decision, and also to ensure compliance with the conditions noted on the Certificate of Disapproval, issued on December 23, 1986. Jurisdiction is retained.

Order accordingly.


[Note l] G. L. c. 40A, § 6 requires that a "definitive plan, or a preliminary plan followed within seven months by a definitive plan, [be] submitted to a planning board for approval under the subdivision control law, and written notice of such submission [be] given to the city or town clerk before the effective date of the ordinance or by-law . . ." (emphasis added). G.L. c. 41, § 810, however, provides that "[a] plan shall be submitted under this section when delivered at a meeting of the board or when sent by registered mail to the planning board, care of the city or town clerk. If so mailed, the date of mailing shall be the date of submission." (emphasis added). Hand delivery to the city clerk will also satisfy the submission requirements of G.L. c.41, § 810. See Cullen v. Hadley, 4 Mass. App. Ct. 842 (1976). Therefore, the fact that the plaintiffs made their submissions to the town clerk, in hand, satisfies the apparent duel notice requirement of section 6. Except for contesting the timeliness of the filing, the defendant does not contest compliance by the plaintiffs with the submission requirements of G.L. c.40A, § 6.

[Note 2] It should be noted that while the planning board's decision cited only noncompliance with zoning as the reason for its disapproval of the definitive plans, it listed several conditions that further revised plans would have to meet should the zoning noncompliance be corrected.