This is a matter involving the disapproval without hearing by the Defendant Planning Board of the Town of Tyngsborough ("Board") of the Plaintiffs' Amended Definitive Subdivision Plan ("Amended Plan") dated October 26, 1987, revised February 17, 1988, and submitted to the Board on March 14, 1985. The determinative issue is whether the Town's Zoning By-law ("By-law") in effect on March 27, 1987 or the By-law as amended in May of 1987 governs the Amended Plan.
This cause came on to be heard on November 16, 1988. Arguments of counsel, affidavits and various pleadings have been considered. I find and rule that as to the matters set forth herein, there are no genuine issues of material fact and therefore, the case is ripe for summary judgment pursuant to Mass. R. Civ. P. 56, Community National Bank v. Dawes, 369 Mass. 550 (1976).
I find the following facts to be pertinent and undisputed:
1. The Plaintiffs are the owners of approximately eighty-three (83) acres of land on the northerly side of Westford Road in Tyngsborough ("Locus").
2. On March 27, 1987, the Plaintiffs filed an Application for Approval of Preliminary Plan for Locus followed on October 27, 1987 by an Application for Approval of a Definitive Plan, all in accordance with G.L. c. 41, §81U, the Subdivision Control Law ("Law"). [Note 1]
3. In May of 1987, the Town amended its By-law which had the effect of changing the zoning of Locus from 60% industrial/commercial and 40% residential to entirely residential.
4. On January 19, 1988, after a hearing, the Board disapproved the Definitive Plan. The Plaintiffs did not appeal the disapproval under §81BB of the Law.
5. The Plaintiffs amended the Definitive Plan, following the zoning in effect on March 27, 1987, and on March 14, 1988 filed the Amended Plan dated February 17, 1988 ("Amended Plan").
6. On March 16, 1988, the Board informed the Plaintiffs by letter that ". . . the Board's position is that the current By-laws [May 1987] apply to this Definitive Plan. As a result this Definitive Plan is not an approvable plan."
7. Pertinent sections of the statutes are:
G.L. c. 40A, §6 . . . If a definitive plan, or a preliminary plan followed within seven months by a definitive plan, is submitted to a planning board for approval . . . before the effective date of . . . by-law, the land shown on such plan shall be governed by the applicable . . . zoning . . . bylaw in effect at the time of the first such subdivision while such plan or plans are being processed under the subdivision control law, and, if such definitive plan or an amendment thereof, is finally approved, for eight years from the date of the endorsement of such approval . . .
Disapproval of a plan shall not serve to terminate any rights which shall have accrued under the provisions of this section, provided an appeal from the decision disapproving said plan is made under applicable provisions of the subdivision control law. Such appeal shall stay, pending an order of decree of a court . . . the applicability to land shown on said plan of the provision of any zoning . . . bylaw which become effective after the date of submission of the plan first submitted.
G.L. c. 41, §81U . . . the planning board shall . . . if such plan does not comply with the subdivision control law or the rules and regulations of the planning board . . . shall modify and approve or shall disapprove such plan . . . and shall revoke its disapproval and approve a plan which, as amended, conforms to such rules and regulations or recommendations.
In consideration of the foregoing, I rule that the seventh paragraph of c. 40A, §6 clearly required the Plaintiffs to file an appeal from the Board's January 19, 1988 denial if they were to preserve the zoning rights acquired by their March 14, 1987 filing. There is no question that the Board's denial of January 19, 1988, under current case law, was a final action of the Board and accordingly, under the aforesaid seventh paragraph of §6, an appeal was necessary to preserve the benefits of the pre-May 1987 By-law.
Having determined the seventh paragraph of c.40, §6 to be controlling the nature of the March 16 1988 letter is immaterial, as even an approval by non-action would still come under the 1987 zoning.
It is therefore
ADJUDGED and ORDERED that after the expiration of the appeal period from the Board's January 19, 1988 denial order, the permitted uses of Locus were governed by the By-law as approved in May of 1988.
By the Court
[Note 1] The Defendants originally claimed that the Definitive Plan was not timely filed so as to come under the zoning protection of paragraph 5 of G.L. c. 40A, §6. They apparently no longer pursue this defense.