STELLA MAE PETERS v. PAMELA A. LABONTE, as she is the Town Clerk of the Town of Acushnet

By virtue of the instant action in the nature of mandamus initiated pursuant to G.L. c. 249, § 5, the plaintiff seeks to compel the defendant, the Town Clerk of the Town of Acushnet (Town Clerk), to issue a certificate under G.L. c. 41, § 81P to the effect that a plan submitted by plaintiff Stella Mae Peters (plaintiff) to the Town of Acushnet Planning Board (Board / Planning Board) does not require approval under the Subdivision Control Law. The plaintiff claims that she is entitled to a constructive endorsement of her plan as “approval not required” (ANR) owing to the failure by the Board to act on the plan within twenty-one days of its submission.

However, this court concludes that the plaintiff is not entitled to such endorsement inasmuch as she failed to timely file the requisite notice with the Town Clerk, as mandated by G.L. c. 41, § 81T. A one-day trial was held on September 22, 2010, at which a stenographer was sworn to take the testimony of Michael J. Koska, Marc Cenerizio, John C. Howcroft, and Donna Ellis. The twelve exhibits admitted into evidence are incorporated by reference into this decision for purposes of appeal.

On all the testimony, exhibits, and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda, and arguments of the parties, I find as follows:

(1) The plaintiff, Stella Mae Peters, is the owner of certain property abutting Apple Blossom Lane in the Town of Acushnet, Massachusetts (property/locus). The locus is designated as Parcel 25 on Assessors Map 11. [Note 1] It is shown as being divided into two lots with frontage on Apple Blossom Lane, on a plan entitled “Plan of Land, Apple Blossom Lane, Acushnet, Massachusetts, owner: John Peters, 537 North Main Street, Acushnet, MA 02743,” dated September 29, 2006, and prepared by Michael J. Koska & Associates, Inc. (ANR plan). [Note 2]

(2) The defendant is the Acushnet Town Clerk, serving in his or her official capacity. [Note 3] During all times relevant hereto, John C. Howcroft (Howcroft) served as the duly elected Town Clerk of Acushnet. [Note 4] In that capacity, Howcroft served as the keeper of the official Town records. [Note 5]

(3) Michael J. Koska (Koska) is a registered professional land surveyor, licensed in the Commonwealth of Massachusetts. [Note 6] He prepared the “Approval Under the Subdivision Control Law Not Required” Plan for the property. [Note 7]

(4) Marc Cenerizio (Cenerizio) is a duly elected member and Chairman of the Acushnet Planning Commission / Office of the Planning Board. Cenerizio has been a member of the Planning Board since 1995, and its chairman since 2003. He has served as Chairman at all times relevant to this action. [Note 8]

(5) Donna M. Ellis (Ellis) is the administrative assistant to the Board. She has held that position since 1996 and at all times relevant hereto. [Note 9]

(6) On January 25, 2007, Koska filed with the Office of the Town Clerk a single copy of the ANR plan and a document titled “Town of Acushnet Subdivision Rules and Regulations Form A-1 Application for Determination that Plan Does Not Require Approval,” (Form A-1) dated January 3, 2007. The application was signed both by Koska and by the plaintiff, Stella Mae Peters. [Note 10] At the same time, Koska submitted a check in the amount of $75.00 to the Town Clerk’s office as payment of the required filing fee. [Note 11] The copy of the ANR plan, Form A-1, and the receipt for the filing fee were placed in the Town Clerk’s file. I find that these are the only documents that were filed by the plaintiff at this time. The court specifically finds that testimony to the contrary by Mr. Koska was not credible. [Note 12] See in this regard extensive testimony on point by John C. Howcroft, Chairman Marc Cenerizio and Donna Ellis.

(7) Following the Town’s established procedure, Koska contacted either Marc Cenerizio or Donna Ellis [Note 13] and was told to appear at the meeting of the Planning Board scheduled for February 8, 2007, to present the plaintiff’s ANR plan. [Note 14] Based upon his prior experience submitting ANR plans to the Planning Board, [Note 15] Koska was aware that an applicant needed to contact the Board chairman directly or Ms. Ellis, the Board’s administrative assistant, and obtain a place on the next meeting’s agenda in order to submit an ANR plan for the Board’s consideration. [Note 16]

(8) On February 8, 2007, Koska appeared along with the plaintiff at the Planning Board meeting to submit the ANR Plan for consideration. The Board reviewed the Plan for the first time and considered the plaintiff’s request to endorse same as “approval not required” pursuant to G.L. c. 41, § 81P. Though the Plan was properly before it for endorsement, the Board took no action thereon at the February 8th meeting. [Note 17]

(9) The Board’s rationale was that it wished additional time to consult with the Town’s building inspector regarding the ANR Plan. [Note 18] (10) On March 15, 2007, the Board discussed the plaintiff’s ANR Plan at a second meeting. Once again, the Board took no action at that meeting. [Note 19] According to Cenerizio, the Board had questions regarding a proposed roadway and wished therefore to seek an opinion from the highway superintendent. [Note 20]

(11) On April 6, 2007, [Note 21] plaintiff’s counsel directed a handwritten document captioned “Memo” to the Town Clerk. He concluded the Memo as follows:

Demand is hereby made that you forthwith issue a certificate [of constructive approval] pursuant to G.L. c. 41 s 81P that said plan did not require approval of the subdivision control law…. [Note 22]

(12) On April 12, 2007, the Board took up the plaintiff’s ANR Plan at a third meeting. In response to the statement by plaintiff’s counsel at this meeting that if the Board did not endorse the Plan the plaintiff would go to court to seek that endorsement, the Board specifically voted 4-1 in favor of a motion to “put the issue in the hands of our lawyers.” [Note 23] This court is satisfied that the Board’s vote was tantamount to, and intended as, a denial of the application. [Note 24]

(13) The documents submitted in evidence as being on file with the Town Clerk constitute all the documents concerning the plaintiff’s ANR Plan that are presently on file with that office. Specifically, these documents include a single copy of the ANR Plan, the Form A-1 ANR Application, the receipt for payment of the filing fee, and a demand letter from plaintiff’s counsel. [Note 25]

(14) The Board never filed a written decision with the Town Clerk concerning the Plan at issue as set forth in G.L. c. 41, § 81P. [Note 26]

(15) However, neither Koska nor anyone else on the plaintiff’s behalf has ever filed written notice with the Town Clerk indicating the date on which the plaintiff’s ANR Plan had been submitted to the Planning Board. [Note 27] See in this regard, relevant provisions of G.L. c. 41, § 81T cited infra. [Note 28]

(16) The Town Clerk has not issued a certificate of constructive approval pursuant to G.L. c. 41, § 81P indicating that the Board’s failure to act on the Plan within twenty-one days constituted a determination that the plan did not require approval under the subdivision control law. [Note 29]

Discussion

The plaintiff’s primary argument is that the Town of Acushnet Planning Board constructively endorsed her ANR plan by failing to act thereon within twenty-one days of her submission of the plan to the Board. The plaintiff seeks certification to that effect from the defendant, the Town Clerk.

G.L. c. 41, § 81P [Note 30] establishes the procedure for the approval of plans not subject to the provisions of the subdivision control law.

An applicant may obtain “constructive endorsement” of an ANR plan by operation of law as a consequence of the failure by the planning board to act on the submission within the twenty-one day window. The submission of an ANR plan is guided by the following relevant provisions:

G.L. c. 41, § 81P:

Any person wishing to cause to be recorded a plan of land situated in a city or town in which the subdivision control law is in effect, who believes that his plan does not require approval under the subdivision control law, may submit his plan to the planning board of such city or town in the manner prescribed in section eighty-one T…

G.L. c. 41, § 81T:

Every person submitting a definitive plan of land to the planning board of a city or town … for a determination that approval is not required shall give written notice to the clerk of such city or town by delivery or by registered mail … that he has submitted such a plan.… Such notice shall … state the date when such plan was submitted….

The case of Korkuch v. Planning Bd. of Eastham, 26 Mass. App. Ct. 307 , (1988) is not only instructive, but, in the view of this court, dispositive, to the extent that it mirrors the case at bar. In Korkuch, in an effort to obtain an ANR endorsement, the plaintiff had submitted a plan to the Eastham Planning Board pursuant to G.L. c. 41, § 81P. “He did not give notice to the town clerk [pursuant to G.L. c. 41, § 81T] at the time of the submission of his plan.” Id. at 307-308. Arguing that the planning board had failed to act on his application within the time period specified in § 81P, he “took the position that under Section 81P the board had constructively determined that approval under the subdivision control law was not required.” Id. at 308. Thereafter, an action in the nature of mandamus was filed “to compel the board to endorse the plan or the clerk to issue the certificate” that the plan had been constructively endorsed. Id. In affirming the decision of the trial judge on summary judgment, the Court observed as follows:

Section 81T lacks precision as to the timing of the filing of the notice [by the applicant], but its purpose and that of the other “relevant sections of the Subdivision Control Law is to set up an orderly procedure for definitive action in offices of record within stated times, so that all concerned may rely upon recorded action or the absence thereof within such times….” Id. at 308.

If the plaintiff’s interpretation were followed and he were permitted to file the notice of submission at an unspecified time subsequent to a constructive determination that approval was not required, the intention of Section 81P “that the state of the record at the town clerk’s office to determine the right to a certificate by the clerk…would be thwarted….” Id. at 309.

If there were to be an appeal under G.L. c. 41, Section 81BB, ….the town clerk’s records would not show the facts determinative of the right to appeal.… A person aggrieved by the constructive action of the board would not be able to learn from the office of record the definitive date from which the time for an appeal is measured. In addition, a requirement that the notice be filed at the time of the submission furthers the policy of limiting the period during which an appeal may be taken and precludes indefinite protraction of the appeal process. Id.

Where a statute “lacks precision,” we must give it a construction which accords with the purpose of its framers…. Accordingly, we interpret the provision of Section 81T…to require that notice must promptly be filed with the town clerk simultaneously or, at lease, very promptly after submission to the board. Having failed to follow the requirements, the plaintiff was not entitled to an endorsement by the board or a certification from the town clerk. Id. (emphasis added) (internal citations omitted)

Under § 81P, there are three scenarios that may arise upon submission of an ANR plan. In the first instance, the planning board may find that approval under the subdivision control law is not required. It may endorse the plan without need of a public hearing.

Second, the planning board may find that the plan requires its approval, in which event the board must notify both the town clerk and the applicant within twenty-one days of submission so that the applicant may either re-submit the plan for approval or appeal the planning board’s decision.

Third, the planning board may simply fail to act or fail to notify both the town clerk and the applicant within twenty-one days of submission, in which case the planning board is deemed by law to have determined that approval is not required. [Note 31] Under this scenario, upon passage of the twenty-one day period, the planning board is obliged to endorse the plan to the effect that approval is not required. Should the board fail to do so, however, the applicant is entitled to a town clerk’s certificate attesting to the plan’s constructive endorsement.

However, as noted supra, constructive endorsement of an ANR plan requires, as a prerequisite, strict adherence to § 81T. To this end, the applicant must file notice with the town clerk setting out, inter alia, the date of submission of her ANR plan to the planning board. Failure to do so is “fatal to a claim of constructive endorsement.” Maini v. Whitney, 7 LCR 263 , 264 (1999); see also Korkuch, 26 Mass. App. Ct. at 309 (rejecting claim to constructive endorsement where applicant failed to file § 81T notice with town clerk). “The filing of notice with the town clerk does not supplant the requirement for an applicant to file an application with the planning board itself…. By its terms, [§ 81T] distinguishes between the submission of a plan to the planning board and the delivery of notice of such submission to the town clerk.” Maini, 7 LCR at 264 (footnote omitted).

While § 81T requires that notice of submission be given to the town clerk, it does not define the procedure for making the submission to the planning board. In this regard, G.L. c. 41, § 81O, [Note 32] provides that a subdivision plan is “submitted” when “delivered at a meeting of the [planning] board or when sent by registered mail to the planning board.” In Maini, the Land Court (Green, J.) concluded that a local rule for submission of ANR plans, being “consistent with the procedural disposition of subdivision plans under [§ 81O],” controlled the determination of the submission date of an ANR plan. Id. The Court based its conclusion on G.L. c. 41, § 81Q, which provides that “a planning board shall adopt … reasonable rules and regulations relative to subdivision control not inconsistent with the subdivision control law…. Such rules and regulations may prescribe … the procedure for the submission and approval [of plans].” This court concurs in that view and concludes, therefore, that the local procedures in this matter control the manner of submission of an ANR plan. In the case at bar, the Acushnet Planning Board procedures are not inconsistent with the subdivision control law.

Section 604 [Note 33] of the Town of Acushnet Planning Board Subdivision Rules and Regulations specifies the contents of a completed ANR submission. However, it does not set out the explicit procedure by which an applicant may submit an ANR plan to the planning board.

This court is satisfied however, that the filing and submission procedure has been established and maintained over fifteen plus years of relatively consistent practice in the Town. [Note 34] Typically, a copy of the ANR plan and Form A-1 application would be filed with the Office of the Town Clerk together with a filing fee of $75. [Note 35] Between the hours of 8:00 A.M. and 5:00 P.M. there is no one physically present in the Planning Board Office to accept submittals of ANR plans. [Note 36] The purpose of the filing with the Office of the Town Clerk is to pay the $75.00 fee [Note 37] while making a copy of the plan available for public viewing. [Note 38] Upon filing with the Town Clerk, the applicant would contact the Chairman of the Planning Board Marc Cenerizio at his place of business to advise him that the applicant wished to be placed on the Board’s agenda [Note 39] At no time does the Office of the Town Clerk or its personnel notify the Planning Board or any of its representatives of the filing. [Note 40] The chairman would place the applicant on the agenda for an upcoming Planning Board meeting. For the last few years, the Planning Board has scheduled meetings approximately once a month and occasionally less than that. [Note 41] The applicant would appear at the meeting together with the required documents itemized in Section 604 of the Planning Board’s Rules and Regulations, including nine copies of the ANR Plan [Note 42] as well as a Mylar copy of the Plan. [Note 43] The submission package would include the Form A-2 checklist [Note 44] as well as the Form J Designers’ Certificate. [Note 45]

As with the local rule in Maini, the Acushnet procedure defines submission as delivery of an ANR plan with the completed application materials to a meeting of the planning board. As this procedure is consistent with G.L. c. 41, § 81O, it will determine when the plaintiff submitted her ANR plan in this action. Accordingly, this court finds that the plaintiff submitted her ANR Plan at the February 8, 2007 meeting of the Planning Board, when her agent Koska presented the Plan along with the completed application package.

However, I further find that neither the plaintiff nor her agent ever notified the Town Clerk that her ANR plan had been submitted to the Planning Board, as required under G.L. c. 41, § 81T. Absent such notice, the plaintiff is not entitled to a certificate of endorsement under G.L. c. 41, § 81P because she has not complied with a critical statutory prerequisite.

The plaintiff argues, however, that the Planning Board’s procedure is impermissibly redundant because the initial filing of the ANR application with the Town Clerk (a) should have fulfilled the G.L. c. 41, § 81T notice requirement and (b) satisfied the submission requirements under G.L. c. 41, § 81P. According to the plaintiff, a written notice to the Town Clerk after submission to the Board would be wholly unnecessary.

This argument is unconvincing for several reasons. The most obvious of these reasons is that there was no filing with the Town Clerk that may properly be designated as a “written notice.” Moreover, the G.L. c. 41, § 81T notice must necessarily occur after submission to the Planning Board, since the required notice must include the date of submission. And, as noted above, the plaintiff’s argument is explicitly contradicted both by the statutory language of G.L. c. 41, §§ 81P and 81T and by the express holding in Korkuch. [Note 46] For there to be an effective submission, there must be a delivery of an ANR plan with the completed application materials to a meeting of the Planning Board. Clearly, the limited materials filed with the Town Clerk do not suffice to meet the submission requirements specified in Section 604. [Note 47]

Conclusion

Predicated upon the foregoing, this court concludes that the plaintiff has failed to comply with the explicit notice requirements to the Town Clerk as set forth in G.L. c. 41, § 81T. Consequently, “Having failed to follow the requirements, the plaintiff was not entitled to an endorsement by the board of a certification [Note 48] from the town clerk.” [Note 49]

Proposed findings of fact and rulings of law are hereby adopted to the extent they are consistent herewith, but are otherwise denied.

Judgment to enter accordingly.