DALEY CONSTRUCTION CO., INC. vs. PLANNING BOARD OF RANDOLPH.

CUTTER, J. This is a bill in equity brought under G. L. c. 41, Section 81BB (as amended through St. 1955, c. 348), by Daley Construction Co., Inc. (Daley), on January 25, 1957. It seeks relief from the disapproval by the planning board of Randolph (the board) under c. 41, Section 81U (as amended through St. 1955, c. 324), of a plan for the subdivision of land. The case was referred to a master whose findings are summarized below.

Daley owns land shown on subdivision plan dated December 11, 1956, which was filed with the board on that date "in compliance with the by-laws of the town . . . and the General Laws." The plan had previously been approved by the town highway surveyor, by the town board of health, and, as to layout only, by the town's board of water commissioners. The water pipe layout on the plan was adequate. The town had accepted the provisions of the subdivision control law, now found in G. L. c. 41, Sections 81K to

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81GG, inserted by St. 1953, c. 674, Section 7. On January 14, 1957, after a public hearing before the board at which no objectors appeared the board disapproved the plan apparently in reliance upon Section 81M. [Note 1] Daley seasonably and properly filed its appeal under c. 41, Section 81BB. The master's report (apart from the obscure reference, quoted above, to the "by-laws of the town") contains no mention of the existence or contents of any local rules or regulations adopted under G. L. c. 41, Section 81Q, or otherwise, and, on this record, we do not know whether any rules and regulations have been adopted in Randolph, or, if some have been adopted, what they are.

The water commissioners of Randolph, Holbrook, and Braintree had determined that there was an acute shortage of water and lack of water pressure in those towns and that a fire hazard had been created. The planning board was notified of this condition on July 31, 1956. The master, after stating one of the issues as "[w]hether . . . the . . . board should approve a proper plan . . . when the . . . board has . . . notice . . . that there is an acute shortage of water and water pressure," concluded that the board

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"acted within the power given" to it by G. L. c. 41, Section 81U. The master's report was confirmed and a final decree provided "that the decision of the . . . board . . . disapproving the . . . plan . . . was within . . . [its] jurisdiction . . . and that no modification of it is required." Daley has appealed.

1. No ground for denying approval of the plan, other than the water shortage, was mentioned in the master's report. The decree below, after a hearing de novo (see Rettig v. Planning Bd. of Rowley, 332 Mass. 476, 478-479), was not justified upon this record unless it was within the authority of the board to refuse approval of the plan on this ground.

The question here presented is thus whether a subdivision plan, admittedly "a proper plan" with an adequate "water pipe layout," approved by appropriate town officers and boards and filed "in compliance with the by-laws of the town" and applicable provisions of the General Laws, may be denied approval by a planning board under the subdivision control law, G. L. c. 41, Sections 81K-81GG, on the ground that its execution may accentuate an existing town water shortage. In effect, the board here has denied to the owner the opportunity to subdivide its land, not because of any impropriety in the proposed plan for its use, but because the supply of water for the town, possibly inadequate unless augmented from new sources, will be further depleted by use in the buildings to be constructed. The board's powers here asserted rest solely upon the provisions of the subdivision control law. In applying that statute the board relied on Section 81M (see footnote 1, supra) and presumably, in view of the water shortage, principally upon the provision that the "powers of a planning board . . . shall be exercised with due regard . . . for securing safety in the case of fire, flood, panic and other emergencies . . . [and] adequate provision for water, sewerage, drainage and other requirements where necessary in a subdivision . . .."

The relevant sections of the subdivision control law as revised in St. 1953, c. 674, Section 7, and as later amended, have

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received little judicial interpretation. [Note 2] The decided cases are of slight assistance here. Legislative history, however, affords some guidance to interpretation of certain very general, and somewhat ambiguous, provisions of the law. The 1953 amendments were adopted largely upon the basis of 1953 House Doc. 2249, the report of the special commission on planning and zoning (see Res. 1951, c. 55, and Res. 1952, c. 89). Section 81M is, with a minor exception not here important, in the language recommended by the special commission (see its report, pp. 27-28) about which it commented (at p. 54), "Section 81M is wholly new. It states the purposes and objects of the law much as is done in the zoning enabling act, so as both to assure its constitutionality and aid in its interpretation. The only purposes recognized are to provide suitable ways for access furnished with appropriate municipal utilities, and to secure sanitary conditions" (emphasis supplied). At p. 10, the commission listed as two of the principal defects in the then existing statute (to which its attention had been invited by members of the bar) "3. It is not made sufficiently clear that the application of the law is limited to regulating the design and construction of ways in subdivisions, and some well-intentioned but overzealous planning boards have attempted to use their power of approving or disapproving plans of proposed subdivisions to enforce conditions doubtless intended for the good of the public, but not relating to the design and construction of ways within subdivisions; and it is said that some town counsels [sic] have approved this usurpation of power. 4. There are provisions in the law which seem to authorize more arbitrary action by planning boards than is consistent with our ideal of a constitutional government" (emphasis supplied). The commission also stated (at pp. 11-12) as part of the "purpose of the bill as now drawn" the following, "8. To clarify the language of

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the act, especially in some particulars where overzealous city planners have attempted to extend their authority to an extent greater than was intended by the framers of the law. 9. To eliminate certain provisions that were though to be unnecessarily arbitrary and to conform them to accepted principles of administrative law" (emphasis supplied).

The provisions of Section 81M as enacted are consistent with the statements of the special commission quoted above. The statute's purpose is to protect "the safety, convenience and welfare of the inhabitants . . . by regulating the laying out and construction of ways . . . providing access to the several lots . . . and ensuring sanitary conditions . . .." [Note 3] The statute lists, among other criteria, principally considerations relating to street design as those to be weighed in the exercise of the powers of a planning board, e.g. "the provision of adequate access . . . for lessening congestion in such ways . . . for reducing danger to life and limb in the operation of motor vehicles . . . and for co-ordinating the ways . . . with each other and with the public ways . . .." Even the consideration of "safety in the case of fire, flood, [or] panic" would seem to have primary reference to road design, although the suitability of lots and ways for use as such with reference to the danger of flooding may be material, a matter which we need not now consider. The general tenor of the entire section shows legislative concern primarily with (a) adequate ways to provide access furnished with appropriate facilities and (b) sanitary conditions of lots. Read in context, the words, "securing adequate provision for water," seem to us to mean installation of an adequate system of water pipes rather than an adequate supply of water, which, if not to be supplied from wells or other privately owned sources, is usually a matter of municipal water supply or water company action. It is not necessary, however, for us to determine whether, once the plan is

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approved, the owners of lots in the subdivision can later compel the provision to their premises of their share of the available town or water company water. Under our interpretation of Section 81M, that matter is not presented by this record, although it has been argued that the practical difficulties of providing such water may justify the planning board's action. See discussion in Brand v. Water Commrs. of Billerica, 242 Mass. 223, 228; Loring v. Commissioner of Pub. Works of Boston, 264 Mass. 460, 464-465; B & B Amusement Enterprises, Inc. v. Boston, 297 Mass. 307, 308; Harvard Furniture Co. Inc. v. Cambridge, 320 Mass. 227, 229; Reid Dev. Corp. v. Parsippany-Troy Hills, 10 N. J. 229, 233-237; McQuillin, Municipal Corporations (3d ed.) Section 34.89; Rhyne, Municipal Law, Sections 23-2, 23-5.

In view of the strong indications in the special commission's report (see p. 12) that the new statute was designed to "clarify . . . language . . . especially . . . where overzealous city planners have attempted to extend their authority" beyond the past legislative intention, we should not read into the general statement of legislative purpose in Section 81M any grant of authority outside that clearly and specifically given by the statute. In the absence of more explicit statutory language, we interpret the authority of planning boards under the existing subdivision control law as not permitting disapproval of an otherwise proper plan on the ground that its execution would tax existing water sources. It is immaterial that somewhat comparable statutes elsewhere may be broader. [Note 4] See Powell, Real

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Property, Section 866; Melli, Subdivision Control in Wisconsin, 1953 Wis. L. Rev. 389, 393, 398, 401, et seq.; note, 65 Harv. L. Rev. 1226-1237; note, 28 Ind. L. J. 544-573. See also annotation, 11 A. L. R. 2d 524.

The disapproval of the subdivision plan was unconditional. It in effect denied to Daley, because it did not have even conditional approval of the plan, any basis for proceedings to require the appropriate municipal water supply or water company to furnish water to the disapproved subdivision. The record thus presents no question whether a planning board under Section 81U may require that, before lots are sold or buildings constructed, arrangements be made to connect the water pipe system within a subdivision with pipes leading to a proper water supply. We determine merely that the Legislature, by the subdivision control law, thus far has not given to planning boards the power unconditionally to disapprove a subdivision plan because its execution would impose new demands upon a community's existing water supply. [Note 5]

2. The decree is reversed. A new decree is to be entered (a) stating that the planning board exceeded its authority in refusing approval of Daley's plan on the ground of the water shortage in the town, (b) annulling the decision of the board, and (c) directing the board to take promptly further proceedings under the subdivision control law consistent with applicable statutes and with this opinion. If the board had approved the plan, it might have included in its approval various provisions consistent with Section 81U, as amended by St. 1955, c. 324 (see footnote 3, supra). We do not undertake to state what those provisions should be.

So ordered.