JULIUS DOLINER, trustee, vs. PLANNING BOARD OF MILLIS.

CUTTER, J. These two appeals from action of the planning board of Millis are brought under the subdivision control law, G. L. c. 41, Sections 81K to 81GG, as amended, see especially Section 81BB. Doliner alleged in each appeal that he, as trustee, owned land in Millis and that, on April 8, 1959, he had applied for approval of a definitive subdivision plan. In one appeal filed June 2, 1959, Doliner also alleged that by letter dated May 26, 1959, the planning board had in formed him of the disapproval of the plan for reasons stated below (see Doliner v. Town Clerk of Millis, post, p. 10). In the other appeal, filed June 10, 1959, Doliner alleged that the planning board had failed "to take any valid final action concerning" his subdivision plan "within sixty days following submission thereof as required by" G. L. c. 41, Section 81U.

The trial judge made the following findings. On April 8, 1959, a month after a town meeting had adopted a new zoning by-law, Doliner filed with the planning board, and on April 9, 1959, with the town board of health, applications for approval of his subdivision plan. He notified the town clerk of this action. The board of health made no report upon this plan to the planning board within forty-five days of the date of the filing. On May 26, 1959, the planning

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board notified the town clerk and Doliner that it had disapproved the plan because the "[l]ot sizes fail to comply with the [z]oning [b]y-law and [m]ap as accepted . . . at the [a]nnual [t]own [m]eeting of March 9, 1959." The planning board held no public hearing prior to this disapproval.

At the town meeting on March 9, 1959, the town voted to adopt the proposed zoning by-law then on file with the town clerk and to repeal the then existing zoning by-law passed in 1956, "such repeal to be effective only if and when" the new by-law should take effect after approval by the Attorney General and after publication. See G. L. c. 40, Section 32 (as amended through St. 1952, c. 337). On April 1, 1959, the town clerk forwarded the new by-law to the Attorney General, who approved it by letter dated June 9, 1959.

The judge further found that Doliner's plan was "filed in accordance with the rules and regulations and the zoning [by-]laws . . . in existence" on April 8, 1959, and that the new zoning by-law was not then in effect. He purported to "find," in effect thereby ruling, (a) "that no valid action . . . was taken by the . . . planning board within sixty days after" Doliner's submission of his subdivision plan; (b) that the amended zoning by-law "did not control" Doliner's plan; (c) that the board of health's failure to report within forty-five days "is deemed . . . approval of the . . . plan"; and (d) "that the failure of the planning board to approve or disapprove the . . . plan within sixty days . . . is deemed . . . approval . . . and such approval became final on that date [June 8, 1959]."

A final decree was entered that the plan was "deemed approved" by the planning board and the board of health "by reason of . . . [their] failure . . . to act thereon within the time prescribed in" G. L. c. 41, Section 81U; that this approval has become final; and that "the lots shown on . . . [the] plan conform to the residential use requirements of the zoning by-law . . . in effect on June 8, 1959." The planning board appealed.

1. Pertinent provisions of the subdivision control law

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appear in the margin. [Note 1] At the time of Doliner's filing of his definitive plan on April 8, 1959, and on May 26, 1959, when the planning board notified him and the town clerk of its disapproval, none of the 1960 amendments of c. 41 (mentioned in footnote 1) had taken effect. Some of the pertinent statutory provisions were considered by this court in Daley Constr. Co. Inc. v. Planning Bd. of Randolph,

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340 Mass. 149, 151-156, and in Pieper v. Planning Bd. of Southborough, 340 Mass. 157.

The Pieper case decided (see pp. 159-161) that under Section 81U (as amended through St. 1955, c. 324) disapproval of a plan by the planning board without granting a public hearing was not to "be treated as a nullity." Statute 1958, c. 377, Section 1, made changes in the language of Section 81U, including the substitution of "shall" for "may" in the language with respect to approval or disapproval of a subdivision plan. These changes do not require a different conclusion (from that in the Pieper case) as to the effect of planning board disapproval of a subdivision plan without holding the public hearing to which an applicant is entitled. Such disapproval, if intended by the planning board as final board action (and the letter of May 26, 1959, seems to have been so intended), operates as a disapproval and constitutes final board action, despite the failure to hold the public hearing contemplated by the statute.

The trial judge thus incorrectly ruled that the planning board had approved Doliner's plan by failing to act on or before June 8. The board's action on May 26 not only gave Doliner the right to appeal to the Superior Court under Section 81BB (as amended through St. 1957, c. 199, Section 2) but also prevented approval of the plan through lapse of time without action.

2. The planning board on May 26, 1959, disapproved Doliner's subdivision plan because it failed to comply with the new zoning by-law which had not then become effective under G. L. c. 40, Section 32, as amended. Whether this was proper action, apart from the failure of the planning board to grant a public hearing upon the plan, depends upon the interpretation of several possibly conflicting statutory provisions. See 1959 Ann. Surv. Mass. Law, Sections 12.10-12.11. These appear in two separate chapters of the General Laws. Our duty is to reconcile these statutory provisions, if possible, so that they will accomplish harmoniously the legislative purpose so far as that can be ascertained. See Real Properties, Inc. v. Board of Appeal of Boston, 311 Mass. 430, 436; Tilton v. Haverhill, 311 Mass. 572, 577-578.

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The subdivision control law contemplates that the planning board shall ensure compliance of subdivision plans not only with the zoning by-law, but also with the rules and regulations which must be adopted under Section 81Q (see the Pieper case, at p. 163), by each planning board in a community where the subdivision control law is in effect. See also the legislative history reviewed in the Pieper case and in the Daley Constr. Co. Inc. case, 340 Mass. 149, 153 et seq. Section 81M (see footnote 1, supra) states (1) that the planning board's powers "shall be exercised with due regard . . . for insuring compliance with the applicable zoning . . . by-laws" and also (2) that a plan "shall receive . . . approval . . . if . . . [the] plan conforms to the recommendation of the board of health and to the reasonable rules and regulations of the planning board." Although under Section 81Q the planning board's rules and regulations shall not relate to size of lots, except as they "may require compliance with . . . existing zoning . . . by-laws" (see footnote 1, supra), the planning board seems to be expected under Section 81M to require compliance with any applicable zoning by-law as well as with any rules and regulations of its own. It must be determined, however, in interpreting Section 81M what is an "applicable" zoning by-law.

Under G. L. c. 40, Section 32, the new Millis zoning by-law did not become effective until approved by the Attorney General on June 9, 1959 (and until there had been compliance with other provisions of the section), although it was adopted by the town meeting on March 9, 1959. Nevertheless, under G. L. c. 40A, Section 11, as revised by St. 1954, c. 368, Section 2, [Note 2] no building permit (to build upon a lot shown on the plan) would protect the owner of the lot (a) if the lot did

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not comply with the new zoning by-law (and the planning board found that it did not) and (b) if the permit was issued after public notice had been given of the hearing before the planning board upon the proposed new zoning by-law. See G. L. c. 40A, Section 6, as amended by St. 1957, c. 137. See also the later amendment of Section 6 by St. 1959, c. 317, Section 1. In the sense that c. 40A, Section 11, and the new by-law would prevent issuing a valid building permit (if the new by-law was later adopted by the town, approved by the Attorney General, and published, see c. 40, Section 32), the new by-law was "applicable" to Doliner's subdivision plan. Accordingly, having in mind c. 40A, Section 11, the Legislature can hardly have intended that a planning board must disregard the terms of a zoning by-law, already adopted by the town even if not yet approved by the Attorney General, when called upon to consider a subdivision plan violating that by-law. Particularly is that true, where the submission of the plan, a substantial time after the town's action, could have been found to have been a belated attempt to circumvent the new by-law. If the planning board were to approve such a plan, its action would be an empty gesture, and, in view of Section 11, might be seriously misleading to a purchaser of the lot from Doliner.

The situation is further complicated by the provisions of c. 40A, Section 7A. This section was originally enacted by St. 1957, c. 297. It then contained only the second sentence of the 1959 from of Section 7A, part of which appears in the margin. [Note 3] By St. 1959, c. 221, effective July 20, 1959, the

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first sentence was added. This amendment, of course, did not apply to the planning board's action on May 26, 1959.

In the circumstances, our efforts to reconcile these different statutes, enacted and amended at different times, lead us to the following conclusions. As the statutes stood on May 26, 1959, the planning board could properly have disapproved Doliner's subdivision plan (if it had held a public hearing on the plan) on the ground that the plan was inconsistent with the new by-law, in its discretion making its disapproval subject to permission to resubmit the plan if the Attorney General disapproved the new by-law. Because no public hearing upon the plan was held, however, the plan, in any event, must now be remanded to the planning board for new consideration, as was done in the Daley Constr. Co. Inc. ( 340 Mass. 149, 156) and Pieper ( 340 Mass. 157, 164) cases. If Doliner's plan should now be approved, the second sentence of the 1959 version of Section 7A (see footnote 3, supra) by its terms does not purport to protect from the new by-law lots shown on the plan which do not conform to that by-law which we assume has become effective. The fair construction, in a manner consistent with the public interest, of all the statutory provisions presently effective, especially c. 40A, Section 11 (footnote 2, supra), seems to us to permit the planning board now to rely upon the new zoning by-law [Note 4] as a basis for its action together with any other matters which it may properly consider under Section 81U (e.g. imposition of provisions regulating the construction of ways and the installation of utilities) under any rules and regulations in effect when Doliner submitted the plan on April 8, 1959. If, however, the planning board acts after St. 1961, c. 435, Section 2, has become effective, questions may arise under Section 7A, as thereby amended. No issue with respect to this 1961 amendment has been argued and the pendency of the amendment was not brought to our

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attention. Accordingly, we express no opinion with respect to it or its effect.

3. It is not clear from the trial judge's subsidiary findings whether in 1959 the planning board considered any issue other than whether the plan complied with the new by-law. The planning board's letter of May 26, 1959, suggests that it did not do so. The board of health may have failed to act at all, because it was of the opinion that the plan in any event could not be approved because in violation of the new by-law. In the circumstances, the new decree (see c. 41, Section 81BB) should appropriately give the board of health further opportunity to report on the plan.

The judge's finding that the "plan was filed in accordance with the rules and regulations and the zoning laws then in existence" implies that some rules and regulations had then been adopted. Counsel at the arguments expressed doubt whether regulations had then been promulgated under Section 81Q. If there were no such rules and regulations, any such rules and regulations adopted after April 8, 1959, would not be applicable to the planning board's action on Doliner's plan, by reason of the last sentence quoted from Section 81Q in footnote 1, supra.

4. The final decree is reversed. A new decree is to be entered (a) annulling the decision of the planning board and remanding the plan to it for consideration; (b) directing the planning board to hold a public hearing upon Doliner's plan and to obtain the recommendations of the town board of health thereon, each to be accomplished within forty-five days from the date of the new decree; and (c) directing the planning board to take final action upon the plan within sixty days from the date of the new decree in a manner consistent with the applicable statutes, by-laws, and rules and regulations (if any), and with this opinion.

So ordered.