354 Mass. 639

October 11, 1968 - October 31, 1968

Worcester County


Upon the filing of an answer in a suit in equity merely calling upon the plaintiff to prove the allegations in its bill and an admission by the defendant of the essential facts under G. L. c. 231, Section 69, the case stood as in effect a case stated, the plaintiff's motion for a final decree on the pleadings was properly allowed without the filing of a preliminary motion by it to take the bill pro confesso, and the only duty of the trial judge was to enter the correct decree upon such admitted facts. [640]

No abuse of discretion appeared in a suit in equity in denial of the defendant's motion to amend its answer. [640]

A plan showing a division of land in a town into nineteen "lots abutting both sides of . . . a public way," each lot having the frontage on the way and the area required by the town's zoning by-law, did not portray a "subdivision" within G. L. c. 41, Section 81L, and upon submission of the plan to the town planning board it should have endorsed thereon under Section 81P that approval of the plan under the subdivision control law was not required, even if a subdivision plan of an area larger than but including the are of the nineteen lots had previously been filed with the board and had been disapproved by it and an appeal from such disapproval was pending in the Superior Court. [641]

BILL IN EQUITY filed in the Superior Court on August 28, 1967.

The suit was heard by Hennessey, J.

The case was submitted on briefs.

Robert R. Gabriel for the defendant.

Eugene L. Tougas for the plaintiff.

CUTTER, J. The plaintiff (Waldor), by this appeal to the Superior Court under G. L. c. 41, Section 81BB, seeks to require the

Page 640

Westborough planning board (the board) to endorse upon a subdivision plan (subdivision plan B), filed with the board by Waldor, that approval of the plan under the subdivision control law is not required. The board's answer in effect merely called upon Waldor to prove the allegations in its bill. Thereupon Waldor filed a notice to admit certain facts. These the board promptly admitted.

Upon these admissions, in effect a case stated, Waldor moved for a final decree upon the pleadings. The trial judge allowed Waldor's motion and denied the board's motion to amend its answer to assert in effect (a) that, prior to Waldor's filing of subdivision plan B, Waldor had filed a subdivision plan (subdivision plan A) of a larger area, including the area covered by subdivision plan B; (b) that the board had disapproved subdivision plan A; and (c) that an appeal by Waldor was pending in the Superior Court from such disapproval. A final decree (1) determined that the board had exceeded its authority in refusing to endorse subdivision plan B as not requiring approval under the subdivision control law, and (2) directed the board to make such an endorsement. The board appealed.

1. The board first contends that Waldor should have moved to take the bill pro confesso before moving for a final decree upon the admitted facts. We perceive no reason for requiring Waldor to take a futile step. The facts admitted by the board pursuant to the notice to admit facts under G. L. c. 231, Section 69 (as amended through St. 1946, c. 450), became binding upon the board until and "unless . . . relieved therefrom by the court for cause shown." See Krinsky v. Pilgrim Trust Co. 337 Mass. 401 , 408. So long as the admissions were binding upon the board, the admitted facts were established as fully as by a statement of agreed facts. The only duty of the trial judge (where no other facts had been established) was to enter the correct final decree upon those admitted facts. See Saphier v. Devonshire St. Fund, Inc. 352 Mass. 683 , 684.

2. Denial of a motion to amend normally is addressed to a trial judge's discretion. See Charity v. Yates, ante, 275,

Page 641

276. Even if the amendment had been allowed and the board had established that the area covered by subdivision plan B was included in the area of subdivision plan A, the subdivision control law does not in terms preclude an owner from filing a second subdivision plan covering a part of the area covered by an earlier plan rejected by a planning board. [Note 1] Chapter 41, Section 81L (as amended through St. 1965, c. 61, see St. 1963, c. 580), provides, in part, that "the division of . . . land into two or more lots shall not . . . constitute a subdivision within the meaning of the subdivision control law if . . . every lot . . . has frontage on . . . a public way . . . ." [Note 2] The facts admitted establish (a) that subdivision plan B shows "lots abutting both sides of Bowman Street, a public way"; and (b) that each of nineteen lots had a frontage of at least 125 feet and an area of at least 15,000 feet as required by the town zoning by-law in effect on August 10, 1967, for a residential area such as that covered by subdivision plan B. Accordingly, subdivision plan B did not portray a "subdivision" as the term is used in Section 81L, and it should have been endorsed as requested by Waldor. See G. L. c. 41, Section 81P (as amended through St. 1963, c. 363, Section 1).

Decree affirmed.


[Note 1] The board in its brief refers to no statutory provision or decision which prevents the filing of such a second plan.

[Note 2] The frontage is required by Section 81L (see Section 81L, as amended by St. 1956, c. 282) to "be of at least such distance as is then required by" the applicable zoning by-law, with a minimum distance of twenty feet.