29 Mass. App. Ct. 314 | Mass. App. Ct. | 1990
The plaintiff, who as trustee of Landcor Realty Trust owns eighty-three acres of land in Tyngsborough (the “locus”), filed on March 27, 1987, a preliminary subdivision plan with the planning board. See G. L. c. 41, § 8IS, as amended through St. 1964, c. 105, § 1. In May of that year, the town amended its zoning by-law in a manner that would preclude commercial or industrial development of the locus. On October 27, exactly seven months after submission of the preliminary plan, the plaintiff filed a definitive subdivi
The plaintiff argues that the locus is entitled to the “grandfather” protection of G. L. c. 40A, § 6, as amended through St. 1986, c. 557, § 54
“In the event of disapproval, the planning board shall state in detail wherein the plan does not conform to the rules and regulations of the planning board or the recommendations of the health board or officer and shall revoke its disapproval and approve a plan which, as amended conforms to such rules and regulations or recommendations. ’ ’
The case has been argued to us on the footing that, if the amended zoning by-law applies to the locus, the amended definitive plan is not entitled to approval.
Where a definitive plan is arguably entitled to approval by the planning board, a developer can preserve whatever rights he may have by filing an appeal under G. L. c. 41, § 8IBB, from a decision by the planning board disapproving the plan. See G. L. c. 40A, § 6, par. 7. This remedy, described in § 8IBB, as appearing in St. 1957, c. 199, § 2, as “exclusive,” would preserve the grandfather protection of § 6 if it should be determined that the plan was, in fact, entitled to approval. Here, however, the plaintiff concedes that the definitive plan originally filed was not entitled to approval and that an appeal would have been fruitless. In these circumstances, having filed the original definitive plan at the end of
Judgment affirmed.
Nothing in the record indicates that a copy of the original definitive plan was filed with the Tyngsborough board of health as required by G. L. c. 41, § 81U. However, at the time the plaintiff filed his amended definitive plan with the planning board (March 14, 1988), he also filed a copy of that plan with the board of health. On May 1, 1988, subsequent to the commencement of the Land Court proceedings, the board of health notified the plaintiff that it was “rejecting] this plan because of insufficient soil data” and because “the limited data available suggests the soils may not permit construction of subsurface sewage disposal systems at the location.” The plaintiff then amended his complaint, joining the members of the board of health as defendants in this action. Deciding as we do (see infra), we do not reach the plaintiffs argument concerning the rejection of the amended plan by the board of health.
The two pertinent paragraphs (the fifth and seventh) of c. 40A, § 6, provide:
“If a definitive plan, or a preliminary plan followed within seven months by a definitive plan, is submitted to a planning board for approval under the subdivision control law, and written notice of such submission has been given to the city or town clerk before the effective date of ordinance or bylaw, the land shown on such plan shall be governed by the applicable provisions of the zoning ordinance or by-law, if any, in effect at the time of the first such submission while such plan or plans are being processed under the subdivision control law, and, if such definitive plan or an amend
“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 or decree of a court of final jurisdiction, the applicability to land shown on said plan of the provisions of any zoning ordinance or by-law which became effective after the date of submission of the plan first submitted.”
As to the relevance generally of zoning considerations to subdivision plan approval, see Canter v. Planning Bd. of Westborough, 4 Mass. App. Ct. 306, 309 n.1 (1976).