Ward & Johnson, Inc. v. Planning Board of Whitman

343 Mass. 466 (1962)

179 N.E.2d 331

WARD & JOHNSON, INC. vs. PLANNING BOARD OF WHITMAN.

Supreme Judicial Court of Massachusetts, Plymouth.

November 8, 1961.

January 23, 1962.

Present: WILKINS, C.J., WILLIAMS, WHITTEMORE, CUTTER, & SPIEGEL, JJ.

Edward P. Kirby, Town Counsel, for the defendant.

George F. Edlund, for the plaintiff.

WILLIAMS, J.

This case concerns the validity of a decision by the planning board of Whitman disapproving a subdivision plan of the plaintiff submitted to the board pursuant to the provisions of G.L.c. 41, § 810. On February 8, 1960, the plaintiff submitted a preliminary plan, § 81S, and on February 19, a definitive plan. On April 18, the board disapproved the definitive plan on two grounds, (1) because there had been no final approval of the suitability of the land by the board of health, and (2) because the plan did not conform to the zoning by-law adopted by the town. The plaintiff appealed to the Superior Court from the decision of the planning board under § 81BB.

It was stipulated that the board, acting under the provisions of G.L.c. 40A, § 6, on February 4 and 11, 1960, caused the text and map of a proposed zoning by-law to be *467 published in a newspaper of general circulation in Whitman; that on February 25 the board held a public hearing on the proposal; and that at a town meeting on March 4 the town adopted the proposed by-law substantially unchanged. On March 24 the by-law was approved by the Attorney General, and it was duly posted.

This by-law appears to have amended an existing zoning by-law and the judge of the Superior Court ruled that it "was not "the zoning ordinance or by-law in effect at the time of the submission of the preliminary plan,'" (emphasis supplied), namely, February 8, 1960. He entered a final decree that "the decision of the planning board ... was beyond the authority of the said planning board because the proposed zoning by-law, upon which disapproval was based was not in effect at the time of the submission of the preliminary plan." The planning board has appealed from the decree to this court. It argues only the validity of its second ground for disapproval of the plaintiff's plan.

Section 7A of c. 40A, as appearing in St. 1959, c. 221, provided that the preliminary and definitive plans of a proposed subdivision "shall be governed by the zoning ordinance or by-law in effect at the time of the submission of the preliminary plan." The proposed by-law was not in effect when the plaintiff's preliminary plan was submitted since it had not been adopted by the town meeting. Compare Doliner v. Planning Board of Millis, ante, 1. It was therefore error to disapprove the plan on the ground that it did not conform to the provisions of that by-law. The plaintiff was entitled to a decision governed by the zoning by-law then in force.

Decree affirmed.