29 Mass. App. Ct. 314

John D. Arenstam, trustee, vs. Planning Board of Tyngsborough & another.1

No. 89-P-1330.

Suffolk.

June 19, 1990.

October 1, 1990.

Present: Armstrong, Dreben, & Ireland, JJ.

Leslie H. Rudnick for the plaintiff.

Charles J. Zaroulis, Town Counsel (Brenda P. Maille with him) for the defendants.

Ireland, J.

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*315sion plan. The planning board disapproved the definitive plan on January 19, 1988, stating that it did not comply with the rules and regulations of the planning board and, in addition, did not comply with either the zoning by-law in effect before the May, 1987, amendment or the by-law in effect after that amendment. The plaintiff then resubmitted the plan with amendments that (we assume for purposes of this decision) complied with the rules and regulations said to have been violated by the definitive plan as originally submitted and with the zoning by-law in effect prior to the May, 1987, amendment.2 The planning board disapproved the resubmitted, amended definitive plan on the ground that the locus was governed by the May, 1987, zoning by-law, rather than by the zoning by-law in effect at the time the preliminary plan was submitted. A judge of the Land Court agreed and affirmed the decision of the board. The case is here on the plaintiff’s appeal.

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, § 543 (and thus to the application *316of the pre-amendment zoning by-law), because his definitive plan was originally submitted within seven months of the preliminary plan, as required by § 6, notwithstanding the fact that his resubmitted, amended definitive plan was submitted after the seven-month period had expired. Here, the plaintiff relies on the second paragraph of G. L. c. 41, § 81U, as appearing in St. 1978, c. 422, § 1, which, in relevant part, provides:

“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.4 We consider only the question argued. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

*317In our view, the Land Court and the board were correct in ruling that G. L. c. 40A, § 6, does not give “grandfather” protection to the locus in the circumstances disclosed. The apparent purpose of the requirement of § 6 that the definitive plan be submitted within seven months of the date the preliminary plan was filed is to give the developer a reasonable time to work out details of an approvable plan with the planning board and the board of health, while at the same time avoiding an open-ended suspension of zoning amendments that are adopted by the town during the subdivision plan approval process. It is true that § 6 refers to a “definitive plan or an amendment thereof [which] is finally approved”; and that G. L. c. 41, § 81U, puts no limit on the time a developer has to amend his plan so as to meet the board’s reasons for disapproval. To preserve the sense of § 6, its reference to amended definitive plans must be read to apply only to those amended plans filed with the board within the seven-month period after submission of the preliminary plan. “[A]ny definitive plan, filed more than seven months after a preceding preliminary plan, is to be treated as a new plan, which gains protection under [G. L. c. 40A,] § 7A [the predecessor of today’s § 6,] only from the date when it is filed and not as of the date of the filing of the preliminary plan.” Green v. Board of Appeal of Norwood, 358 Mass. 253, 257 n.4 (1970)(a case in which the issue before us was alluded to but not decided).

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 *318the seven-month period prescribed by § 6, the plaintiff left himself no time within which to file an amended definitive plan under the provisions of G. L. c. 41, § 81U, that might be eligible for the protection of § 6.

Judgment affirmed.

Arenstam v. Planning Board
29 Mass. App. Ct. 314

Case Details

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Arenstam v. Planning Board
Decision Date
Oct 1, 1990
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29 Mass. App. Ct. 314

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