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<br /> meeting of May 18, 1988, having been mailed directly to the Board by certified ;
<br /> maids with a Falmouth, Mass. postage meter date of May 9, 1988, being postmarked ;
<br /> by the Mashpee Post Office on May 10, 1988 and delivered via the Town Hall
<br /> janitor to the Planning Board's Town Hall mail slot on May 10, 1988. (See
<br /> attached copy of envelope in which the plan was delivered. ) On May 9th, 1988,
<br /> a Mashpee Special Town Meeting changed the zoning of the property in question,
<br /> along with other parts of the Town, from R-3 (requiring 40,000 square foot
<br /> lots) to R-5, requiring 80,000 square foot lots. M.G.L. Chapter 40A, Section 6
<br /> provides that "If a definitive plan, or a preliminary plan followed within
<br /> seven months by a definitive plan, is submitted to a planning board for
<br /> approval under the subdivision control law, and written notice of such I,
<br /> submission has been given to the city or town clerk before the effective
<br /> date of ordinance or by-law, the land shown on such plan shall be governed by
<br /> the applicable provisions of the ordinance or by-law, if any, in effect at
<br /> the time of the first such submission. . ." Because the Planning Board only
<br /> exists to conduct its business when it is sitting at a public meeting, and ;,l:' •,
<br /> there is no provision in Chapter 40A for any other person, whether the
<br /> town clerk or town hall janitor, to represent the Board and receive applications, ' ;
<br /> it is the opinion of the Board that, at least with regard to the specific ti
<br /> provisions of Chapter 40A Section 6 relative to how zoning "protection" is
<br /> achieved, the plan in question was not submitted to the Board until its
<br /> meeting on May 18, 1988, nine days after the property in question was a
<br /> rezoned from R-3 to R-5. Furthermore, even if it is somehow assumed that
<br /> the town hall janitor is empowered to receive the submission of a plan, it
<br /> clearly did not arrive in the Town of Mashpee until May 10, 1988. Chapter 40A i
<br /> makes no mention, as noted above, of submissions by mail , certified or
<br /> otherwise.
<br /> If one were to assume, which the Board does not, that the provisions of
<br /> Chapter 41 can control the operations of Chapter 40A, with specific reference '
<br /> to the Section 6 provisions for zoning protection, the Board is still of
<br /> the opinion that the submission date for the Merganser preliminary plan was
<br /> May 18, 1988. Chapter 41 Section 81-S provides only one mechanism for sub-
<br /> mission of a preliminary plan: "to the planning board and to the board of
<br /> health. .. and shall give written notice to the clerk. . . that he has sub- ;
<br /> mitted such plan." Section 81-S does not mention submission of plans by ,r '
<br /> mail. The Board's "Rules and Regulations Governing the Subdivision of Land"
<br /> (Section V) require submission of a preliminary plan "to the Board and
<br /> the Board of Health" and require that notice be given to the Town Clerk
<br /> that an application has been submitted (which can only be done, clearly, f
<br /> only after the fact of submission). `
<br /> There is only one provision throughout Chapters 40A and 41 for submission
<br /> of a plan by mail . That appears in Chapter 41 , Section 81-0, which states
<br /> that "A plan shall be submitted under this section when delivered at a ' '
<br /> meeting of the board or when sent by registered mail to the planning board,
<br /> care of the city or town clerk. If so mailed, the date of mailing shall
<br /> be the date of submission of the plan." Section 81-S, which governs the �I
<br /> submission of preliminary plans as referenced above, states that "except
<br /> as is otherwise provided, the provisions of the subdivision control law
<br /> relating to a plan shall not be applicable to a preliminary plan. . ." Since r
<br /> there is no specific provision in Section 81-0 for submission of a i
<br /> preliminary plan by registered mail , the exclusion of preliminary plans '
<br /> from the provisions of the subdivision control law, including Section 81-0, j
<br /> by the above-mentioned portion of Section 81-S would seem to apply.
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