Dennis v. Planning Board
Dennis v. Planning Board
Opinion of the Court
The plaintiffs appeal from a Superior Court judgment affirming rescission of the constructive approval of a
Background. The plaintiffs are the successor owners of land that was proposed for subdivision in 1999 by Michael F. Greene and Janet Burke (original owners). The board filed a certificate disapproving the definitive plan with the town’s clerk on August 10, 2001, two days after the expiration of the ninety-day review period in G. L. c. 41, § 81U, fifth par. The original owners timely filed a complaint in the Superior Court appealing that decision and seeking constructive approval. On April 1, 2002, the original owners sold the land to the plaintiffs, who mortgaged the land to the Winchester Savings Bank (bank), and granted the original owners a second mortgage.
The plaintiffs were substituted in the Superior Court action on July 16, 2002. That action was decided on summary judgment in February, 2004, when a judge ruled that the subdivision plan had been constructively approved, but remanded the case to allow the board an opportunity to consider rescission under G. L. c. 41, § 81W.
Following a vote of the board to rescind the approval, which vote took place on April 29, 2004, the plaintiffs filed a second complaint in the Superior Court, seeking to annul the rescission.
Separate appeals to this court followed each of these decisions.
On remand, a third judge affirmed the board’s rescission. The plaintiffs now appeal that summary judgment, arguing that (1) the board failed to obtain their consent as well as the consent of their mortgagees before rescinding approval; (2) they pur
Discussion. Our review is confined to the summary judgment materials before the judge challenging the board’s rescission. Our analysis proceeds under the familiar principles of Community Natl. Bank v. Dawes, 369 Mass. 550, 553-554 (1976).
The board, following the procedure in G. L. c. 41, § 81W, voted to rescind the constructive approval on April 29, 2001, without obtaining the consent of the plaintiffs or their mortgagees.
When the plaintiffs purchased the land from the original
*181 “No modification, amendment or rescission of the approval of a plan of a subdivision or changes in such plan shall affect the lots in such subdivision which have been sold or mortgaged in good faith and for a valuable consideration subsequent to the approval of the plan, or any rights appurtenant thereto, without the consent of the owner of such lots, and of the holder of the mortgage or mortgages, if any, thereon; provided, however, that nothing herein shall be deemed to prohibit such modification, amendment or rescission when there has been a sale to a single grantee of either the entire parcel of land shown on the subdivision plan or of all the lots not previously released by the planning board.”
Constructive approval is not “self-actuating,” Krafchuk v. Planning Bd. of Ipswich, 70 Mass. App. Ct. 484, 489 (2007). Our cases “dealing with constructive approval feature a land owner who relies upon and defends a constructive approval.” Windsor v. Planning Bd. of Wayland, 26 Mass. App. Ct. 650, 654 (1988). Here, at the time the board acted to rescind the constructive approval, the certificate of constructive approval had not been issued or recorded in the registry of deeds. More significantly, there is no indication that the subdivision plan had been recorded. The recording of a certificate of constructive approval and the subdivision plan are requisites for securing final approval. See G. L. c. 41, § 81V. Cf. Stoner v. Planning Bd. of Agawam, 358 Mass. 709, 714 (1971).
Moreover, there are no facts to support an inference that the bank even was aware of the plaintiffs’ pending claim of constructive approval in the Superior Court. Compare the discussion in Terrill v. Planning Bd. of Upton, supra at 176-177. By comparison, the second mortgage the plaintiffs granted to the original owners not only was not secured by the subdivision, but both parties knew of the board’s intent to disapprove the plan, and therefore assumed the risk that the board would seek rescission.
Because rescission is a “well-worn” way for a board to extricate itself from its failure timely to file a decision with the town’s clerk to prevent constructive approval, Windsor v. Planning Bd. of Wayland, supra at 656, the board’s rescission here was nearly certain to follow. In these circumstances, we think the second mortgage transaction with the original owners does not entitle these mortgagees to the protection as good faith purchasers
We have determined that no facts have been presented indicating that the board failed to comply either with the procedures or the substantive requirements of G. L. c. 41, § 81W, and we conclude that the board properly acted in rescinding the constructive approval of the subdivision plan.
Judgment affirmed.
The two Superior Court actions were consolidated on August 17, 2004.
The appeals were consolidated in this court on March 3, 2006.
There is no dispute that the subdivision plan under review by the board was constructively approved at the expiration of the statutory ninety-day time limit, on August 8, 2001. The board failed to file a written decision disapproving the plan until August 10, 2001. See Kay-Vee Realty Co. v. Town Clerk of Ludlow, 355 Mass. 165, 168-169 (1969), and cases cited.
General Laws c. 41, § 81W, second par., as appearing in St. 1977, c. 473, states in full:
The plaintiffs also asked for an adjudication of the merits of the plan, and for eminent domain damages.
Apparently by way of explanation for the delay in seeking a certificate of constructive approval, the plaintiffs rely on G. L. c. 41, § 81V, inserted by St. 1953, c. 674, § 7, to state that because a complaint was filed in the Superior Court, no certificate could be issued until “after receipt of certified records of the superior court. . . indicating that such approval has become final.”
A bona fide or good faith purchaser has been defined as “one who has in good faith paid valuable consideration for property without notice of prior adverse claims.” Black’s Law Dictionary 1271 (8th ed. 2004).
We think it also plain that the original owners, as second mortgagees, having entered into the mortgage transaction based only on the unsubdivided land, will be unaffected by rescission.
Alternatively, we consider whether rescission would not be prohibited if
During review of the definitive plan, it was discovered that it was based on an incorrect flood plain datum, and no new definitive plan correcting that error was submitted. The board states that the plan also failed to provide safe and convenient access for travel and for securing safety in case of flood or other emergencies.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.