S. TRACY ELIADES, as Trustee of the KINGSBURY REALTY TRUST v. ANN CALLAHAN, as THE TOWN CLERK OF THE TOWN OF AYER, JAMES LUCCHESI, HECTOR CREAMER, PETER JOHNSON, WILLIAM OELFKE, and PATRICIA WALSH, as members of THE PLANNING BOARD OF THE TOWN OF AYER

This matter was initially commenced by plaintiff, S. Tracy Eliades, as Trustee of the Kingsbury Realty Trust, on February 5, 2003, in Land Court Case No. 287351, seeking declaration, pursuant to G.L. c. 231A, that the plaintiff’s definitive subdivision plan was constructively approved by the defendant, the Planning Board of the Town of Ayer, as a result of its failure to take final action on the plan within the required statutory time frame. The plaintiff also sought to annul the Planning Board’s decision disapproving the subdivision plan on the grounds that the decision was arbitrary, capricious, and in excess of the Planning Board’s authority.

On May 23, 2003, the plaintiff filed a second action, Land Court Case No. 290121, seeking declaration, pursuant to G.L. c. 231A, that the Planning Board’s rescission of the alleged constructive approval of the subdivision plan is a nullity. On July 14, 2003, the Plaintiff filed, and the Court (Trombly, J.) allowed, an assented-to motion to consolidate the two cases.

On April 30, 2004, plaintiff filed a motion for summary judgment. On September 13, 2004, defendants filed a cross-motion for summary judgment. The motions were argued before the Court on September 22, 2004, and taken under advisement. The Court issued a Decision and Judgment, on May 6, 2005, allowing the plaintiff’s motion for summary judgment and denying defendants’ cross-motion; the Court ruled that the plaintiff’s subdivision plan was constructively approved and that, despite the Planning Board’s attempt to rescind constructive approval of the plaintiff’s definitive plan pursuant to G.L. c. 41, § 81W, mortgages given by plaintiff encumbering the land prevented it from doing so.

On June 13, 2005, defendants filed a motion for relief from judgment and a motion for reconsideration, relating to newly discovered evidence surrounding the good-faith basis of the mortgages. On July 11, 2005, plaintiff filed an opposition to the defendants’ motions. The motions were argued before the Court on July 14, 2005, and taken under advisement. The Court issued an Order on July 28, 2005, denying the defendants’ motions.

On August 22, 2005, defendants appealed. The Appeals Court found that the good-faith basis of the mortgages should not have been decided on summary judgment and accordingly reversed the Judgment and remanded the case to the Land Court on November 15, 2006, for further proceedings based on those findings.

On March 1, 2007, the case was before the Court for a status conference. There it was determined that trial would be held on the limited issue of the good-faith basis of the mortgages on the proposed subdivision land. The issues of the propriety of the actions of the Planning Board in their attempts to rescind, modify or amend the plans after constructive approval had taken place, and of whether the Planning Board’s decision was arbitrary, capricious or in excess of their authority, would be reserved for future determination.

Trial was held on March 2, 2007; testifying were David J. Clapp, Stephen J. Mullaney, Rosalie Ryan Eliades, and S. Tracy Eliades; seventy-two exhibits were admitted into evidence and chalks from “A” through “Y” were marked for identification. On April 2, 2007, both parties filed post-trial briefs. On June 14, 2007, the Court issued a decision ruling that plaintiff’s mortgages to the Lowell Five Cent Savings Bank and to the RTR Realty Trust were not made in good-faith and that, therefore, the Planning Board was not precluded from later voting to rescind the constructive approval of the plaintiff’s definitive subdivision plan.

On June 25, 2007, plaintiff filed a motion for reconsideration. On July 13, 2007, defendants filed a memorandum in response to the plaintiff’s motion. The Court denied the motion on July 2, 2007.

On April 4, 2008, defendants filed a motion for summary judgment on the issue of whether the Planning Board decision to rescind the constructive approval of the definitive subdivision plan exceeded its authority. On May 21, 2008, plaintiff filed an opposition to defendants’ motion as well as a cross-motion for summary judgment. On June 23, 2008, defendant filed an opposition to the plaintiff’s cross-motion and, inter alia, an affidavit of Paul J. Hajec, in support thereof. On July 7, 2008, plaintiffs filed a motion to strike the Hajec Affidavit. On July 9, 2008, defendants filed an opposition to the plaintiff’s motion to strike. On July 9, 2008, plaintiffs filed a reply to the defendants’ opposition to plaintiff’s cross-motion. The motions were argued before the Court on July 10, 2008, and taken under advisement.

After careful consideration of all of the evidence, the Court entered a decision today, ruling that the Planning Board acted properly in rescinding the plaintiff’s Subdivision Plan. Accordingly, it is hereby

ADJUDGED and ORDERED that the defendants’ motion for summary judgment is ALLOWED;

ADJUDGED and ORDERED that the plaintiff’s cross-motion for summary judgment is DENIED;

ADJUDGED and ORDERED that the Planning Board of the Town of Ayer properly rescinded approval of the plaintiff’s definitive subdivision plan on the grounds that it violated Section IV.A.4.a of the Subdivision Control Regulations of the Town of Ayer; and it is further

ADJUDGED and ORDERED that the Complaint be and is, hereby, DISMISSED.

By the Court (Trombly, J.)