JUDITH A. CZYOSKI and ANDREW CZYOSKI, as Trustees of A AND B NOMINEE REALTY TRUST v. CYNTHIA A. SLADE, as she is the TOWN CLERK OF THE TOWN OF TRURO

Plaintiffs commenced this case on May 5, 2009, as an action in the nature of a mandamus, pursuant to G.L. c. 249, § 5, seeking to compel the Defendant, the Town Clerk of the Town of Truro to issue a certificate of constructive approval on a certain definitive subdivision plan of land, titled “Subdivision Plan of Land in Truro, Made for the Czyoski Family Trust, Scale 1”=5’, Slade Associates, Inc.” dated June 10, 2005 (Definitive Plan). The Definitive Plan depicts a parcel of real property, known as and numbered 0 Bayview Road in Truro, shown on Truro Assessors’ Atlas Sheet 39, Parcels 75 and 76, owned of record by Plaintiffs. Defendant answered the Complaint on May 11, 2009.

On June 19, 2009, Plaintiffs filed a Motion for Summary Judgment. Defendant opposed the motion and filed a Cross-Motion for Summary judgment on July 10, 2009. The motions were argued on August 12, 2009, and are the matters presently before the court.

After reviewing the record before the Court, I find that the following facts are not in dispute:

1. Plaintiffs, Judith A. Czyoski and Andrew Czyoski, as Trustees of the A and B Nominee Realty Trust, are the owners of a parcel of real property, known as and numbered 0 Bayview Road in Truro, shown on Assessors’ Atlas Sheet 39, Parcels 75 and 76 (Property).

2. On June 30, 2005, Plaintiffs submitted a plan of land depicting a subdivision of the Property, titled “Subdivision Plan of Land in Truro, Made for the Czyoski Family Trust, Scale 1”=5’, Slade Associates, Inc.” dated June 10, 2005 (Definitive Plan), for approval.

3. On February 21, 2006, the Planning Board of the Town of Truro voted to deny the Definitive Plan. Plaintiffs appealed from the decision to the Barnstable Superior Court in Czyoski v. Truro Planning Board, Civil Action No. BACV2006-00147. On March 15, 2007, the Superior Court (Connon, J.) ruled that the Definitive Plan had been constructively approved and the decision of the Planning Board was, therefore, a nullity.

4. On June 12, 2007, the Planning Board voted to rescind the constructive approval. The Plaintiffs appealed from that decision to the Land Court in Czyoski v. Town of Truro Planning Board, 07 MISC 350800. On March 31, 2009, this court (Trombly, J.) issued a Decision and Judgment, ruling that the decision of the Planning Board exceeded the authority of the board and was, therefore, annulled

5. Defendant has appealed from the Land Court Judgment to the Appeals Court. That appeal is still pending.

6. On April 14, 2009, Plaintiffs requested of the Defendant, the Town Clerk the Town of Truro, the issuance of a certificate of constructive approval.

7. The Town Clerk has not issued the requested certificate.

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Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). In viewing the record before it, the Court reviews “the evidence in the light most favorable to the nonmoving party.” Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002). In the instant matter, there are no genuine issues of material fact, within the meaning of Mass. R. Civ. P. 56(c), and, therefore, this case is proper for summary judgment.

Generally, an action in the nature of mandamus is a mechanism by which the court may compel the performance by a public officer of his or her official duty. J & R Inv., Inc. v. City Clerk of New Bedford, 28 Mass. App. Ct. 1 , 7 (1989); see G.L. c. 249, § 5; Knights v. Burrell, 236 Mass. 336 (1920). “[Where] a town clerk refuses to issue a certificate, a developer can seek relief in the nature of mandamus.” Kitras v. Zoning Adm’r of Aquinnah, 453 Mass. 255 (2009) (and cases cited).

General Laws chapter 41, § 81U provides in pertinent part:

the failure of a planning board either to take final action or to file with the city or town clerk a certificate of such action regarding the definitive plan submitted by an applicant within ninety days after such submission, or such further time as may be agreed upon at the written request of the applicant, shall be deemed to be an approval thereof.

Such a constructive approval is made final “after the expiration of twenty days without notice of appeal, or if an appeal has been taken, when the town clerk receives a certified record of the court indicating that the constructive approval has become final.” Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 , 526 (2009) (footnote omitted) (citing Kitras, 453 Mass. at 253; see G.L. c. 41, § 81V.

General Laws chapter 41, § 81V provides in pertinent part:

In case of the approval of a plan by reason of the failure of the planning board to act within the time prescribed, the city or town clerk shall, after the expiration of twenty days without notice of appeal to the superior court or the land court, or, if appeal has been taken, after receipt of certified records of the superior court or the land court indicating that such approval has become final, issue a certificate stating the date of the submission of the plan for approval, the fact that the planning board failed to take final action and that the approval resulting from such failure has become final.

Where the constructive approval has become final, the town clerk is obligated to issue a certificate of such approval. Kitras, 453 Mass. at 253. The certificate of constructive approval “memorializes that the constructive approval has become final, but does not itself, confer finality.” Krafchuk, 453 Mass. at 526 (citing Kitras, 453 Mass. at 254-55).

The Barnstable Superior Court determined in Czyoski v. Truro Planning Board, Civil Action No. BACV2006-00147, that the Definitive Plan was constructively approved as a result of inaction by the Planning Board within the ninety day period. It is undisputed that no appeal was taken from the constructive approval during the twenty days thereafter. Therefore, the Town Clerk is obligated to issue a certificate of constructive approval on the Definitive Plan.

Defendant argues that the obligation to issue a certificate should be stayed pending the appeal in order to protect the public interest. However, Defendant can point to no legal basis for such a stay. Defendant cites Mass. R. Civ. P. 62(a), which imposes an automatic stay of certain trial court judgments pending appeal. However, as Defendant notes, Rule 62(a) does not apply to this case, and I do not agree that the purposes of that rule should be applied to remove the requirements of G.L. c. 41, § 81V.

Defendant cites also Board of Selectmen of Pembroke v. R. & P. Realty Corporation, for the proposition that the Subdivision Control Law is designed to protect the public by creating clear rules upon which the public may rely. 348 Mass. 120 , 125 (1964). Defendant concludes that if the certificate is issued, subsequent purchasers of the property will be lead to believe that the property is an approved subdivision, when in fact the Planning Board is actively pursuing its appeal. However, it is clear that the protections of the Subdivision Control Law are not for the benefit of subsequent purchasers but of the applicant and abutters. See id. (“The intention of relevant sections of the Subdivision Control Law is to set up an orderly procedure for definitive action within stated times, and for notice of that action in offices of record within stated times, so that all concerned may rely upon recorded action or the absence thereof within such times.” (emphasis added)). Moreover, the Planning Board could have protected the interest of subsequent purchasers by bringing a timely appeal from the constructive approval, which would have prevented the right to a certificate of constructive approval from becoming final, but failed to do so.

Defendant also attempts to torture the meaning of G.L. c. 41, § 81X. Chapter 41, § 81X provides in relevant part that the contents of an endorsement of the planning board or certificate by the town clerk, on a recorded plan, “shall be final and conclusive on all parties, subject to the provisions of section eighty-one W.” This sentence serves simply to confirm that the board has the authority under G.L. c. 41, § 81W to modify, amend, or rescind an endorsed plan. It is not fairly interpreted to mean that the town clerk is not obligated to issue a certificate of constructive approval where the Planning Board intends to exercise such authority. Had the Legislature intended that the issuance of a certificate of constructive approval be stayed after being made final, it would have provided so, expressly. Moreover, G.L. c. 41, § 81W, provides further that “[n]o 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 ….” Clearly the Legislature contemplated that a subdivision, having been constructively approved would be eligible to obtain a certificate of constructive approval and, thereby, sell off its lots, even where the planning board intended to modify, amend, or rescind the constructive approval.

Finally, Defendant appears to point out to the court that it has the discretion to stay the execution of a judgment in this case to afford the planning board an opportunity to exercise its power to modify, amend, or rescind the constructive approval. I agree that the court has such authority. See Kay-Vee Realty Company, Inc. v .Town Clerk of Ludlow, 355 Mass. 165 , 170 (1969); Zaltman v. Town Clerk of Stoneham, 5 Mass. App. Ct. 248 , 252-53 (1977). However, here, the Planning Board has already exercised this power by its June 12, 2007 decision to rescind the constructive approval. Therefore, I see no reason to delay the right of Plaintiffs to obtain a certificate of constructive approval any further.

Conclusion

For the foregoing reasons, this court concludes that the Town Clerk of Truro is obligated to issue a certificate of constructive approval on the Plaintiffs’ definitive plan of land. The Definitive Plan was constructively approved and no appeal was taken. Accordingly, the Plaintiffs’ Motion for Summary Judgment is hereby ALLOWED and the Defendant’s Cross-Motion for Summary Judgment is DENIED. It is further ORDERED that the Town Clerk of the Town of Truro shall issue, forthwith, a certificate of constructive approval, pursuant to G.L. c. 41, § 81V, on the Plaintiffs’ definitive subdivision plan.

So Ordered.

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: November 6, 2009