By order dated February 23, 1988, entered in Reg. Case No. 14207-S, this Court held that a certain subdivision plan filed with the Swampscott Planning Board had been constructively approved on January 20, 1985. It further was held that the plan was entitled to be accepted for filing by the Engineering Department of the Land Court if the plan met the Court's requirements in respects other than as to its constructive approval. The Planning Board appealed the Court's order on March 2, 1988 and also held a public hearing in April 1988, pursuant to the provisions of G.L. c. 41, §81W at which it voted to rescind the approval of the subdivision plan. The Planning Board was aware at that time that a mortgage had been granted by the plaintiffs to Bank of New England - North Shore, dated June 26, 1985 and registered with the Essex South District Registry District of the Land Court as Document No. 202816. G.L. c. 41, §81W proscribes the rescission of the approval of a plan to 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, . . . without the consent of the owner of such lots, and of the holder of the mortgage or mortgages, . . ."
The Town argues that the plan had not been approved at the date of the mortgage and that, in any event, the mortgage was not given in good faith and for a valuable consideration. Neither contention can be sustained. The case of Stoner v. Planning Board of Agawam, 358 Mass. 709 (1971) makes it clear that the rule as to limits on rescission of a plan applies to a plan constructively approved as well as to a plan specifically approved by a Board. Id. at 714-715. This plan was constructively approved in 1985 although there was not a final judicial determination until this year that this in fact had occurred. See G.L. c. 41, §§81U and 81V. The mortgage to the Bank went on record after the date which the Court now has held to be the date of constructive approval. It accordingly is entitled to the benefit of the statutory protection. The Board claims that the mortgage was not given in good faith, presumably because a court had not then ruled on the approval; this contention cannot be sustained. In addition, the Board faults the "valuable consideration" the Bank claims to have spent. However, I find that the Bank has advanced, pursuant to the mortgage, a substantial sum of money. While it may well be true as the Planning Board contends, that the fruits of the funds expended do not appear on the ground, that is not the criteria for determining either whether such advances constitute consideration or were requested in good faith. There are many preliminary costs that a mortgagee may agree to cover and for which it should be protected. It would unsettle normal commercial practices if a Planning Board were permitted to rescind its approval after a Bank had made a commitment to advance funds and its security interest was a matter of record. The General Court did not intend such a result. Indeed the very recent decision of Young v. Planning Board of Chilmark, 402 Mass. 841 (1988), suggests that the right of rescission is very limited. Id. at 845-846. It now is unclear whether a Planning Board may rescind an approval for reasons other than a clear mistake, but we need not reach that question here. Accordingly, I grant the plaintiff's motion for summary judgment, deny the motion of the defendant and annul the action of the Planning Board whereby it purported to rescind the constructive approval of the subdivision plan.
By the Court
CHRIS DRUCAS and ARTHUR C. SIMMS, as Trustees of SIMCAS REALTY AND INVESTMENT TRUST vs. EUGENE BARDEN, BRIAN WATSON, VEEDER NELLIS, PETER BEATRICE, and VINCENT DiLISIO, as they are Members of the SWAMPSCOTT PLANNING BOARD.