This action was brought by the trustees of the Burnham Land Trust under G.L. c. 41, § 81BB, seeking an annulment of a decision by the defendant Planning Board of the City of Beverly which purportedly rescinded the prior constructive approval of plaintiffs ' definitive subdivision plan . The action was framed in two counts; one lleging the Board' s decision was invalid under the provision of G.L. c. 41, § 81W; and two that the Boards decision was invalid in that the decision exceeded the Board's authority, was arbitrary and capricious, and rested upon legally inappropriate grounds. The plaintiff moved for summary judgment, the parties filed briefs, and the attorneys waived oral arguments. Under Mass. R. Civ. P. 56(c), a motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Community National Bank v. Dawes, 369 Mass. 550 , 553 (1976). After reviewing the pleadings and the one unanswered affidavit in this case, I find that there is no genuine issue as to any material fact, and therefore, that the case is ripe for summary judgment. The undisputed facts are as follows:
1. The plaintiffs, John C. Kelleher, III, Peter R. Merry, and Richard Osgood, are Trustees of the Burnham Land Trust (the "Trust"), under a Declaration of Trust dated October 18, 1984, recorded with the Essex South District Registry of Deeds at Book 8224, Page 506.
2. Defendant Planning Board of the City of Beverly (the "Board") is the duly established board with authority to approve definitive subdivision plans under the Subdivision Control Law, G.L. c. 41, §§ 81K et seq., in the City of Beverly.
3. The Trustees own in fee the land located west of Cailin Road, Beverly, described in deeds recorded with the Essex South District Registry of Deeds at Book 8907, Page 439, and Book 822, Page 518, respectively (the "land").
4. The Trustees prepared a definitive subdivision plan for the land, entitled "Definitive Plan, Cailin Road, Beverly, Mass." (the "subdivision plan").
5. The subdivision plan was submitted to the Board on July 29, 1988. The Board failed to act on the subdivision plan within ninety days after its submission to the Board.
6. On December 8, 1988, the Beverly City Clerk issued a Certificate pursuant to G.L. c. 41, § 81V, reflecting the Board's constructive approval of the subdivision plan. The Certificate was recorded on that date.
7. On or about December 6, 1988, the Warren Five Cents Savings Bank (the "Bank") entered into a mortgage loan with the Trustees in the amount of $1,175,000.00 for development of the lots in the subdivision plan (the "mortgage loan"). The mortgage loan was secured by a mortgage of the lots. The mortgage is recorded with Essex South District Registry of Deeds, at Book 3808, Page 322.
8. In entering into the mortgage loan, the Bank and the Trustees were aware of and relied upon the Board's constructive approval of the subdivision plan.
9. On January 18, 1989, the Board held a public hearing regarding action under G.L. c. 41, § 81W with respect to the subdivision plan. Prior to and at the time of the hearing, the Trustees informed the Board that the Bank and the Trustees had entered into the mortgage loan in reliance upon the Board's approval of the subdivision plan.
10. Notwithstanding the Trustees' having so informed the Board, at a public hearing on February 21, 1989, the Board voted to rescind the constructive approval of the subdivision plan. On or about February 22, 1989, the Board filed its decision with the City Clerk (the "Decision").
Pursuant to the express and unambiguous language of G.L. c. 41, § 8lW, a planning board may not rescind its approval of a
subdivision plan if the subdivision was mortgaged in good faith and for valuable consideration subsequent to approval unless the mortgagee and/or owner of the subdivision consents to such rescission. G.L.c. 41, § 81W; Stoner v. Planning Board of Agawam, 358 Mass. 709 (1971); (Once a subdivision plan is constructively approved and subsequently mortgaged, board cannot rescind or alter approval without consent of owners and mortgagee) Bingham v. Planning Board of No. Reading, 362 Mass. 860 (1972) (consent of mortgagee banks was mandatory under G.L. c. 41, § 81W).
Section 81W provides in part that:
No modification, amendment or rescission of the approval of a plan of a subdivision or change 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.
In this case it is undisputed that the Board had constructively approved the plaintiffs' subdivision plan, that the City Clerk had issued a certificate of constructive approval pursuant to c. 41, § 81V, and that a mortgage had been given on the lots in the subdivision for $1,175,000.00. The Board does not contend that the mortgage was not given in good faith or for valuable consideration. It is also undisputed that, subsequent to the granting of the mortgage, the Board with full knowledge of the above facts, voted to rescind the constructive approval and then filed a decision reflecting that rescission with the Town Clerk. The Board did not seek the approval of the plaintiffs nor of the holder of the mortgage, nor was any approval for the rescission given.
The Board contends that unless the plaintiffs demonstrate that their interest in the property or the mortgagee's interest in the property is affected by the Board's rescission, then the plaintiff is not entitled to summary judgment. Chapter 41, § 81W has no such requirement. The clear terms of c. 41, § 81W provide that if, subsequent to a subdivision approval, property is mortgaged in good faith and for a valuable consideration, that said approval cannot be rescinded without the consent of the owner and the mortgagee. The Board's decision to rescind the constructive approval, was in violation of G.L. c. 41, § 81W, and therefore, the decision of the board shall be annulled.
Judgment accordingly.
JOHN C. KELLEHER, III, PETER R. MERRY, and RICHARD OSGOOD, as they are Trustees of BURNHAM LAND TRUST vs. JAMES M. MANZI, CHARLES F. GRIMES, MARGUERITE D. COUGHLIN, RICHARD DINKIN, JOSEPH FERRANTE, DAVID LANG, ASHLEY PITTMAN, DAVID SABATINI, and GLENN TERRY, as they are Members of the Planning Board of the City of Beverly.