Home RICHARD GRAHAM, as he is Trustee for CANNONBURY LAND REALTY TRUST, WESTERWICK DRIVE REALTY TRUST, and PACKETT DRIVE REALTY TRUST and as he is partner of TOPLAND PROPERTIES vs. JOHN D. BROCK, WALTER F. BARRETT, JOAN S. BARNES, STEPHEN BUTLER, and CHARLES GARDNER, as they are the MEMBERS OF THE NANTUCKET PLANNING BOARD.

MISC 127344

August 24, 1988

Nantucket, ss.

SULLIVAN, J.

ORDER DENYING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT.

On November 16, 1973 the Nantucket Planning Board (the "Board") approved a fifty-seven (57) lot subdivision plan developed for Edward V. Heath, the plaintiffs' predecessor in title, in that area of the island known as Siasconset. The Board's approval of this plan recorded with Nantucket Deeds as Plan File No. 5B was made subject to a covenant recorded with said Deeds in Book 147, at Page 140. By Paragraph 6 of the "Additions to Item l" of this covenant the applicant agreed as follows:

6. To remove the brush and grade Proprietors Road from the Milestone Road to locus. Providing that the necessary easements can be obtained from the Sconset Water Department (Commissioners) and other regulatory agencies, said work to be completed before the Planning Board is asked to release more than 38 lots in said subdivision.

Proprietors Road is to be connected to locus by developer via 40' easement between Lots 24 and 25.

An appeal from the subdivision approval was commenced in Nantucket Superior Court, as the case of George M. Buckingham, et al v. Charles J. Gardner, et al, Docket No. 1594, in which the applicant intervened. The Board's approval was affirmed by judgment of Cross, J. entered August 27, 1974. The current action has been brought by the present owner of the locus pursuant to the provisions of G.L. c. 41, §81BB and G.L. c. 185, §1. The plaintiffs complain that at a meeting of the Board held on February 8, 1988 the Board voted to reconsider its 1973 approval of the subdivision, the matter having come before the Board on the plaintiffs' request that it be granted a release of certain lots from the covenant and that the Board accept a letter of credit for such release. The plaintiffs contend that they are entitled to the release as a matter of right, and they further argue that the Board has no right to reconsider its previous approval. At this stage, however, the Board has not in fact acted to rescind the approval heretofore granted, and the present complaint is premature. No final action has been taken as yet by the Board, and until this has been done, as is illustrated by the case of Young v. Planning Board of Chilmark, 402 Mass. 841 (1988) the appeal is not properly here. Accordingly, I will retain jurisdiction and remand the matter to the Board for reconsideration of its vote and if it does not, for the statutory hearing after proper notice. If a hearing should be held, the Board carefully should weigh its course in accordance with the following discussion.

The Board's reliance on the holding of Patelle v. Planning Board of Woburn, 20 Mass. App. Ct. 279 (1985) that a Board may make modifications having an "indirect qualitative impact" even on lots which have been conveyed in good faith for valuable consideration, for support of its Ct. 216, 218 (1980) referred to an earlier case, Costanza & Bertolino, Inc. v. Planning Board of North Reading, 360 Mass. 677 , 678-681 (1971) wherein failure of the developer to comply with a covenant which required completion of the subdivision ways within two years was grounds for the Board's withholding its §81P endorsement. In an earlier decision in Patelle, 6 Mass. App. Ct. 951 (1978) it was stated that failure of a condition of subdivision approval would "result in automatic rescission of the approval." Id. citing Campanelli Inc. v. Planning Board of Ipswich, 358 Mass. 798 (1970) and Costanza & Bertolino. An examination of the conditions which have warranted such "automatic rescission" shows them to be time-limited requirements for the construction of ways and /or installation of municipal services. While the improvements to the Proprietor's Way at issue here were not time-limited, the original approval of the long cul-de-sac may have been conditioned on the improvements to the Proprietor's Way although paragraph six also appears to provide for the release of at least 38 lots with or without the way. The difficulty of construing this provision on the current record thus presents a second obstacle to summary judgment. This may indeed be the sole issue warranting trial. The plaintiff appears nevertheless to be entitled to release of less than 38 lots upon presentation of a proper bond. It is not clear from the provisions of §81U that the Board is not entitled to require a bond in lieu of the proffered letter of credit.

It further appears to the Court that the plaintiff by the plain reading of the terms of the covenant is entitled to a release of the 29 lots if, as the case law now suggests, it would be improper for the Board to rescind its approval. It is to the Board in the first instance, however, that the argument that it may rescind at will is misplaced. Indeed, Patelle distinguishes alterations to a plan which have an indirect impact from those cases where a board "purported to rescind altogether a subdivision plan, rather than modifying it, . . ." Id. at 283 referring inter alia to Stoner v. Planning Board of Agawam, 358 Mass. 709 , 714-715 (1971) and Bigham v. Planning Board of North Reading, 362 Mass. 860 (1972). Even the language of Vitale v. Planning Board of Newburyport, 10 Mass. App. Ct. 483 (1980) upon which the Board also relies describes rescission as a solution for the correction of errors. Id at 487. The narrow grounds for rescission apparent in such cases was recently reiterated in Young v. Planning Board of Chilmark, 402 Mass. 841 (1988) wherein a failure to complete a voluntary conveyance was held insufficient grounds for rescission. In Young, Justice Wilkins describes the grounds for rescission as involving "mistakes by planning boards, known to developers, which resulted in the unintended approval of a subdivision plan or in the approval of such a plan without the inclusion of the intended conditions." Id. at 845 and n. 4. Such errors or mistakes are not at issue here, indeed the validity of the Board's original approval was previously judicially determined in the earlier Superior Court case.

There is, however, another set of circumstances which may give rise to rescission, and that is where there has been a failure to comply with a condition of approval. The Board has argued for this so-called "automatic rescission" here on the ground that there has been a failure of a condition of the 1973 approval of the subdivision; the plaintiff's apparent inability to obtain the necessary easements from the Siasconset Water Department. The Appeals Court in Richard v. Planning Board of Acushnet, 10 Mass. App. statute mandates the decision of these matters, and accordingly, I must deny the plaintiffs' motion for summary judgment. As noted above it is more appropriate that the matter be remanded to the Board for hearing and decision with the plaintiffs then free to return to this Court both by a separate appeal and by cotinuing to press the present action.

By the Court