STEPHEN G. CHANCE and MICHAEL FISHER vs. PHILLIP C. KIKLIS, JAMES FELD, FREDERICK SCEARBO, ROBERT RUFO, JOHN McELHINNEY, ROGER WHITE and WILLIAM PIERCE, as they are the PLANNING BOARD OF THE CITY OF WOBURN.

The plaintiffs Stephen G. Chance and Michael Fisher, as Trustees of High View Road Realty Trust appeal from the rescission by the defendant Planning Board for the City of Woburn of the approval of a subdivision plan entitled "Definitive Plan of Land in Woburn, Mass., Locus Plan" dated September 16, 1974 by Edward T. Spinucci. The plaintiffs allege that they are the owners of certain, but not all, of the lots on the subdivision plan, and with outstanding mortgages thereon General Laws c. 41, §81W prohibited the Planning Board from rescinding its approval of the plan. The plaintiffs further rely on an agreement by the City made in 1977 not to rescind the subdivision and the assurances given to them by the planning administrator that the subdivision was in full force and effect. The plaintiff Chance, a novice in development, testified at the trial that he was anxious only to have the approval of the subdivision reinstated so that he might sell the land owned by the trust and leave the development to someone more experienced in the field. The city alleged in its answer that the plaintiffs and their predecessors had violated the existing covenant governing the plan and had not constructed the road in accordance with the applicable plans. At the trial, however, special counsel for the City suggested that the matter be remanded to the Planning Board for a statement of its reasons in rescinding the plan. On all the evidence, however, I find and rule that the Planning Board's rescission is not effective since it did not comply with the provisions of G.L. c. 41, §81W. The plaintiffs had filed with the Board at the time of the rescission an application for approval of a new plan pursuant to the provisions of G.L. c. 41, §81P to the effect that approval under the subdivision control law was not required. The plaintiffs were allowed by the Board to withdraw the ANR plan without prejudice. Since the Court has ruled that the rescission was not effective, the plaintiffs should have the ANR plan updated and filed with the Board for its endorsement. The goal of all parties should be the completion of the subdivision in a good and workmanlike manner without further delay.

On all the evidence I find and rule as follows:

1. The Village III subdivision was approved by the Planning Board in 1974. The development of the land shown on the subdivision plan did not go smoothly even in its first phases, and apparently a mortgagee holding a mortgage on at least part of the land shown on the subdivision plan foreclosed; the mortgagee, now the owner, then entered into an agreement with the City of Woburn to resolve the situation.

2. The Mayor, the Superintendent of Public Works, the Chairman of the Planning Board, the city Engineer and the Building Inspector on behalf of the City, University Bank and Trust Company, as the owner of the real estate and one David Parrella, as a prospective purchaser, entered into an agreement dated August 22, 1977 which in essence provided that the Bank would pay to the City upon presentment of invoices for materials and supplies to be used in the installation of the streets and curbings described in Exhibit A to the agreement for an amount not to exceed the actual costs thereof and in no event more than $20,000; the City would install with its own employees and contractors the streets and curbings in accordance with the plans approved by the Planning Board with the work to be completed on or before November 30, 1977, and the City would not revoke or take any action whatsoever concerning the plan, and upon presentation of properly executed building applications with payment of the appropriate fees the building permits would be issued for single family dwellings in compliance with the zoning and building by-laws (Exhibit No. 9).

3. At the time the present plaintiffs were considering the purchase from David Parrella of Lots 28 to 42 inclusive the administrator of the Planning Board advised Mr. Parrella by letter dated December 27, 1985 that "According to the Planning Board's records, the subdivision known as Village III is an actively approved subdivision." (Exhibit No. 1).

4. The plaintiffs accordingly took title to Lots 28 to 42 inclusive on the plan by deed from David M. Parrella dated April 8, 1986 and recorded with said Deeds in Book 16899, Page 33 (Exhibit No. 13). The deed recites that Lots 30-39 are subject to a prior mortgage granted to Louise Brown Filamond recorded with Middlesex South District Registry of Deeds in Book 12334, Page 71 and assigned to Salvatore Macera and Michael J. Macera, Trustees of M and M Realty Trust by instrument recorded with said Registry of Deeds in Book 13629, Page 669 (Exhibit No. 13).

5. Immediately after the recording of said deed Messrs. Chance and Fisher as trustees granted a mortgage to their seller David M. Parrella dated April 8, 1986 and recorded in Book 16899, Page 34 (Exhibit No. 14). This mortgage was discharged by instrument dated June 24, 1987 and recorded in Book 18257, Page 302 (Exhibit No. 15).

6. In April of 1986 the Planning Board granted permission to the plaintiffs to complete the construction of a dwelling on Lot 42 and to install utilities and construct High View Road in its entirety. (Exhibit No. 2).

7. The plaintiffs then filed with the Board for approval an ANR plan, and it was at the hearing on this plan which apparently was never reached for consideration that the Board considered the question of rescission of the 1974 subdivision plan. While there are allegations in the complaint that statutory notice was lacking (see Young v. Planning Board of Chilmark, 402 Mass. 841 (1988)). Exhibit No. 5 is a copy of the notice given by the Planning Board as to a hearing on August 11, 1986 to consider a modification, amendment or rescission of the approval of the subdivision.

8. At the hearing the Board voted to rescind the subdivision, which vote appears to encompass the entire subdivision and not just the portion acquired by the plaintiffs. The Board did not itself sign a decision citing the reasons for its action in adopting the vote taken at the meeting. The reasons for the vote are set forth in a letter from the Planning Board administrator to the City Clerk and included the conveyance of Lot 42 prior to its release from the covenant, a similar conveyance by a prior owner of Lots A and B, the construction of a dwelling on Lot A, B and 42A prior to the release from covenant, failure to install utilities in accordance with the approved plans and conditions and an inappropriate amount of time completion of the subdivision.

9. At the time of the Board's vote not only had the Lots 28 to 42 been conveyed to the plaintiffs but many other portions of the subdivision were no longer owned by the original developer whose name does not appear in the record of this case.

10. The construction of the dwellings was authorized by the agreement with the City of Woburn; it was the City, too, that agreed to complete the construction of the roads with certain of its expenses being assumed by the foreclosing mortgagee. Authority of the City to enter into the agreement was questioned at the Planning Board hearing, but it has not been argued before me. The agreement appears to be a good faith effort to cure an intolerable situation.

11. General Laws Chapter 41, §81W specifically provides:

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 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 of all the lots not previously released by the planning board.

No evidence was introduced at the trial by either party as to whether the lots in question here were all of the remaining lots not previously released by the Planning Board.

12. Even though the plaintiffs did not establish their purchase as grounds for barring rescission, there was a prior mortgage on record which had that effect. It's not clear to me that the Parrella mortgage qualifies under the statute in view of his intimate familiarity with the subdivision, but the one held by Filamond may.

13. Section 81W also sets forth the conditions precedent to the rescission taking effect by providing for 1) the recording of the plan as originally approved or a copy thereof together with a certified copy of the vote of the planning board making such modification, amendment, rescission or change, 2) an endorsement has been made on the plan originally approved as recorded referring to such vote and where it is recorded, and 3) such vote is indexed in the grantor index under the names of the owners of record of the land affected. There is no evidence that any of these steps has ever been taken. Accordingly the rescission is not yet effective.

14. The Planning Board was without authority under the provisions of G.L. c. 41, §81W to rescind the approval of the subdivision plan. At the time of its vote to rescind there was a prior outstanding mortgage of record to a third party. There also was a mortgage of record to David M. Parrella, but as a previous owner of the premises and one entirely familiar with the subdivision problems I cannot believe that the general court intended that those in positions similar to his be protected from rescission. The owners, however, are another matter since they bought a subdivision which had been commenced by others and as to which they had been assured by the city was still a viable development. If they owned all the remaining lots at the time of the rescission, their purchase does not bar rescission. The record on this is cloudy. Moreover, the Board's attempt to rescind the plan flies in the face of the statutory language. If, in fact, the plaintiffs acquired title to all the lots not previously released by the Planning Board, then they do not benefit from the statutory language prohibiting rescission, but neither party introduced any evidence as to this. Once the plaintiffs had shown their acquisition in good faith under a valuable consideration, the City should have presented evidence of the previous releases if, in fact, the plaintiffs' holdings are the only remaining land shown on the plan. Similarly, it appears to the Court that the rescission order has not as yet become effective since there was no showing that the provisions of the third paragraph of Section 81W have been met. Accordingly the Board's vote at this stage is ineffective.

On all the evidence therefore I find and rule that the plaintiffs are the purchasers in good faith and for value of lots on the subdivision plan and that accordingly the Board was without authority to rescind its approval of the plan, there being no showing that the plaintiffs were the owners of all of the remaining lots on the plan. Similarly it has not been shown in any event that the vote to rescind took effect in view of the conditions precedent which must be met to comply with the statute. However, this decision does not resolve the basic question as to how to assure the completion of the subdivision which has troubled the Board for many years; the present economy is such that development has ceased in many communities and not only as to a troubled subdivision such as that before me. In order to resolve the outstanding legal questions as soon as possible I recommend that if the plaintiffs so elect, the Approval Not Required Plan prepared on behalf of the plaintiffs be filed with the Board in accordance with the statutory provisions; that the parties agree on the appropriate grade for the subdivision having in mind that a grade of fifteen may be preferable for the homes to be built on the lots and that a lower grade may be deemed preferable for those using the ways but that on a weighing of all the factors, a grade of twelve would seem appropriate; that the plaintiffs undertake to construct the streets in accordance with the existing specifications as modified herein and that the City be released from the 1977 obligations that the record shows that it incurred; and that the lots on which homes have been constructed and built, i.e., Lots 42A and 42B (the letter designations apparently referring to the denomination of the lots on the ANR plan) be released from the existing covenant. I therefore remand this matter to the Planning Board for further action in accordance with this decision. The Court will retain jurisdiction.

Judgment accordingly.