Subdivision Plan: Rescision or Modification
Streets and Ways
Sometimes a subdivision plan is rescinded or modified. The question is, what effect does this rescission or modification have on any particular lot in the subdivision. The answer to this question is found in G.L.c. 41, §81W, which states in part:
A planning board, on its own motion or on the petition of any person interested, shall have power to modify, amend or rescind its approval of a plan of a subdivision, or to require a change in a plan as a condition of its retaining the status of an approved plan. All of the provisions of the subdivision control law relating to the submission and approval of a plan of a subdivision shall, so far as apt, be applicable to the approval of the modification, amendment or rescission of such approval and to a plan which has been changed under this section.
But the statute provides a "safe harbor" in the case of lots that have been individually sold or mortgaged:
No 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; 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.
Note two things about this "carve-out": (1) individually sold lots and the "rights appurtenant thereto" (this would include access to the lot) will not be subject to a recision or modification and but (2) "bulk sales" of all the lots or those remaining that have not been released from the planning board covenant will be subject to a recision or modification.