TOWN OF MILLBURY, by and through its PLANNING BOARD vs. EDWIN C. CARLSTROM, JANET CARLSTROM, TAYLOR P. DONNELLY, JANET GABREE, RICHARD GABREE, CONSTANCE DUMAS, JOSEPH DUMAS, JUNE JOHNSON, and RICHARD JOHNSON; JOSEPH H. JOHNSON, as TRUSTEE OF PEACHA WEST REALTY TRUST

Plaintiff filed its Verified Complaint on December 28, 2006, seeking, pursuant to G. L. c. 41, § 81Y and G. L. c. 185, § 1(q), to recover from all Defendants the sum of $10,515.65 in unpaid consultant fees accrued in connection with Defendant Joseph H. Johnson (“Joseph”), Trustee of Peacha West Realty Trust’s (the “Trust”) application for approval of a definitive subdivision plan on property (“Locus”) owned by Defendants Taylor P. Donnelly (“Donnelly”), Joseph and Constance Dumas (the “Dumases”), Richard and Janet Gabree (the “Gabrees”), Richard and June Johnson (the “Johnsons”), and Edwin and Janet Carlstrom (the “Carlstroms”) (Defendants Donnelly, the Dumases, the Gabrees, the Johnsons, and the Carlstroms together, the “Owner Defendants”). An Affidavit of Jeffrey M. Walsh (employee of Graves Engineering, Inc.) was filed with the Complaint. Plaintiff’s Motion for Attachment of Real Estate was allowed on January 16, 2007, as to Locus, to be effective upon service of process on all the Owner Defendants. [Note 1] Donnelly and the Dumases filed Answers on January 18, 2007; [Note 2] the Gabrees filed their Answer on January 19, 2007; the Johnsons filed their Answer on February 14, 2007; and the Carlstroms filed their Answer on July 9, 2007. [Note 3] A case management conference was held on June 22, 2007. [Note 4]

The Owner Defendants (but not the Trust) filed a Motion for Summary Judgment on February 8, 2008, together with supporting memorandum, Concise Statement of Legal Elements, and Affidavits of Joseph Dumas and Howard J. Potash, Esq. Plaintiff filed its Opposition and Cross-Motion on April 7, 2008, together with supporting memorandum, Statement of Material Facts, and Motion to Strike portions of the Affidavit of Joseph Dumas. A hearing was held on all motions on June 30, 2008, and all motions were taken under advisement. Plaintiff filed its Supplemental Memorandum on July 3, 2008, together with a copy of the Purchase and Sale Agreement between the Owner Defendants and the Trust (the “Agreement”).

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat=l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

I find that the following facts are not in dispute:

1. The Owner Defendants own Locus, a vacant thirty-acre parcel of land located off Carlstrom Lane in Millbury and known as Lot 2 on Millbury Assessors’ Map 69, by deed dated October 28, 1969, and recorded with the Worcester County Registry of Deeds in Book 3233, Page 443.

2. Joseph, as Buyer, executed the Agreement with the Owner Defendants, as Sellers, on April 27, 2004, for the purchase of Locus for $700,000. Paragraph 6 of the Agreement states:

Conveyance shall take place at 2:00 p.m. at the Worcester County Registry of Deeds on or before the sixtieth day following BUYER’s receipt of all approvals necessary, including the application appeals period, for a minimum twelve lot residential subdivision . . . On or before ninety (90) days from the execution of this Agreement BUYER shall file with the Millbury Planning Board the correct form along with the required number of copies of a subdivision plan, said application being a minimum twelve (12) lot residential subdivision. BUYER is responsible for all engineering costs and related expenses associated with the proposed creation of the subdivision. SELLER herein agrees to sign any and all applications and/or documents required by the Town of Millbury of the record Owner.

Paragraph 5 of the Agreement, titled “Purchase Price,” states that $5,000 was paid by the Trust to the Owner Defendants on March 5, 2004, and that $5,000 was to be paid by the Trust to the Owner Defendants upon the execution of the Agreement. [Note 5] An amendment to the Agreement dated December 22, 2004 (the “Amendment”), provided that Joseph would apply for either a Special Permit for an Open Space Community Development consisting of fourteen (14) single-family lots or a conventional subdivision plan to develop Locus. The Amendment otherwise provided that “[a]ll other terms and conditions of said Agreement shall remain the same . . . .”

3. The Trust, as applicant, executed an Application for Approval of a Preliminary Plan dated May 20, 2004, which application was also signed by Janet Gabree as “Janet Gabree, et al” on behalf of the Owner Defendants. [Note 6] The Trust executed a second Application for Approval of a Preliminary Plan dated January 25, 2005, which application was also signed by Janet Gabree as “Janet Gabree, et al” on behalf of the Owner Defendants.

4. On June 15, 2005, the Trust filed an Application for Approval of a Definitive Subdivision Plan (the “Application”) with Plaintiff relative to Locus. The subdivision was to be known as “Old Common Estates” (the “Subdivision”). Joseph was listed as the “Contact Person.” The Application stated that “[t]he undersigned hereby applies for the approval of said DEFINITIVE plan by the Board, and in furtherance thereof hereby agrees to abide by the Board’s Rules and Regulations.” The Application was executed by the Trust as applicant and by Janet Gabree as “Janet Gabree et al” on behalf of the Owner Defendants.

5. The Application Review, signed by Joseph on May 26, 2005, and filed with the Application, stated:

I, Joseph H. Johnson, Jr. Tr. hereby request that my application for Old Common Estates be reviewed by the Millbury Planning Department whenever possible. I understand that I will be billed for review of said application at an hourly rate determined by the Town Treasurer for Planning and Secretarial support. Payments to the Town of Millbury will be in accordance with Article I, Section 14.6, 14.7 and 14.8. I, Joseph H. Johnson, Jr. Tr. hereby request that my application for Old Common Estates be reviewed by consultant(s) at my expense on behalf of the Town of Millbury Planning Board. I understand that the Planning Board shall hire the consultants of their choice in accordance with Section 53G, G. L. Chapter 44. Payments to the Town of Millbury will be in accordance with Article I, Section 14.6, 14.7 and 14.8.

6. Plaintiff retained the services of Graves Engineering, Inc. (“Graves”) to review the Application and the Subdivision plan.

7. Upon filing of the Application, the Trust paid a review application fee of $2,100 to Plaintiff. $1,500 of that fee was applied as a filing fee and the remainder ($600) was held in escrow to pay consultants.

8. Plaintiff opened the public hearing on the Subdivision on July 11, 2005, and held seven public meetings on the Subdivision, the last being held on March 27, 2006. At several of the hearings, Joseph Dumas attempted to speak but was told that only the Trust could speak on behalf of the applicant.

9. The Trust revised the Subdivision plan four times and submitted the revisions to Plaintiff for review. The Trust also filed other subdivision-related documents, including a soil evaluation and percolation test results, an environmental narrative, a “post-development plan,” and several versions of a hydrology report with supporting data. Graves reviewed all documents and provided Plaintiff with four letters summarizing the results of its review.

10. On August 15, 2005, Graves submitted an invoice to Plaintiff for $2,246.65. The Trust paid $1,646.65 which, together with the $600 held in escrow, satisfied the bill in full.

11. On September 16, 2005, Graves submitted an invoice to Plaintiff for $1,496.25. This bill was submitted to the Trust on October 13, 2005. This bill has not been paid by the Trust.

12. On October 26, 2005, Graves submitted an invoice to Plaintiff for $3,999.24. This bill was submitted to the Trust on February 2, 2006. This bill has not been paid by the Trust.

13. On January 4, 2006, Graves submitted an invoice to Plaintiff for $1,179.83. This bill was submitted to the Trust on February 2, 2006. This bill has not been paid by the Trust.

14. Plaintiff notified the Trust by certified letter dated March 1, 2006, of unpaid invoices totaling $6,837.06, and indicated that no more work would be done on the Subdivision until the invoices were paid. [Note 7]

15. On February 22, 2006, Graves submitted an invoice to Plaintiff for $2,128.83. This bill was submitted to the Trust on March 3, 2006. This bill has not been paid by the Trust.

16. Plaintiff notified the Trust by certified letter dated March 16, 2006, of unpaid invoices, and demanded immediate payment.

17. On March 21, 2006, Town Counsel for the Town of Millbury (“Town Counsel”) submitted an invoice to Plaintiff for $1,363.50, relative to legal services rendered on the Subdivision. This bill was submitted to the Trust on the same day. This bill has not been paid by the Trust.

18. At the March 27, 2006, public hearing on the Subdivision, the Trust indicated that it would not pay the outstanding bills owed to Graves and Town Counsel. At that time, Plaintiff closed the public hearing and voted to deny the Application (the “Denial”). The Denial was filed with the Millbury Town Clerk on March 28, 2006, and the Trust appealed the Denial to this court on April 13, 2006 (Misc. Case No. 321700). By Decision and Judgment dated November 7, 2006, this court allowed the Planning Board’s Motion to Dismiss on procedural grounds. This decision was not appealed.

19. On May 15, 2006, Town Counsel submitted an invoice to Plaintiff for $348 for additional legal services rendered on the Subdivision. Plaintiff submitted this bill to the Trust the same day. This bill has not been paid by the Trust.

20. The Town of Millbury has appropriated funds to pay all outstanding bills to Graves and Town Counsel.

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To begin, I must first address Plaintiff’s Motion to Strike portions of the Affidavit of Joseph Dumas. Plaintiff’s Motion to Strike is ALLOWED IN PART, as described below. Plaintiff argues that Joseph Dumas’ interpretations of the Agreement in paragraph 5 (the second and third sentence) should be stricken because the document speaks for itself. This court agrees. Plaintiff also argues that paragraphs 6, 20(2), 22, 24, and a portion of paragraph 15 (“which is not appropriate and we have received no relief.”) should be stricken because they give personal opinion. This court agrees. Furthermore, because the affiant does not state that the affidavit is on personal knowledge, all references to the other Owner Defendants in paragraphs 12, 13, and 23 will be struck. Finally, Plaintiff argues that paragraphs 18, 19, 20(1), and Exhibit D (Minutes of the meeting of the Board of Fire Engineers) should be struck because they contain inadmissible hearsay, and this court agrees. [Note 8] This court will also strike those corresponding portions of the Owner Defendants’ brief which rely on the stricken portions of the Joseph Dumas’ Affidavit.

Section 81L of G. L. c. 41 (titled “Definitions”) states, “In construing the subdivision control law, the following words shall have the following meaning, unless a contrary intention clearly appears:– ‘Applicant’ shall include an owner or his agent or representative, or his assigns.”

Section 2 of the Rules and Regulations Governing the Subdivision of Land in the Town of Millbury (the “Rules and Regulations”) defines “Applicant” as “person applying for approval of plan hereunder, including owner, agent or assigns of the owner.” [Note 9]

Section 6.01 of the Rules and Regulations, titled “Application Procedure,” provides that

Any Person who desires approval of a Definitive Plan of a subdivision shall:

1. Submit to the Planning Board the following . . . :

. . . .

f. A submittal fee of $1500.00 plus $50.00 per lot proposed within the subdivision is required. This money will be used to set up funds available for the provisions of Section 6.12. Any monies not used in fulfilling the requirements of Section 6.12 will be returned to the developer. In the event that thorough review of the subdivision required the Town to incur expenses exceeding the submittal fee collected, the applicant shall bear such additional expenses.

. . . .

i. If necessary in order to determine compliance with the requirements or intent of this Regulation as specified in Section 1.01, the Board may require specialized engineering or specialized environmental analysis to be prepared at the expense of the applicant.

. . . .

n. The board may require soil surveys and/or test pits or borings to be prepared at the applicant’s expense to determine the suitability of the land for the proposed ways, drainage and utilities.

Section 6.12 of the Rules and Regulations, titled “Expenses” states:

All expenses for advertising, engineering, legal review, professional planning review, construction inspection, recording and filing of plans and documents and all other expenses in connection with or for a subdivision shall be borne by the applicant.

Plaintiff argues that all Defendants owe it the sum of $10,515.65 for fees related to its review of the Subdivision plan. The Owner Defendants argue that they have no obligation to pay such fees because they were not aware of the fees. They do not dispute the fact that the Trust owes such fees, nor do they argue the amounts of the fees.

There is no question that the Application filed with Plaintiff was executed by both the Trust, as Applicant, and the Owner Defendants, as Property Owners. [Note 10] Furthermore, by signing the Application, all signatories agreed to abide by the Rules and Regulations. Section 6.12 of the Rules and Regulations requires that all expenses associated with filing plans and documents in connection with a subdivision “shall be borne by the applicant.” The issue in the case at bar is, then, whether the Owner Defendants are “applicants” pursuant to the Rules and Regulations and, thus, liable for those fees incurred with respect to the Application and the Subdivision plan. As previously stated, an “applicant” pursuant to the definition section of the Rules and Regulations is a “person applying for approval of plan hereunder, including owner, agent or assigns of the owner.” Under the plain language of this definition, an “applicant” is both the party seeking approval in addition to the property owner, agent, or assigns. As such, the Rules and Regulations require that both the applicant and the owner are responsible for the fees incurred in the subdivision process.

The Owner Defendants contend that because the Application includes two signature lines, one designated as the Applicant’s Signature and a separate line reserved for a Property Owner’s Signature, the Application is confusing and it is reasonable to infer that the applicant is separate from the owner. This court is unpersuaded by this argument. As discussed, supra, the Rules and Regulations are clear as to their definition of an “applicant” and that applicants must pay those fees associated with the subdivision review process. Ignorance of the Rules and Regulations is no defense here. Furthermore, the Owner Defendants do not claim that the Rules and Regulations violate the standard for vagueness first set forth by the Supreme Judicial Court in Castle Estates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. 329 , 334 (1962) (requiring subdivision regulations to be “comprehensive, reasonably definite, and carefully drafted, so that owners may know in advance what is or may be required of them and what standards and procedures will be applied to them”).

As a result of the foregoing, I find that the Trust and the Owner Defendants are each “applicants” as defined in the Rules and Regulations and thus liable, jointly and severally, for those fees incurred with respect to the Application and the Subdivision plan, in the amount of $10,515.65.

In its Complaint, Plaintiff’s prayer for relief includes a request for $10,515.65 plus interest. In Plaintiff’s supplemental brief, to which the Owner Defendants failed to respond, Plaintiff refers this court to G. L. c. 231, §§ 6C and 6H, and G. L. c. 235, § 8. G. L. c. 231, § 6C (“Section 6C”) provides prejudgment interest at a rate of twelve percent per year “from the date of breach or demand” in “all actions based on contractual obligations,” upon a finding or order for judgment of pecuniary damages. G. L. c. 231, § 6H states that

[i]n any action in which damages are awarded, but in which interest on said damages is not otherwise provided by law, there shall be added by the clerk of court to the amount of damages interest thereon at [twelve per cent per year as stated in G. L. c. 231, § 6B] to be determined from the date of commencement of the action even though such interest brings the amount of the verdict or finding beyond the maximum liability imposed by law.

G. L. c. 235, § 8 provides for post-judgment interest.

The main purpose of Section 6C is “to compensate a damaged party for the loss of use or the unlawful detention of money.” Conway v. Electro Switch Corp., 402 Mass. 385 , 390 (1988). Prejudgment interest is awarded “so that a person wrongfully deprived of the use of money is made whole for his loss.” Bank v. Thermo Elemental Inc., 451 Mass. 638 , 662 (2008) (internal citations omitted). Under Section 6C, prejudgment interest accrues from the date of “breach or demand,” or, if such date is not established, from the date the matter is commenced. In the case at bar, while the Trust received various invoices from Plaintiff, the Owner Defendants received no such demands for payment. Pursuant to Section 6C, I find that due to the absence of a clear breach or demand date with respect to the Owner Defendants, interest shall accrue at a rate of twelve percent per year beginning on the date this matter was commenced (December 28, 2006).

While it is clear that the Trust, pursuant to the Agreement, has agreed to be responsible for the subdivision fees relative to the Owner Defendants, Plaintiff was not a party to the Agreement and is not bound by those terms. There is no question that the Owner Defendants have recourse against the Trust to collect the fees, but, as an applicant under the Rules and Regulations, they are jointly responsible with the Trust to Plaintiff. Plaintiff attempted to collect from the Trust but the Trust has not participated in this action and has been defaulted.

The Owner Defendants argue that they were not told by Plaintiff that they were liable for the Subdivision fees, but they are responsible for their actions and they signed the Application which states their responsibility. The Owner Defendants also argue that they were left out of the Subdivision process in that they were not allowed to participate in the Subdivision hearings and they were not timely sent copies of the Subdivision bills to pay. Plaintiff timely sent notices of all bills to Joseph, the “Contact Person.” In addition, Plaintiff argues that subdivision land owners benefit from the subdivision process because they get higher values for their property, and points out that the Owner Defendants received a non-refundable deposit of $10,000 as a part of the process. [Note 11]

Finally, the Owner Defendants assert that Plaintiff is estopped from now arguing that the Owner Defendants are applicants given that Plaintiff previously denied the Owner Defendants (specifically Joseph Dumas) from speaking at public hearings during the application process. [Note 12] The doctrine of estoppel does not generally apply “against the government in the exercise of its public duties, or against the enforcement of a statute.” Gamache v. Mayor of N. Adams, 17 Mass. App. Ct. 291 , 294 (1983). Furthermore, the Supreme Judicial Court has been “reluctant to apply principles of estoppel to public entities where to do so would negate requirements of law intended to protect the public interest.” Phipps Prods. Corp. v. Massachusetts Bay Transp. Auth., 387 Mass. 687 , 693 (1982). Here, as discussed, supra at note 9, requiring subdivision applicants to be record owners serves to protect the public. Finally, a successful estoppel claim requires: “(1) a representation intended to induce reliance on the part of a person to whom the representation is made; (2) an act or omission by that person in reasonable reliance on the representation; and (3) detriment as a consequence of the act or omission.” Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Court, 448 Mass. 15 , 27_28 (2006) (quoting Bongaards v. Millen, 440 Mass. 10 , 15 (2003)). In the case at bar, the Owner Defendants fail to provide evidence that they were harmed as a result from being denied the opportunity to speak as owners during the public application process. Accordingly, the Owner Defendants’ defense of estoppel would fail even if Plaintiff was not a municipal planning board. In light of the above, I find that Plaintiff’s actions at the public hearings on the Subdivision do not estop Plaintiff from arguing that the Owner Defendants are “applicants” pursuant to the Rules and Regulations.

As a result of the foregoing, I ALLOW Plaintiff’s Motion for Summary Judgment and DENY the Owner Defendants’ Cross-Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: June 1, 2009