Matthew and Christine McIntyre, Joseph and Jane Murphy, and Martine D. Murphy, all residents of Braintree, appealed to the Braintree Zoning Board of Appeals the issuance of a building permit to defendants Mento Enterprises, Inc. and JJM Myrtle Street Corporation. The plaintiffs claim, among other things, that a variance for the subject property lapsed and that because the ZBA failed to timely consider their appeal it was therefore constructively approved.
The plaintiffs acknowledge that they did not file their appeal within 30 days of the issuance of the building permit, which would ordinarily deprive the ZBA and this court of subject matter jurisdiction to consider it. The plaintiffs claim that they can prove that the ZBA is estopped from denying subject matter jurisdiction because they reasonably relied on alleged statements of the Braintree Town Counsel and the Mayor that led them to believe they had additional time to file. The defendants have moved to dismiss the complaint for lack of subject matter jurisdiction and the plaintiffs have moved for summary judgment. Drawing all inferences in the plaintiffs favor, it is undisputed that they filed the appeal late, and their claim of reliance and estoppel does not lie. The ZBA and this court lack subject matter jurisdiction over this case; the motion to dismiss is allowed and the summary judgment motion denied. The complaint shall be dismissed.
The plaintiffs Matthew and Christine McIntyre, Joseph and Jane Murphy, and Martine D. Murphy filed their Complaint on January 30, 2014. On February 19, 2014, the defendants filed Defendants Joint Motion to Dismiss, Defendants Memorandum in Support of their Joint Motion to Dismiss and the Appendix to Defendants Joint Motion to Dismiss. On March 14, 2014, the plaintiffs filed Plaintiffs Cross-Motion for Summary Judgment, Opposition to the Defendants Joint Motion to Dismiss and Memorandum in Support of Plaintiffs Motion for Summary Judgment, Plaintiffs Response to Defendants Statement of Material Facts in Support of Plaintiffs Motion for Summary Judgment, and the Appendix to Plaintiffs Cross-Motion for Summary Judgment, including the affidavits of Jane Taubner Barney and Christine McIntyre. On April 1, 2014, the Municipal Defendants Motion to Stay Plaintiffs Cross-Motion for Summary Judgment and the Municipal Defendants Memorandum in Support of Motion to Stay Consideration of Plaintiffs Cross-Motion for Summary Judgment were filed. On April 7, 2014, the plaintiffs filed Plaintiffs Opposition to Municipal Defendants Motion to Stay Plaintiffs Cross-Motion for Summary Judgment. On April 17, 2014, the Municipal Defendants Motion to Stay Plaintiffs Cross-Motion for Summary Judgment was heard and denied. On April 22, 2014, the plaintiffs filed the Amended Statement of Material Facts in Support of Plaintiffs Motion for Summary Judgment. On April 25, 2014, the defendants filed Defendants Joint Memorandum in Opposition to the Plaintiffs Cross-Motion for Summary Judgment. On May 9, 2014, the plaintiffs filed Plaintiffs Response to Defendants Memorandum in Opposition to Plaintiffs Cross-Motion for Summary Judgment. Defendants Joint Motion to Dismiss and Plaintiffs Cross-Motion for Summary Judgment were heard on May 13, 2014 and taken under advisement. This Memorandum and Order follows.
Motion to Dismiss Standard
Because the Motion to Dismiss shall be allowed and the complaint dismissed, there is no need to consider the Motion for Summary Judgment. Therefore, the court will apply the standard for a motion to dismiss. In considering a motion to dismiss for failure to state a claim, the court accepts as true well-pleaded factual allegations and reasonable inferences drawn therefrom, Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004), but does not accept legal conclusions cast in the form of factual allegations. Iannacchino v. Ford Motor Co., 451 Mass. 623 , 633 (2008), quoting Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000). Generally, if matters outside the pleadings are presented to and not excluded by the court, the motion will be treated as a motion for summary judgment. Mass. R. Civ. P. 12(b), 12(c). The court may, however, take into account matters of public record and documents integral to, referred to, or explicitly relied on in the complaint, whether or not attached, without converting the motion to a motion for summary judgment. Marram, 442 Mass. at 45 n.4; Schaer, 432 Mass. at 477; Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550 , 555 (2008); Shuel v. DeIeso, 16 LCR 329 , 329 n.2 (2008). Therefore, the court will accept as true the allegations of the complaint for the purposes of the Motion to Dismiss. The court will consider the various recorded instruments submitted with the complaint and the Motion to Dismiss, and other documents referred to in the complaint.
1. The plaintiffs Matthew and Christine McIntyre are husband and wife and reside at 2 Spruce Street in Braintree, Norfolk County, Massachusetts.
2. The plaintiffs Joseph and Jane Murphy are husband and wife and reside at 37 Myrtle Street, Braintree, Norfolk County, Massachusetts.
3. The plaintiff Martine D. Murphy resides at 42-44 Myrtle Street, Braintree, Norfolk County, Massachusetts.
4. The defendant Town of Braintree (Town) is a Massachusetts municipal corporation situated in Norfolk County with principle offices at One JFK Memorial Drive in Braintree, Norfolk County, Massachusetts.
5. The defendant Russell Forsberg is the Building Inspector/Code Compliance Officer (Building Inspector) for the Town with his principle offices at 90 Pond Street, 2nd Floor, Braintree, Norfolk County, Massachusetts, and he is the Zoning and Enforcement Officer for the Town of Braintree pursuant to Section 135-201 of the Braintree Zoning By-Law (By-Law).
6. The defendants Stephen Karll, Michael Calder, Michael Ford and Richard McDonough are members of the Zoning Board of Appeals of Braintree (Board).
7. The defendant Mento Enterprises, Inc. (Mento Enterprises) is a Massachusetts business corporation with principle offices at 1157 Washington Street, Braintree, Norfolk County, Massachusetts.
8. The defendant JJM Myrtle Street Corporation (JJM) is a Massachusetts business corporation with principle offices at 1157 Washington Street, Braintree, Norfolk County, Massachusetts. JJM is the record owner of a parcel of land on Myrtle Street in Braintree consisting of 6,608 square feet, more or less, known and numbered as 38 Myrtle Street (the Property), by a deed dated November 21, 2013 and recorded in the Norfolk Registry of Deeds (registry) at Book 31912, Page 365.
9. JJM holds title to the Property through a deed from the related entity, known as Mento Enterprises, which utilizes the same address, with the same president as JJM, John Mento.
10. The Property is, and has been at all times material hereto, located in the Residential B (RB) zoning district. The RB district requires a minimum lot area of 15,000 square feet with a minimum lot width of 100 feet.
11. In May 1986, the then-owners of a larger lot that included the Property obtained a variance to allow them to divide that lot into two lots, one of which is the Property. After obtaining the variance, the owners had a plan endorsed pursuant to G.L. c. 41, § 81P (the ANR plan) and recorded the ANR plan in the registry in February 1987.
12. The Property was not transferred, and no building permit was applied for or granted, within one year of the grant of the 1986 variance.
13. In April of 2013 the plaintiffs learned that Joyce Anderson, the previous owner of the Property, had listed it for sale.
14. During the spring and summer of 2013 several of the plaintiffs met and/or spoke with various town officials, including the Mayor, to present to those officials evidence that the Property was not a buildable lot under the By-Law and that the 1986 variance had lapsed as a matter of law.
15. On August 13, 2013, a building permit was issued to JJM and Mento for the Property.
16. On August 14, 2013, construction commenced on the subject property; none of the plaintiffs were provided with notice prior to the beginning of construction.
17. After August 14, 2013 (exactly when is not clear), the plaintiffs inquired of the office of the Building Inspector as to whether a building permit had issued for the Property. The plaintiffs were told that a building permit had issued on August 13, 2013, but were allegedly refused access to review or obtain a copy of such permit.
18. The plaintiffs believed the issuance of the building permit to be in violation of the By-Law, as the 1986 variance had lapsed.
19. On September 12, 2013, plaintiff Christine McIntyre went to the Braintree Town Hall, intending to file an appeal of the issuance of the building permit. She attempted to speak to the Mayor, but, after being told he was busy, she asked to speak with the Town Solicitor. Ms. McIntyre asked the Town Solicitor whether the Town was going to take any action in regards to the building permit; she told the Solicitor that the plaintiffs, on whose behalf she was speaking, had to make a decision that day because it was her understanding that September 12 was the deadline for filing an appeal. In response, the Town Solicitor told Ms. McIntyre that the deadline was not until September 27 and that the plaintiffs had additional time. This deadline was later confirmed by the Mayor and memorialized in writing by the Town Solicitor. The plaintiffs delayed filing the appeal in reliance on these misrepresentations so that they could better prepare.
20. On September 27, 2013, the date indicated as the final date for appeal by the Town Solicitor, the plaintiffs filed an appeal from the Building Inspectors issuance of the building permit with the Board.
21. Thereafter, in due course, a public hearing on the appeal was scheduled by the Board for November 26, 2013. At that hearing, after hearing evidence from the petitioner, the Board voted to defer the petition to the December 17, 2013 Zoning Board of Appeals meeting. On that later date the matter was continued to January 8, 2015.
22. On January 8, 2014, the Board met and heard further evidence on the appeal, after which the Board closed the public hearing.
23. As of January 17, 2014, no decision of the Board on the appeal had been filed with the Braintree Town Clerk. More than one hundred days having elapsed since the filing of the appeal, on January 17, 2014, the plaintiffs filed notice of the constructive approval of their appeal with the Braintree Town Clerk, in accordance with G. L. c. 40A, § 15.
24. Later that same day, on January 17, 2014, a decision of the Board on the plaintiffs appeal, purporting to deny the requested relief for failure to timely file the appeal, was filed in the office of the Braintree Town Clerk.
The plaintiffs complaint raises claims under (1) G. L. c. 40A, § 17; (2) G. L. c. 249, § 5; and (3) G. L. c. 231A. The defendants move to dismiss these claims pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6). The plaintiffs cross-move for summary judgment on each claim, on the basis that there are no genuine issues as to any material fact and that they are entitled to judgment in their favor as a matter of law. Applying the standard for a motion to dismiss, the plaintiffs complaint shall be dismissed for lack of subject matter jurisdiction because, accepting the facts stated in the complaint as true and drawing all inferences in their favor, the plaintiffs did not appeal the building permit within the 30-day deadline and have no basis for alleging that the Board is estopped.
I. Failure to Timely File an Appeal Creates a Jurisdictional Defect
An appeal of a building permit must be filed with the board of appeals within thirty days of its issuance. G. L. c. 40A, § 15. The building permit in question was issued to JJM and Mento Enterprises on August 13, 2013; the deadline for filing an appeal of that building permit was September 12, 2013. The plaintiffs filed the appeal on September 27, 2013, fifteen days after that deadline. The untimeliness of the appeal creates a jurisdictional defect:
We interpret §§ 7, 8 and 15 to mean that when a party with adequate notice of the issuance of a building permit claims to be aggrieved by the permit on the ground that it violates the zoning code, the party must file an administrative appeal within thirty days of the permits issuance; a failure to do so deprives the board or other permit granting authority, and later the courts, of jurisdiction to consider the appeal.
Connors v. Annino, 460 Mass. 790 , 797 (2011).
Ms. McIntyre had adequate notice of the issuance of the building permit; she and her co- plaintiffs were informed that a building permit was issued on August 13, 2013 by the office of the Building Inspector sometime after construction commenced on the Property. They were prepared to file an appeal on September 12, 2013, the final day of the appeal deadline. Failure to timely file pursuant to § 15, where there is adequate notice, constitutes a jurisdictional defect. This jurisdictional defect deprived the Board of the ability to consider the appeal, and as a result, the plaintiffs cannot claim approval of the appeal. Id.; Halligan v. Brown, 7 LCR 377 , 379 (1999).
II. Estoppel Is Not Applicable
The plaintiffs argue that the Board should be estopped from asserting that their appeal was not timely because Ms. McIntyre received misinformation regarding the appeal deadline from the Town Solicitor. Ms. McIntyre alleges, and the court accepts for the purposes of the motion to dismiss, that the Town Solicitor told her the deadline for filing an appeal was September 27, 2013; this date was later confirmed by the Mayor and memorialized in writing by the Town Solicitor. Ms. McIntyre and the other plaintiffs used the extra time to better prepare the appeal, and filed their appeal on September 27, 2013. Because Ms. McIntyre relied on the incorrect deadline given by the Town Solicitor to her and the other plaintiffs detriment, they argue, estoppel should apply here. In order for estoppel to apply, it must appear that one has been induced by the conduct of another to do something different from what otherwise would have been done and which has resulted to his harm and that the other knew or had reasonable cause to know that such consequence might follow. OBlenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555 , 558 (1986), quoting Boston & A.R.R. v. Reardon, 226 Mass. 286 , 291 (1917). The reliance of the party seeking the benefit of estoppel must have been reasonable. Id. Massachusetts courts have repeatedly dismissed an application of estoppel against public entities, finding that the reliance of the party seeking the benefit of the doctrine was unreasonable as a matter of law. The SJC 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. Id., quoting Holahan v. Medford, 394 Mass. 186 , 191 (1985). As the Appeals Court stated, [w]e have been cited to no case (and have found none) where either the late filing of the appeal or the late filing of the notice of appeal in the town clerks office has been excused by applying the principles of estoppel. Burke v. Planning Bd. of Leicester, 74 Mass. App. Ct. 1110 , 2009 Mass. App. Unpub. LEXIS 711 (May 13, 2009) (Rule 1:28 Decision).
The plaintiffs argue that these cases, while indicating a reluctance to apply estoppel, do not foreclose it, and the current record is not extensive enough to determine whether her reliance was reasonable as a matter of law. The Board argues that the cases discussed above are similar enough to the situation at hand to warrant a finding that Ms. McIntyres and the other plaintiffs reliance was unreasonable as a matter of law. This question turns on whether, drawing all inferences in the plaintiffs favor, a factfinder could find that their reliance was reasonable and estoppel justified. The answer requires a fuller examination of the particular facts and circumstances of the estoppel cases decided by the SJC and the Appeals Court.
In OBlenes, the plaintiffs counsel relied on the statement of a clerk of the board of appeals that provided an incorrect deadline date for initiating an appeal of the boards decision. OBlenes, 397 Mass. at 557-558. This reliance resulted in the plaintiffs filing his judicial appeal one day late. Id. The SJC determined that this reliance was not reasonable as a matter of law. Counsel had an obligation to determine the date on which the boards decision was filed, and he was bound to take notice of the statutory requirements. Id. at 558. The plaintiffs attempt to distinguish OBlenes on the facts that (1) it concerned a judicial appeal, and (2) it was counsel who relied on the statement of a clerk of the board of appeals, not an ordinary citizen. Here, the Town Solicitor allegedly misinformed Ms. McIntyre, a townsperson. The Board responds by noting that Ms. McIntyre was aware of the actual appeal deadline as she visited the Braintree Town Hall on September 12, 2013 with the intent to file an appeal. In addition, the Board argues that one of the co-plaintiffs, an attorney who handled the appeal of the building permit, had the sophistication necessary to ascertain the deadline for filing an appeal, and that the obligation set out in OBlenes applies here. The court sees no reasonable distinction between the OBlenes plaintiffs reliance on the clerk and the plaintiffs reliance on Town Counsel.
In Burke, the plaintiff failed to meet the appeal deadline after relying on a facsimile sent from the planning board that had an incorrect date stamp on it. Burke, 74 Mass. App. Ct. 1110 , 2009 Mass. App. Unpub. LEXIS 711 (2009). The court stated that although the plaintiffs claim that the facsimile with the wrong date (obtained from the secretary of the planning board, not the town clerks office) is different from an oral misrepresentation, we see no difference as to the duty of the plaintiffs to ascertain the actual date from the clerks office. Id. The court found that Burkes reliance was unreasonable as a matter of law, and estoppel was not applicable. Id. The Burke court emphasized the duty of the plaintiffs to ascertain the deadline date from the clerks office; Ms. McIntyre spoke to the Town Solicitor. Speaking to the Town Solicitor is the equivalent of relying on the planning board; it is not the same as ascertaining the actual date from the clerks office.
In Calnan v. Planning Bd. of Lynn, which concerned an appeal of the planning boards approval of a subdivision plan, the plaintiffs missed the appeal deadline due to misinformation from the clerks office. Calnan v. Planning Bd. of Lynn, 63 Mass. App. Ct. 384 , 385-386 (2005). Calnan was present when the subdivision plan was approved by the planning board at a board meeting on February 4, 2003; the board filed a notice of approval of the plan with the clerks office two days after the vote. Id. at 385. The next week Calnan visited the clerks office and asked an employee if the board had filed anything regarding the subdivision plan. He was told by the employee that no filing had been made and that he would be informed if something was filed. Id. at 386. The clerk (relying on the filed notice of approval) contacted Calnan on or about February 26, 2003, once the deadline had passed. Id. Calnan filed a complaint with the Land Court fifty-eight days later, and seventy-eight days after the certificate of vote had been filed with the clerk. Id. at 387-388. The court determined that given what the plaintiffs knew, their actions were not reasonable. Id. at 391. Calnan knew that the subdivision had been voted on; he also knew by February 26, 2003 that there was a document on file that the clerk believed commenced the twenty-day appeal period. Id. at 390-391. There was no evidence that Calnan asked to examine the document identified by the clerk or the folder for the subdivision plan even after being told by the clerk that there was something on file that commenced the time period for filing the appeal. Id. at 391. Calnan illustrates the need for a plaintiff, like the plaintiffs here, to use reasonable effort in attempting to ascertain the correct information from the clerks office. Id.
The plaintiffs argue that resolving this question of estoppel will require findings of fact and the hearing of direct and circumstantial evidence surrounding the information provided by the Town Solicitor. Even construed in the plaintiffs favor, the allegations of the complaint fall well within the scope of the kind of reliance that the cases discussed above (all of which were decided on summary judgment) found was unreasonable as a matter of law. Ms. McIntyre knew after August 14, 2013 that a building permit had issued to JJM and Mento on August 13, 2013. It was Ms. McIntyres understanding that September 12, 2013 was the deadline for filing an appeal; she went to Town Hall that day with the intent of filing one. When she was told the later date by the Town Solicitor, Ms. McIntyre did not attempt to check that date with the clerks office at any time before September 27, 2013. Ms. McIntyre did not fulfill her duty to ascertain the correct date from the clerks office, and therefore her and the other plaintiffs reliance on the deadline provided by the Town Solicitor was unreasonable as a matter of law.
Since no claim of estoppel is available to the plaintiffs, the untimely filing of the § 15 appeal deprived the Board of jurisdiction to consider the appeal. As a result, the plaintiffs appeal cannot be constructively approved. Connors, 460 Mass. at 797; Halligan, 7 LCR at 379. The claims brought under (1) G. L. c. 40A, § 17, and (2) G. L. c. 231A must be dismissed.
III. Plaintiffs Cannot Bring a Mandamus Action
The remaining count in the plaintiffs complaint is a claim for mandamus under G. L.
c. 249, § 5. It is an elementary principle that mandamus will not lie where there is available another and effective remedy. Madden v. Secretary of the Commonwealth, 337 Mass. 758 , 761 (1958). The remedy for challenging a building permit is an appeal to the zoning board of appeals within 30 days of issuance. G.L. c. 40A, §§ 8, 15. A party with adequate notice of an order or decision that violates a zoning provision must appeal that order or decision to the appropriate permit granting authority within the thirty-day period allotted for such an appeal. Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 , 857 (2008). Where there is adequate notice of the issuance of a building permit, an aggrieved person may not bypass the available remedy and request enforcement action. Id. Since the plaintiffs failed to timely file an appeal under c. 40A, §§ 8 and 15, they cannot now request enforcement by mandamus. The plaintiffs claim under G. L. c. 249, § 5, must be dismissed.
Because the plaintiffs did not file their appeal with the ZBA within thirty days of the issuance of the building permit, the ZBA lacked subject matter jurisdiction to hear the appeal. This court, in turn, lacks subject matter jurisdiction to hear the plaintiffs appeal of the ZBAs denial. The plaintiffs complaint shall be dismissed without prejudice. See Abate v. Fremont Inv. & Loan, No. SJC-11638, slip op. at 27 (Mar. 9, 2015); Bevliacqua v. Rodriguez, 460 Mass. 762 , 780 (2011) (dismissals for lack of subject matter jurisdiction are ordinarily without prejudice).
For the reasons set forth above, the defendants Joint Motion to Dismiss is ALLOWED; the Plaintiffs Cross-Motion for Summary Judgment is DENIED. Judgment shall enter dismissing the plaintiffs complaint without prejudice.