The case requires determining whether an untimely appeal of an issuance of a building permit to the Braintree Zoning Board of Appeals (Board) deprives this court of subject matter jurisdiction or whether principles of estoppel provide this court with the requisite jurisdiction based on the plaintiffs' reasonable reliance on statements of the Town of Braintree (Town) Solicitor. Plaintiffs Matthew and Christine McIntyre, Joseph and Jane Murphy, and Martine Murphy, all residents of Braintree, appealed to the Board the issuance of a building permit to defendant Mento Enterprises, Inc. (Mento), subsequently conveyed to JJM Myrtle Street Corporation (JJM). The plaintiffs claim, among other things, that a variance for the subject property lapsed and that because the Board failed to timely consider their appeal of the building permit, their appeal was constructively approved by the Board. 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 Board and this court of subject matter jurisdiction to consider it. The plaintiffs claim that the Board is estopped from denying subject matter jurisdiction because they reasonably relied on alleged statements of the Town Solicitor and the Mayor that led them to believe they had additional time to file their appeal.
On remand from the Massachusetts Appeals Court, having previously allowed the defendants' motion to dismiss, this court considered further evidence on the plaintiffs' claim of reliance and estoppel. The parties have now filed cross-motions for summary judgment. Upon further consideration and examination of additional evidence, this court maintains that it lacks subject matter jurisdiction over this case and, thus, the defendants' motion for summary judgment is allowed. The complaint shall be dismissed.
Procedural History
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. On March 10, 2015, the court granted the defendants' motion to dismiss and denied the plaintiffs' cross motion for summary judgment. A judgment of dismissal was entered on that day. The defendants filed a notice of appeal on April 6, 2015. On March 3, 2016, the Massachusetts Appeals Court heard the case under docket number 2015-P-0716. On April 25, 2016, the Appeals Court issued a decision vacating the judgment of dismissal and remanding the case to the Land Court with instructions to allow discovery to proceed so that the parties could develop the record. On May 25, 2016, a Notice of Rescript from the Appeals Court re No. 2015-P-0716 was filed with the Land Court. Following the remand, the parties engaged in significant discovery that closed on September 16, 2016.
Municipal Defendants' Motion for Summary Judgment, Memorandum of Law in Support of Municipal Defendants' Motion for Summary Judgment, and Defendants' Statement of Undisputed Material Facts Pursuant to Mass. R. Civ. P. 56 and Rule of the Land Court (D-SOF) were filed on October 31, 2016. Plaintiffs' Second Motion for Summary Judgment, Statement of Material Facts in Support of Plaintiffs' Second Motion for Summary Judgment (P-SOF), and Memorandum in Support of Plaintiffs' Second Motion for Summary Judgment were also filed on October 31, 2016. Motion of the Defendants Metro and JJM for Summary Judgment Pursuant to Mass. R. Civ. P. 56, Memorandum in Support of Motion for Summary Judgment, and Defendants' Statement of Material Facts, with Partis' Joint Appendix in Support of Motions for Summary Judgment (App.) were filed on November 1, 2016. Memorandum of Law in Support of Municipal Defendants' Opposition to Plaintiffs' Second Motion for Summary Judgment and Municipal Defendants' Responses to Plaintiffs' Statement of Undisputed Material Facts were filed on December 1, 2016. Metro and JJM filed Defendants' Memorandum in Opposition to Plaintiffs' Motion for Summary Judgment and Defendants' Responses to Plaintiffs' Statement of Material Facts on December 2, 2016.
A hearing on the cross-motions for summary judgment was held on December 7, 2016, and the court took the motions under advisement. This Memorandum and Order follows.
Summary Judgment Standard
Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).
Undisputed Facts
The following facts are undisputed or deemed admitted for the purpose of summary judgment:
1. Plaintiffs Matthew and Christine McIntyre (McIntyres) are husband and wife and reside at 2 Spruce Street, Braintree, Massachusetts. P-SOF ¶ 1; D-SOF ¶ 1.
2. Plaintiffs Joseph and Jane Murphy (Murphys) are husband and wife and reside at 37 Myrtle Street, Braintree, Massachusetts. P-SOF ¶ 2; D-SOF ¶ 2.
3. Plaintiff Martine D. Murphy (Martine Murphy) resides at 420-44 Myrtle Street, Braintree, Massachusetts. P-SOF ¶ 3; D-SOF ¶ 3.
4. Defendant Town of Braintree (Town) is a Massachusetts municipal corporation situated in Norfolk County with its offices at 1 JFK Drive, Braintree, Massachusetts. P-SOF ¶ 4.
5. Defendant Russell Forsberg is the Building Inspector/Code Compliance Officer for the Town with his principle offices at 90 Pond Street, 2nd Floor, Braintree, Massachusetts. He is the zoning and enforcement officer for the Town pursuant to § 135-201 of the Town Zoning Bylaw (Bylaw). P-SOF ¶ 5; D-SOF ¶ 4.
6. Defendants Stephen Karll, Michael Calder, Michael Ford, and Richard McDonough are members of the Board. P-SOF ¶ 6; D-SOF ¶ 5.
7. Defendants Mento Enterprises, Inc. (Mento) and JJM Myrtle Street Corporation (JJM) are Massachusetts business corporations with principle offices at 1157 Washington Street, Braintree, Massachusetts. P-SOF ¶¶ 7-8; D-SOF ¶ 6.
8. The property at issue in this dispute is a parcel of land in Braintree comprising approximately 6,608 square feet, known and numbered as 38 Myrtle Street (Property). JJM is the present record owner of the Property. P-SOF ¶ 8; D-SOF ¶ 7; App. Exh. 13.
9. In 1986, the Property was part of a larger plot of land owned by Henry and Ellen Anderson (Original Parcel). P-SOF ¶ 9; D-SOF ¶ 7; App. Exh. 49.
10. The Andersons applied for a variance to allow them to divide the Original Parcel into two lots. Lot One would contain approximately 11,460-11,558 square feet and Lot Two, being the Property, would contain approximately 6,608-6,750 square feet. A variance was needed as the minimum lot size allowed by the Bylaw was 15,000 square feet. The Board granted the variance and it was filed with the Town clerk on May 20, 1986. P-SOF ¶¶ 9-10; D- SOF ¶ 7; App. Exhs. 13, 36, 49.
11. On September 23, 1986, the Town Planning Board endorsed the Anderson's "Approval Not Required" (ANR) plan showing the proposed division of the Original Parcel. P- SOF ¶ 11; D-SOF ¶ 8; App. Exhs. 13, 49.
12. The Andersons recorded the variance with the Norfolk Registry of Deeds (registry) on February 4, 1987, at Book 7435, Page 275 and the ANR plan as Plan No. 115 of 1987. P-SOF ¶ 12; D-SOF ¶ 7.
13. After the filing of the variance and ANR plan, the Property was not developed immediately. Construction on the Property did not begin until 2013. P-SOF ¶ 13.
14. On September 29, 1994, the Andersons conveyed the Property to their daughters, Joyce Anderson and Ellen Covell, by deed recorded with the registry at Book 10679, Page 218, and by a confirmatory deed dated August 3, 2009, recorded in the registry at Book 26951, Page 376. P-SOF ¶ 14; D-SOF ¶ 9.
15. On August 3, 2009, the Andersons conveyed Lot One of the Original Parcel to Christopher and Jane Barney (Barneys) by deed recorded with the registry at Book 26951, Page 377. P-SOF ¶ 15; D-SOF ¶ 10.
16. Joyce Anderson and Ellen Covell conveyed the Property to Mento in May of 2013, by deed recorded with the registry at Book 31337, Page 573. P-SOF ¶ 16; D-SOF ¶¶ 16, 20.
17. Mento applied for a building permit for the Property on May 13, 2013. D-SOF ¶ 20; App. Exh. 6(I).
18. After the Property was sold, a group of neighbors, including the Barneys and the McIntyres, met with the Mayor of Braintree, Joe C. Sullivan, to discuss the Property and the building permit application. Russell Forsberg, the Building Inspector for the Town, was at the meeting and told the neighbors that he did not see any reason why a building permit could not be issued. D-SOF ¶¶ 21-22; App. Exh. 1, pp. 7-8, 12, Exh. 3, pp. 118-119.
19. Prior to the issuance of the building permit, Mento had several meetings with neighbors regarding his proposed plans and development of the Property. D-SOF ¶¶ 28-29; App. Exh. 1, p. 9, Exh. 2, pp. 87-88, Exh. 7, pp. 302-303, Exhs. 19, 27.
20. Ms. McIntyre spoke with Melissa Santucci of the Town of Braintree Planning Department regarding the building permit and went to the registry to research the Property. D- SOF ¶ 32; App. Exh. 1, pp. 13-14.
21. A building permit was issued to Mento on August 13, 2013, that authorized the construction of a single family house on the Property. Construction activities pursuant to the permit commenced the next day, and continued thereafter. P-SOF ¶¶ 17-18, 22; D-SOF ¶ 33.
22. On or about August 14, 2013, the plaintiffs became aware that a building permit had issued for the Property when construction activity commenced. P-SOF ¶ 18; D-SOF ¶¶ 34- 36; App. Exh. 1, p. 14, Exh. 3, p. 121, Exh. 22.
23. Non-party neighbor, Jane Barney, consulted with an attorney about appealing the building permit issued for the Property. Ms. Barney's attorney informed her that she would have 30 days to file an appeal, making the deadline September 12, 2013. Ms. Barney provided Ms. Martine Murphy with the information regarding the appeal deadline that she received from her attorney by email dated September 3, 2013. At the latest, on September 11, 2013, Ms. Barney informed the McIntyres of the 30 day deadline of September 12, 2013 given to her by her attorney when she brought over documents necessary for filing the appeal to the McIntyres' residence. The Murphys relied on their neighbors' statements that the deadline for filing an appeal was September 12, 2013. D-SOF ¶¶ 37-45; App. Exh. 1, pp. 16-17, Exh. 2, pp. 83-84, Exh. 3, pp. 122-123, Exh. 4, pp. 158-159, 161, Exh. 7, p. 307, Exh. 28.
24. On September 12, 2013, plaintiff Christine McIntyre went to Town Hall to file an appeal of the issuance of the building permit, believing that it was due on that day. This appeal was going to be only on behalf of the McIntyres and did not include any of the other plaintiffs in this action. On the evening of September 11, 2013, the McIntyres did not have time to go ask other neighbors to join in the appeal. D-SOF ¶¶ 43, 47-48, 76-89; App. Exh. 1, pp. 88-90.
25. Martine Murphy had not seen any documents that were to be filed for the appeal and had not signed any documents to be a part of the September 12, 2013 appeal. D-SOF ¶¶ 49, 78.
26. Ms. McIntyre attempted to discuss the matter with the Mayor, but he was not available. Ms. McIntyre then asked to speak with the Town Solicitor Carolyn Murray despite not having an appointment and was admitted. D-SOF ¶¶ 50-51, 53.
27. Ms. McIntyre had a conversation with Town Solicitor Murray. The discussion focused predominantly on the merits of issuing the building permit for the Property and the implications of the Cornell v. Dracut decision. Ms. McIntyre did not present Ms. Murray with a copy of the building permit, nor did she inform Ms. Murray when the building permit had issued. Ms. Murray expressly informed Ms. McIntyre that her job was to defend the Town's position in the matter. Ms. Murray, after placing a telephone call to an unidentified individual in the building department, told Ms. McIntyre that she had 45 days to appeal the issuance of a building permit, giving her a filing a deadline of September 27, 2013. Ms. McIntyre did not inform Ms. Murray that this deadline was different from the deadline others had told her. D-SOF ¶¶ 54-58; App. Exh. 1, pp. 21-25, 27, Exh. 2, p. 90, Exh. 3, p. 125, Exh. 5, p. 183.
28. No evidence exists to establish that Ms. Murray intentionally mislead Ms. McIntyre or the other plaintiffs in providing the incorrect deadline date that the meeting. No evidence exists to establish that Ms. Murray has any interest in the Property. D-SOF ¶ 67.
29. Ms. McIntyre decided to rely on the advice given by Ms. Murray despite its contradictory nature and did not file the appeal that day in Town Hall. Ms. McIntyre did nothing to verify whether Ms. Murray was correct in the deadline date or whether Ms. Barney's attorney was correct. When she left Town Hall, Ms. McIntyre called her husband, an attorney, and informed him of the September 27, 2013 deadline to file their appeal. Mr. McIntyre did nothing to verify the date provided by Ms. Murray. Ms. McIntyre called Ms. Barney after she left Ms. Murray's office and told her of her conversation, but Ms. Barney did not follow up with her attorney about the deadline date. D-SOF ¶¶ 59-62, 68; App. Exh. 1, pp. 24-26, Exh. 2, p. 90-92, Exh. 3, pp. 124-125.
30. Mr. McIntyre wrote an email to the Mayor on September 12, 2013, following his wife's conversation with Ms. Murray. In his email, Mr. McIntyre recounts the conversation his wife had with Ms. Murray. He does not mention that Ms. Murray had told them they had 45 days to file the appeal, a deadline of September 27, 2013. Rather, Mr. McIntyre acknowledges that 30 days have passed from the issuance of the building permit. Specifically, Mr. McIntyre states "[a] building permit wasn't issued until 30 days ago today." D-SOF ¶ 69; App. Exh. 2(A)
31. None of the other plaintiffs did anything to attempt to resolve the conflict between the different deadlines to determine which applied. D-SOF ¶¶ 61-66.
32. Mr. Murphy did not learn about Ms. McIntyre's meeting with Ms. Murray and the fact that Ms. McIntyre did not file the Petition for Appeal on September 12, 2013, until he returned home from work later that evening. The Murphys did nothing to ascertain the correct deadline for filing and relied solely on information provided by other neighbors, specifically Ms. McIntyre. D-SOF ¶¶ 64-66, 70, 80; App. Exh. 4, pp. 158-162, Exh. 9, p. 348.
33. Martine Murphy, who had attended neighborhood meetings where the September 12, 2013 deadline was discussed, did nothing further to ascertain the correct deadline and relied solely on information provided by Ms. McIntyre. Martine decided not to join in the later filing of an appeal with the Board. D-SOF ¶ 66; App. Exh. 7, pp. 307-310, Exh. 10, p. 357.
34. The appeal was not filed by September 12, 2013, within 30 days of the issuance of the building permit. D-SOF ¶ 75.
35. There was significant e-mail communications among the parties that occurred after the September 12, 2013 appeal deadline had passed. D-SOF ¶¶ 71-74.
36. On September 17, 2013, Ms. Murray emailed Mr. Forsberg informing him that an abutter to the Property came to see her the previous week and was considering appealing the issuance of the building permit. Mr. Forsberg indicated that no appeal had been received yet and the deadline for appealing the building permit was September 27, 2013. D-SOF ¶ 71; App. Exh. 45.
37. Also on September 17, 2013, Ms. Barney wrote an email to the Mayor informing him that she consulted an attorney about the issuance of the building permit. She referred the Mayor to the Cornell v. Dracut case and gave her opinion as to why Mento should not have been given the building permit. Ms. Barney does not mention Ms. McIntyre's meeting with Ms. Murray, nor any statements regarding the deadline date. She did not indicate that neighbors intended to appeal the permit. D-SOF ¶ 72; App. Exh. 3(D).
38. The Mayor asked Ms. Murray to review Ms. Barney's September 17, 2013 email. On September 19, 2013, Ms. Murray sent an e-mail to the Mayor thoroughly reviewing the matter and stating that the deadline to appeal the issuance of the building permit was September 27, 2013. D-SOF ¶ 73; App. Exh. 32.
39. The Mayor forwarded Ms. Murray's email to Ms. Barney on September 22, 2013. On September 25, 2013, Ms. Barney responded by emailing the Mayor insisting that Ms. Murray's interpretation of the case law was incorrect. Ms. Barney copied several neighbors, including the McIntyres, onto the email. Ms. Barney did not inform the Mayor of the neighbors' intent to file an appeal of the issuance of the building permit. D-SOF ¶ 74; Exh. 3, pp.128-129, Exh. 3(C).
40. On September 27, 2013, the plaintiffs ultimately filed an appeal of the issuance of the building permit with the Board. The plaintiffs based this appeal on the McIntyres' understanding that the Property could not be developed without additional zoning relief. P-SOF ¶ 19; D-SOF ¶¶ 17-19, 21, 75.
41. Mento conveyed the Property to JJM by deed dated November 21, 2013, and recorded with the registry at Book 31912, Page 365. P-SOF ¶ 8.
42. The Board held a public hearing on the appeal on November 26, 2013. The Board heard evidence from the plaintiffs. After hearing the plaintiffs' testimony, the Board voted to either defer or continue the hearing to the Board's December 17, 2013 meeting. P-SOF ¶ 20; D- SOF ¶¶ 82-83.
43. The Board did not hold its meeting on December 17, 2013 because of snow. The matter was rescheduled for a meeting on January 8, 2014. The plaintiffs were notified of the rescheduling. P-SOF ¶ 20; D-SOF ¶¶ 84-85.
44. The Board heard additional evidence at its January 8, 2014 meeting and then closed the hearing. P-SOF ¶ 21.
45. The Board determined that the appeal should be denied as the plaintiffs had failed to file it within the 30 days allowed by statute. D-SOF ¶ 88; App., Exh. 42.
46. As of the morning of January 17, 2014, no decision of the Board upon the appeal had been filed with the town clerk. More than 100 days had elapsed since the plaintiffs filed their appeal on September 27, 2013. P-SOF ¶ 22.
47. On January 17, 2014, Ms. McIntyre filed a document with the Town Clerk entitled, "Constructive Approval of Appeal to Zoning Board of Appeals Dated September 26, 2013," that claimed the constructive approval of the appeal provided by G.L. c. 40A, § 15, as more than 100 days had passed since the appeal had been filed. P-SOF ¶ 22; D-SOF ¶ 89; App., Ex. 41.
48. On the same day Ms. McIntyre filed the document, the decision of the Board dismissing the appeal was filed. The Town Clerk's time stamp on Ms. McIntyre's document was 10:41 a.m., while the stamp on the Board's decision was 10:47 a.m. P-SOF ¶ 23; D-SOF ¶ 87; App., Exhs. 41-42.
49. The plaintiffs did not consent to any extension of time for the Board to render its decision. The plaintiffs did not object to any extension of time for the Board to render its decision, but they were not asked if they objected. P-SOF ¶ 24; D-SOF ¶ 86.
50. Defendants did not file an appeal of the constructive approval claim. P-SOF ¶¶ 25- 26.
Discussion
Plaintiffs appeal the Board's decision denying their appeal of the issuance of the building permit for the Property on the grounds that the appeal was jurisdictionally barred because the plaintiffs failed to file their appeal within 30 days of the issuance of the permit, as required by G.L. c. 40A, §§ 8, 15. It is undisputed that the plaintiffs' appeal was untimely. What it is at issue is whether the plaintiffs may avail themselves of the defense of estoppel, based on statements made by the Town Solicitor regarding the deadline date to file an appeal. The defendants argue that the plaintiffs are not entitled to estoppel because there is no evidence that the Town Solicitor intended to induce them to rely on her representation of the deadline, or that their reliance on the Town Solicitor's statements was reasonable.
I. Jurisdictional Defect
An appeal of a building permit must be filed with the board of appeals within 30 days of its issuance. G. L. c. 40A, § 15. The building permit in question was issued to Mento 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 permit's 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).
The plaintiffs had adequate notice of the issuance of the building permit. The plaintiffs were aware by August 14, 2013, after construction began on the Property that a building permit had been issued to Mento on August 13, 2013 by the office of the Building Inspector. The McIntyres were prepared to file an appeal on September 12, 2013, the final day of the appeal deadline. Failure to timely file an appeal to the Board 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 that there was constructive approval of the appeal after the Board did not file a decision on their appeal within 100 days. Id.; Halligan v. Brown, 7 LCR 377 , 379 (1999).
II. Estoppel
The plaintiffs argue that based on principles of estoppel, they are excused from filing the appeal of the building permit after the 30 day deadline and that the Board had jurisdiction to consider their appeal, which after 100 days of inaction became constructively approved. 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." O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555 , 558 (1986), quoting Boston & Albany R.R. v. Reardon, 226 Mass. 286 , 291 (1917); Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Court, 448 Mass. 15 , 27-28 (2006) ("Circumstances that may give rise to an estoppel are (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."), citing Bongaards v. Millen, 440 Mass. 10 , 15 (2003). "The reliance of the party seeking the benefit of estoppel must have been reasonable." O'Blenes, 397 Mass. at 558. "All of the elements of estoppel must be present and the party asserting the estoppel theory 'has a heavy burden to prove that all elements are present.'" Clickner v. Lowell, 422 Mass. 539 , 544 (1996), quoting Harrington v. Fall River Hous. Auth., 27 Mass. App. Ct. 301 , 309 (1989). "[T]he doctrine of estoppel is not applied except when to refuse it would be inequitable." Cleaveland v. Malden Sav. Bank, 291 Mass. 295 , 297 (1935), quoting Boston & Albany R.R., 226 Mass. at 291.
Massachusetts courts have consistently 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." O'Blenes, 397 Mass. at 558, 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 clerk's office has been excused by applying the principles of estoppel." Burke v. Planning Bd. of Leicester, No. 08-P-1052, 2009 WL 1310504, at *2 (Mass. App. Ct. May 13, 2009).
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. 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, the plaintiffs contend, estoppel should apply here.
The plaintiffs have failed to put forth any evidence to show that the Town Solicitor intentionally misrepresented the deadline date for filing an appeal in order to induce the plaintiffs' reliance on that statement. Town Solicitor Murray, without the benefit of having the building permit in front of her and without information regarding the date when the building permit was issued, told Ms. McIntyre that she had until September 27, 2013 to file an appeal. Ms. Murray made this comment after speaking with an unidentified individual in the Town building department who told her the incorrect appeal deadline. The plaintiffs acknowledge that they did not know whether Ms. Murray had knowledge that the building permit had issued for the Property when Ms. McIntyre went to speak with her. There is no evidence showing that Ms. Murray reasonably expected or intended that her statements would induce the plaintiffs to rely solely on them for the filing date, particularly in light of her other actions during the meeting evidencing that she was unfamiliar with the matter.
Aside from providing Ms. McIntyre with this misinformation when approached unsolicited by her on September 12, 2013, the plaintiffs do not assert that Ms. Murray did anything to actively dissuade them from filing their appeal by the correct deadline. Ms. Murray did not have any stake in whether the building permit was issued. In fact, she stated in her meeting with Ms. McIntyre that her job was to defend the Town, regardless of its position in a given matter. This is the very type of situation to which courts refuse to apply estoppel. See O'Blenes, 397 Mass. at 558 (clerk of the board of appeals did not intend to induce reliance by counsel as to appeal filing deadline date); Holahan, 394 Mass. at 191 (rejecting estoppel in part because plaintiff failed to show that assistant city solicitor intentionally misled plaintiff's counsel); Bongaards, 440 Mass. at 16 (nothing in evidence demonstrates that conduct was intended to induce reliance on representations); cf. One Ledgemont LLC v. Town of Lexington Zoning Bd. of Appeals, 23 LCR 451 , 458 (2015), aff'd One Ledgemont, LLC v. Zoning Bd. of Appeals of Lexington, 90 Mass. App. Ct. 1120 (2016) (finding representations of abutter in joint venture intended to induce reliance where the statements were part of overall terms conducive to the interests of all owners).
Moreover, the plaintiffs' reliance on the statements made by the Town Solicitor was not reasonable under the circumstances. On or about August 14, 2013, the plaintiffs became aware that a building permit had been issued to Mento for the Property on August 13, 2013. A neighbor, Jane Barney, consulted with an attorney about appealing the building permit issued for the Property. By September 11, 2013, at the latest, the McIntyres learned that Ms. Barney's attorney informed her that they had 30 days to file an appeal and the deadline for filing the appeal of the building permit was September 12, 2013. On the evening of September 11, 2013, Ms. Barney brought over documents necessary for filing the appeal to the McIntyres' residence and it was decided that Ms. McIntyre would file the appeal the following day only on behalf of the McIntyres. On September 12, 2013, Ms. McIntyre went to Town Hall, with the intent of filing an appeal. Ms. McIntyre did not have an appointment with the Town Solicitor, but showed up at her office when the Mayor was not available to meet.
When she was told the later date by Ms. Murray, Ms. McIntyre did not attempt to reconcile that deadline with the previous one provided, or attempt to ascertain the proper deadline. She did not call the building department, consult with Ms. Barney's attorney, conduct any legal research, or do any internet searches to determine the appeal deadline. Nor did Ms. McIntyre confirm that date with the clerk's office at any time before September 27, 2013. Mr. McIntyre did not undertake any action either, despite being an attorney himself and having previously done legal research to prepare a detailed legal analysis of the variance issue. The McIntyres undertook no action in the face of these conflicting deadlines, but simply relied on the later deadline provided by Town Solicitor. This reliance was unreasonable.
Considering she had alternative information about the deadline from other sources, and based on the circumstances of Ms. Murray providing the date, Ms. McIntyre had an obligation to ascertain the correct date. See O'Blenes, 397 Mass. at 558-559 ("Counsel had an obligation to determine the date on which the board's decision was filed, and he was bound to take notice of the statutory requirements."), citing Phipps Prods. Corp. v. Massachusetts Bay Transp. Auth., 387 Mass. 687 , 693 (1982); Burke, 2009 WL 1310504, at *2 (emphasizing that it is the duty of the plaintiffs to ascertain the deadline date from the clerk's office). The McIntyres failed to meet their duty to ascertain information regarding the actual deadline and, as such, they are not entitled to estoppel as a matter of law. The allegations of the complaint fall well within the scope of the kind of reliance that courts have found to be unreasonable as a matter of law. See O'Blenes, 397 Mass. at 558 ("[I]t was not reasonable for counsel to rely on the statement of a clerk of the board for a determination of the last day for completing the procedural requirements for initiating an appeal from the board's decision."); Burke, 2009 WL 1310504, at *2 (reliance on facsimile with incorrect date was unreasonable as a matter of law where plaintiffs had a duty to ascertain the actual date); Calnan v. Planning Bd. of Lynn, 63 Mass. App. Ct. 384 , 387-388 (2005) (given what the plaintiffs knew about when subdivision plan was approved and documents on file commencing appeal period, reliance on statement in failing to timely appeal was unreasonable).
As to the remaining plaintiffs, they cannot assert a claim of estoppel because they did not rely on the Town Solicitor's representation of the deadline date when they did not decide to appeal the issuance of the building permit on September 12, 2013. The Murphys, while parties to the appeal filed September 27, 2013, had not signed any form to appeal the decision of the issuance of the building permit prior to or on September 12, 2013. They did not learn of the September 12, 2013 meeting, the Town Solicitor's remarks and that Ms. McIntyre did not file the appeal, until later in the evening on September 12, 2013, after Town Hall was closed and it was too late to file an appeal that day. Likewise, Martine Murphy cannot advance an estoppel claim. Martine Murphy was not even a party to the appeal filed September 27, 2013. Thus, she could not have relied on the Town Solicitor's statements in deciding not to file an appeal on September 12, 2013.
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 could not have been constructively approved by the Board. Connors, 460 Mass. at 797; Halligan, 7 LCR at 379.
Conclusion
For the reasons set forth above, the defendants' Motion for Summary Judgment is ALLOWED and the plaintiffs' Cross-Motion for Summary Judgment is DENIED. Judgment shall enter dismissing the plaintiffs' complaint without prejudice.
SO ORDERED
MATTHEW MCINTYRE, CHRISTINE MCINTYRE, JOSEPH MURPHY, JANE MURPHY, and MARTINE D. MURPHY v. STEPHEN KARLL, MICHAEL CALDER, MICHAEL FORD, RICHARD MCDONOUGH, as they are members of the Zoning Board of Appeals of the Town of Braintree, MENTO ENTERPRISES, INC., JJM MYRTLE STREET CORPORATION, RUSSEL FORSBERG, as he is the Building Inspector/Code Compliance Officer for the Town of Braintree, and the TOWN OF BRAINTREE.