MISC 18-000284

January 10, 2020

Middlesex, ss.



In 2017, a developer applied to build an "ancillary residential community" (ancillary to an existing retirement community) under the authority of a special permit provision of the Marlborough Zoning Ordinance that had been repealed in 2011. Unfortunately, the repeal of the special permit provision had not been adequately reflected in either the printed or online versions of the Ordinance, and the developer - and even city officials - mistakenly proceeded with the application process to the point of opening and closing a public hearing on the special permit application. By the end of the hearing process, city officials discovered the error, and the special permit granting authority denied the application on the grounds that it had no jurisdiction to grant the requested relief. The developer filed this action appealing the denial of its permit, seeking to annul the denial on equitable estoppel grounds. For the reasons stated below, the developer is not entitled to the relief sought, and summary judgment will be allowed in favor of the municipal defendants.


Plaintiff Williams Street Holdings, LLC ("WSH") filed this appeal on June 4, 2018 pursuant to G. L. c. 40A, §17 and G. L. c. 231A, §1. WSH appeals a decision of the defendant Marlborough City Council ("City Council") denying WSH's application for a special permit to construct a 28-unit "Ancillary Residential Community" at 615 Williams Street in Marlborough. In its complaint, WSH seeks a judgment reversing and vacating the decision of the City Council, declaring that Marlborough City Code's Zoning Ordinance Section 650-22(C)(14) ("§650- 22(C)(14)") is available and enforceable as to WSH, and remanding WSH's Application for Special Permit to the City Council for a determination on the merits pursuant to §650-22(C)(14).

The present motions are before the court following an extended stay during which the parties attempted to resolve their differences by passage of a curative amendment to the Ordinance that would allow WSH's application to be considered on the merits. The proposed amendment failed to pass by a two-thirds majority as required under G. L. c. 40A, §5. On May 8, 2019, the City Council moved for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c) and Land Court Rule 4, asserting that at the time the permit application was submitted and voted upon, WSH was a dissolved corporate entity without standing to pursue the application.

On June 5, 2019, WSH filed an opposition to the City Council's motion for judgment on the pleadings, and filed a motion for summary judgment pursuant to Mass. R. Civ. P. 56, seeking a determination as a matter of law that it was entitled to relief on a theory of equitable estoppel.

A hearing on the City Council's motion for judgment on the pleadings and WSH's motion for summary judgment was held before me on July 25, 2019, after which I took the matter under advisement.


The undisputed facts established in the record and pertinent to the motion for summary judgment, with all reasonable inferences drawn in the light most favorable to the non-moving party, the City Council, are as follows:

1. The city of Marlborough maintains a website which includes the Marlborough City Code (including its Zoning Ordinance) ("Ordinance"), which is published and maintained by General Code, LLC. [Note 1] The city's website includes a link to General Code's own website. General Code also publishes and maintains the print version of the Ordinance. [Note 2]

2. Prior to 2011, the Ordinance included §650-22(C)(14), concerning retirement community overlay districts. [Note 3] Subsection (14) allowed the City Council to approve, subject to certain dimensional limitations, an "ancillary residential community" in conjunction with the grant of a special permit for construction of a retirement community. [Note 4]

3. On April 25, 2011, the City Council voted to amend §650-22 of the Ordinance. [Note 5] The amendment approved by the vote was contained in City Council Order No. 11-1002806-1A. [Note 6] The amendment provided that §650-22(C) was amended, in relevant part, "by amending subsection (14) thereof, by striking out said subsection in its entirety, including sub-subsections (a) through (f)[.]" [Note 7] The vote effectively repealed §650-22(C)(14). [Note 8] This eliminated the provision in the Ordinance allowing a special permit to be granted for an ancillary residential community in conjunction with a retirement community.

4. After the vote to amend §650-22(C), the city clerk provided General Code with Order No. 11-1002806-1A, and asked that General Code use it to update Marlborough's "code page." [Note 9]

5. Plaintiff Williams Street Holdings, LLC was a duly organized limited liability company prior to 2013. On June 30, 2013, WSH was administratively dissolved. [Note 10]

6. On October 12, 2017, WSH filed a special permit application for approval of an ancillary residential community with the city clerk's office, purportedly pursuant to the site development provisions provided in § 650-22(C)(14) of the Ordinance. [Note 11]

7. At the time WSH filed its permit, the online version of the Ordinance still included §650-22(C)(14), under which WSH purported to apply for its permit - rather than the up-to-date amendment of that section, which repealed subsection (14) in its entirety. [Note 12] The version of §650-22(C) that was posted on the city's website also noted "Amended 3-10-2003 by Ord. No. 03-994B; 4-25-2011 by Ord. No. 11-1002806-1A." [Note 13] In other words, the order that had repealed subsection (14) was noted in the section, but the text of the section had not been updated to delete the language that had been repealed by the amendment. The same was true of the printed version of the section. [Note 14]

8. In connection with its special permit application, WSH submitted a certified list of abutters, filing fees, and a site plan entitled "The Residences at Williams Street Crossing, Marlborough, MA, Preliminary Site Plan" prepared by Bruce Saluk and Assoc., Inc., and dated October 5, 2017 (the "Plans"). [Note 15]

9. On October 11, 2017, the Plans were certified by the interim building commissioner ("building commissioner"), acting on behalf of the city planner, as having complied with the rules and regulations promulgated by the City Council for the issuance of a special permit. [Note 16]

10. On December 4, 2017, the City Council accepted WSH's Application for Special Permit and duly noticed and commenced a public hearing. [Note 17] The City Council received no testimony on that date, and continued the hearing to January 8, 2018. [Note 18] The City Council closed the public hearing on January 8, 2018. [Note 19]

11. As late as March 1, 2018, the Marlborough building commissioner and WSH's permitting counsel were communicating via e-mail concerning the dimensional restrictions applicable to an ancillary residential community, indicating that they both were apparently operating under the mistaken assumption that §650-22(C)(14) was still in effect. [Note 20]

12. In March 2018, the new building commissioner, who had commenced his employment with the city in December, 2017, learned that §650-22(C)(14) - which by its terms allowed for an ancillary retirement community by special permit - had been repealed in 2011. [Note 21]

13. On March 5, 2018, General Code informed the city that it had erroneously failed to update the Marlborough code site to remove §650-22(C)(14), in accordance with the City Council vote in April 2011. [Note 22]

14. On March 6, 2018, WSH obtained a certified copy of the relevant portion of the Ordinance, which included the 2011 Amendment repealing § 650-22(C)(14). [Note 23]

15. On May 7, 2018, the City Council voted to deny WSH's application for special permit on the ground that the "Special Permit Application had been based on Section 650- 22(C)(14) that had been duly deleted[.]" [Note 24]

16. While WSH had been administratively dissolved on June 30, 2013, it was reinstated on January 12, 2018. [Note 25]


"Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-644; Mass. P. Civ. P. 56(c). "The party moving for summary judgment assumes the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue, even if he would have no burden on an issue if the case were to go to trial." Pederson v. Time, Inc., 404 Mass. 14 , 17 (1989). In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and "an adverse party may not manufacture disputes by conclusory factual assertions." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., supra, 436 Mass. at 648. When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).

WSH claims that the City Council is estopped from asserting that the section of the Ordinance upon which WSH sought the special permit was inoperative and unavailable to WSH as having been previously deleted by the City Council from the Ordinance.

The City Council contends that its denial of WSH's special permit application was in accordance with law because §650-22 (C)(14) had been repealed in 2011 and the City Council had no authority to grant a special permit under a provision that had been repealed. The Council argues that an equitable estoppel theory - such as WSH is arguing - is inapplicable to municipalities, and, in any event, that WSH cannot establish the elements of equitable estoppel against the City Council. The City Council further defends that WSH cannot obtain relief from the City Council because the city website containing the erroneous ordinance contains terms and conditions disclaiming the "accuracy, completeness, adequacy or currency" of the site's contents.

The City Council also argues, in its motion for judgment on the pleadings, that WSH could not validly seek a special permit in 2018 because it had been administratively dissolved by that time. WSH rebuts that it was never formally dissolved as an LLC, as it did not receive notice of its dissolution from the Secretary of the Commonwealth, as required by G. L. c. 156C, §70 (and therefore, that it had standing to seek a special permit from the city). WSH further contends that its actions in seeking a special permit were ratified by its later reinstatement as an LLC.

To the extent it is necessary, I conclude that WSH's application for a special permit was made validly, by virtue of the relation back of its post-application reinstatement as a valid limited liability company. However, a determination in the alternative would not affect the outcome of this case, which is made based on the merits of WSH's equitable estoppel claim.


"Generally, the doctrine of estoppel is not applied 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). In the zoning context specifically, Massachusetts courts have "frequent[ly] and consistent[ly] [held] that a municipality cannot ordinarily be estopped by the acts of its officers from enforcing its zoning by-law or ordinance." Bldg. Inspector of Lancaster v. Sanderson, 372 Mass. 157 , 162 (1977). See Cullen v. Bldg. Inspector of N. Attleborough, 353 Mass. 671 , 675 (1968) ("The right of the public to have the zoning by-law properly enforced cannot be forfeited by the action of its officers."). "[T]he doctrine of estoppel cannot stay the hand of a municipality in enforcing its zoning laws." Ferrante v. Bd. of Appeals of Northampton, 345 Mass. 158 , 162 (1962) (issuance of building permit and erection of building not authorized by zoning ordinance did not entitle plaintiffs to variance by reason of estoppel). The reluctance to permit the use of estoppel theories against the government derives from concern over public interests and public welfare. See Bldg. Comm'r of Medford v. C. & H. Co., 319 Mass. 273 , 283 (1946) (bill is brought to enforce zoning ordinance for public welfare, and neither building inspector who is charged with enforcement of this ordinance nor city itself is estopped by alleged action of city or its officials). Reluctance to utilize the doctrine of estoppel with respect to the actions of governmental officials in the exercise of their official duties extends beyond enforcement of zoning laws. Phipps Products Corp. v. Mass. Bay Transp. Auth., 387 Mass. 687 , 693–694 (1982) (estoppel not available with respect to MBTA's violation of bidding laws).

The facts alleged by WSH are nowhere close to the egregious facts that would be necessary to consider application of the doctrine of estoppel to require the enforced availability of a repealed ordinance to allow a development that is prohibited by the current zoning ordinance. WSH alleges no more than a mistake by the recently hired building commissioner in believing, as WSH and its counsel apparently did as well, that the ancillary residential community provision of the ordinance was still in effect. This belief on the part of WSH can be attributed not just to the error of General Code in failing to delete the repealed language from the published versions of the Ordinance, but to WSH's failure of due diligence. The versions of the Ordinance published both online and in print contained explicit references to the 2011 amendment to the Ordinance that effected the repeal of the ancillary residential community provisions. Due diligence on the part of permitting counsel and any counsel providing a required zoning opinion for a lender would have mandated checking the actual amendment; apparently no one saw fit to do so until March, 2018, well after WSH had applied for the special permit.

Certainly where no corrupt or intentional purpose of the city or its officials to deceive is alleged or proven, and where discovery of the mutual mistake was within the reasonable reach of the applicant, there is no occasion for even considering the extraordinary application of the doctrine of estoppel in a zoning context. Furthermore, the harm to WSH from its, and the defendants' mistake in proceeding as far as they did before the mistake was caught was, fortunately, relatively minimal. WSH alleges that it unnecessarily incurred the cost of preparing plans and its application, and the costs of participating in the approval process, including public hearings and informal meetings, until the mistake was caught in March, 2018. While this is unfortunate, it is a relatively minor expense; WSH never put a shovel in the ground or incurred any actual construction costs, nor was it left with a completed building it cannot occupy. Much greater detriment in reliance on municipal actions has been determined to be insufficient to justify application of the doctrine of estoppel. Compare Building Comm'r of Lancaster v. Sanderson, supra, where the landowner purchased land for an additional runway at an airfield in reliance on written expressions of support from the board of selectmen, but that was insufficient to justify application of the doctrine of estoppel against enforcement of the town's zoning bylaw, which prohibited the runway. Even where a building permit was erroneously granted, and a house was constructed in reliance on the erroneously granted building permit, the doctrine of estoppel did not require the town's zoning board of appeals to grant a variance to allow the illegal structure to remain. Delprete v. Zoning Bd. Of Appeals of Rockland, 87 Mass. 1104 , 1104 (2015) (Rule 1:28 Unpublished Decision).

Even if the general reluctance to apply the doctrine of estoppel to the enforcement of zoning laws did not apply, the equitable estoppel claim asserted by WSH would fail on the merits. To succeed on an equitable estoppel claim, WSH must prove "[a] representation or conduct amounting to a representation intended to induce a course of conduct" by WSH; "[a]n act or omission" by WHS "resulting from the representation"; and detrimental reliance by WHS as a consequence of that act or omission. Renovator's Supply, Inc. v. Sovereign Bank, 72 Mass. App. Ct. 419 , 426–427 (2008) (emphasis omitted). WSH maintains that the text on the city website, detailing §650-22(C)(14), was a representation "that the zoning ordinance remained enforceable at all relevant times." It is difficult to characterize the text on the website as representing that §650-22(C)(14) is enforceable, because the text expressly notes that §650-22(C)(14) has been amended. Consulting the amendment would have revealed that the City Council, in fact, meant to convey that §650-22(C)(14) was not enforceable.

Neither was the mistaken inclusion of the deleted text of §650-22(C)(14) on the website intended to induce WSH to act in reliance on it. The website included text of the Code "for informational purposes only." The disclaimer language included on the website makes clear that the website is provided for convenience and informational purposes but is not intended to be relied upon without further due diligence. It states, in relevant part, that "E-Codes should not be relied upon as the definitive authority for local legislation . . . The Content may contain typographical errors or other errors or inaccuracies and may not be complete . . . The accuracy, completeness, adequacy or currency of the Content is not warranted or guaranteed." Because the City Council did not make a representation intended to induce WSH's reliance on it, WSH cannot succeed on its equitable estoppel claim.

WSH's claim fails as a matter of law. There is no legal authority to support an estoppel claim against the City Council in these circumstances. Even if there was, the estoppel claim, on the undisputed facts before the court, fails on the merits.


For the reasons stated above, the defendants' motion for judgment on the pleadings is DENIED. Plaintiff's motion for summary judgment is DENIED as to the plaintiff. However, on the plaintiff's motion for summary judgment, the motion is ALLOWED in favor of the defendants. Accordingly, judgment will enter for the defendants.


[Note 1] Joint Appendix Exh. 3.

[Note 2] Plaintiff's Statement of Material Facts ¶ 4; Defendant's Response to Plaintiff's Statement of Material Facts ¶ 4.

[Note 3] Plaintiff's Verified Complaint ("Compl.") ¶ 14; Defendants' Answer ("Answer") 14; Joint Appendix Exh. 3.

[Note 4] Joint Appendix Exh. 7.

[Note 5] Joint Appendix Exh. 8.

[Note 6] Id.

[Note 7] Id.

[Note 8] Id.

[Note 9] Joint Appendix Exh. 5.

[Note 10] Joint Appendix Exh. 2.

[Note 11] Compl. ¶ 14; Answer ¶ 14.

[Note 12] Joint Appendix Exh.3.

[Note 13] Joint Appendix Exh. 7.

[Note 14] WSH alleges in its complaint that it and its permitting counsel relied on the incorrect online version of the Code; the parties agreed at the hearing on these motions that the print version bore the same inaccuracies.

[Note 15] Compl. ¶ 20, Exh. 4; Answer ¶ 20.

[Note 16] Compl. ¶ 21, Exh. 5; Answer, ¶ 21.

[Note 17] Joint Appendix Exh. 3.

[Note 18] Compl. ¶¶ 23, 25; Answer ¶¶ 23, 25.

[Note 19] Compl. ¶ 25; Answer ¶ 25.

[Note 20] Joint Appendix Exh. 6.

[Note 21] Compl. ¶ 29; Answer ¶ 29; Joint Appendix Exh. 5.

[Note 22] Joint Appendix Exh. 5, p. GC000152.

[Note 23] Compl. ¶ 33; Answer ¶ 33.

[Note 24] Compl. ¶ 35, Exh. 1; Answer ¶ 35. It appears from the record that the public hearing was opened on December 4, 2017 and closed on January 8, 2018, and that the City Council's decision was issued on May 7, 2018. Unless there was an agreed-upon extension for the time in which the Council could act, which is not apparent on the record before the court, this failure to act within ninety days of the hearing could have resulted in the application being deemed approved pursuant to G. L. c. 40A, §9, 13th par. However, WSH's failure to give proper notice of a constructive approval nullified any such approval. See Uglietta v. City Clerk of Somerville, 32 Mass. App. Ct. 732 (1992) (failure of applicant to file notice of constructive approval with city clerk within fourteen days after expiration of ninety day period for special permit granting authority to act nullified constructive approval).

[Note 25] Joint Appendix Exhs. 9, 10.