These plaintiffs are residents of Arlington, living near Massachusetts Avenue. They object to a development proposed by defendant James F. Doherty, Trustee of the 1211 Mass. Ave. Trust (Trust), for a mixed-use project on Massachusetts Avenue. The plaintiffs originally appealed a special permit issued to the Trust by the Arlington Redevelopment Board (Board) pursuant to G.L. c. 40A, § 17. They amended their complaint to add two more counts, one for equitable estoppel and the other for zoning enforcement under G.L. c. 40A, § 7. The Board and the Trust have both moved to dismiss the amended complaint. As set forth below, because each of the claims is either filed too late or does not state a claim on which relief can be granted, the motions to dismiss are allowed, and this action will be dismissed in its entirety.
Procedural History
The Complaint was filed on September 15, 2020, containing a single count under G.L. c. 40A, § 17. The Amended Complaint (Am. Compl.) was filed on September 23, 2020. The Amended Complaint has three counts: Count I under G.L. c. 40A, § 17, Count II for Equitable Estoppel, and Count III under G.L. c. 40A, § 7, and G.L. c. 231A, § 1. The plaintiffs filed their Affidavit of Notice on October 6, 2020.
The Motion of the Defendant, James F. Doherty, to Dismiss Action Pursuant to Mass. R. Civ. P. 12(b)(1) (Doherty Motion to Dismiss), the Memorandum of the Defendant, James F. Doherty, in Support of his Motion to Dismiss Pursuant to Mass. R. Civ. P. 12(b)(1), the Statement of Material Facts Pursuant to Land Court Rule 4 of the Defendant, James F. Doherty, the Appendix of the Defendant, James F. Doherty (Trust App.), and the Affidavit of Juliana H. Brazile (Brazile Aff.) were filed on October 20, 2020. The Motion of the Defendants Arlington Redevelopment Board, Benson, Lau, Zsembery, Watson, and Arlington Inspectional Services Department to Dismiss Pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6) (Town Motion to Dismiss), the Defendants Arlington Redevelopment Board, Benson, Lau, Zsembery, Watson, and Arlington Inspectional Services Department's Memorandum in Support of their Motion to Dismiss Pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6), the Planning Defendants' Statement of Material Facts Pursuant to Land Court Rule 4, and the Appendix of the Planning Defendants (Town App.) was filed on October 21, 2020. The Plaintiffs' Memorandum in Opposition to Defendants' Motions to Dismiss Pursuant to M.R.C.P. 12(b)(1) and 12(b)(6), the Plaintiffs' Response to Statement of Material Facts Pursuant to Land Court Rule 4 of the Defendant, James F. Doherty, and the Plaintiffs' Response to Planning Defendants' Statement of Material Facts Pursuant to Land Court Rule 4 were filed on November 10, 2020.
The court heard the Doherty Motion to Dismiss and the Town Motion to Dismiss on November 12, 2020. At the hearing, the court dismissed Count I of the Amended Complaint without prejudice, as it was undisputed that the town clerk of Arlington did not receive notice of the complaint within the twenty-day period as required by G.L. c. 40A, § 17, dismissed Count II of the Amended Complaint, and took the motions to dismiss Count III under advisement. This Memorandum and Order follows.
Standard on Motion to Dismiss
The Motions to Dismiss are brought pursuant to Mass. R. Civ. P. 12(b)(1), for lack of subject matter jurisdiction, and 12(b)(6), for failure to state a claim upon which relief can be granted. 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) (Misc. Case No. 355798) (Long, J.).
A motion to dismiss for lack of subject matter jurisdiction unsupported by affidavit "presents a 'facial attack' based solely on the allegations of the complaint, which are taken as true for purposes of resolving the complaint." Hiles v. Episcopal Diocese of Massachusetts, 437 Mass. 505 , 516 n.13 (2002). The court may, however, consider affidavits and other materials outside the pleadings when ruling on a motion to dismiss for lack of subject matter jurisdiction, at which point the burden falls to the plaintiff to prove the jurisdictional facts. Id. at 515-16. If a party presents material outside the pleadings, the court may treat a motion to dismiss for lack of subject matter jurisdiction as a motion for summary judgment, shifting the burden to the defendant to show that there is no genuine issue of material fact. Williams v. Episcopal Diocese of Massachusetts, 436 Mass. 574 , 577 n.2 (2002).
Discussion
The court will address each count of the Amended Complaint in order, discussing the undisputed facts or alleged facts accepted as true for the purposes of the Motions for Dismiss as relevant. For Counts I and II, which the court has dismissed, this Memorandum and Order serves as additional discussion of the reasons for dismissal.
Count I
Count I is an appeal under G.L. c. 40A, § 17, of the decision for a Special Permit under Environmental Design Review (decision) issued by the Board on August 17, 2020. Section 17 requires that any appeal of a zoning decision be filed with the court and filed with the town clerk within twenty days of the decision's original filing with the town clerk after its issuance. It is undisputed that the decision was filed with the town clerk on August 26, 2020. Am. Compl. Exh. A; Brazile Aff. ¶ 2. Thus, the twenty-day deadline for filing the complaint and giving notice to the town clerk was September 15, 2020. Brazile Aff. ¶ 3.
The Complaint was timely filed on September 15, 2020. However, the town clerk received no notice of the filing of the complaint on or before September 15, 2020. Brazile Aff. ¶¶ 4, 8. The Complaint itself was not mailed to the town clerk until September 25, 2020, and the town clerk received it on September 30, 2020. Affidavit of Notice; Brazile Aff. ¶ 7; Town App. Exh. 3. The only notice the town clerk had of the filing of the complaint before then was a communication from the Arlington Department of Planning and Community Development that a complaint had been filed. That communication was made on September 16, 2020, one day after the twenty-day deadline. Brazile Aff. ¶¶ 5-6.
Receipt of notice by the town clerk is a jurisdictional prerequisite for appeals under § 17, and the twenty-day deadline for receipt of such notice is policed in the strongest way and given strict enforcement. O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555 , 557-558 (1986); Pierce v. Board of Appeals of Carver, 369 Mass. 804 , 808 (1976); Hickey v. Zoning Bd. of Appeals of Dennis, 93 Mass. App. Ct. 390 , 392 (2018); Konover Mgt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319 , 322-323 (1992). The notice must be adequate, and if a town clerk has knowledge within the twenty-day period that a complaint has been filed, the twenty day requirement may be satisfied. Hickey, 93 Mass. App. Ct. at 394. Here, the town clerk had no notice whatsoever that a complaint had been filed until September 16, 2020, the twenty-first day after the filing of the decision with the town clerk. [Note 1] The plaintiffs failed to meet the jurisdictional requirement of filing their complaint with the town clerk within twenty days.
Count I of the Amended Complaint was therefore dismissed without prejudice at the hearing. This was because, generally, dismissals for lack of subject matter jurisdiction are without prejudice. "Dismissals for lack of subject matter jurisdiction are ordinarily without prejudice because dismissal for lack of jurisdiction is typically not an adjudication on the merits." Abate v. Fremont Inv. & Loan, 470 Mass. 821 , 836 (2015), citing Bevilacqua v. Rodriguez, 460 Mass. 762 , 780 (2011). In this case, however, there is no opportunity for the plaintiffs to bring their § 17 claim elsewherethe twenty-day limit for challenging the decision has passed. Count I will therefore be dismissed with prejudice.
Count II
Count II is a claim for equitable estoppel. The elements 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." Sullivan v. Chief Justice for Admin. & Mgt. of the Trial Court, 448 Mass. 15 , 27-28 (2006), quoting Bongaards v. Millen, 440 Mass. 10 , 15 (2003). In other words, 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, 397 Mass. at 558, quoting Boston & Albany R.R. v. Reardon, 226 Mass. 286 , 291 (1917). "The reliance of the party seeking the benefit of estoppel must have been reasonable." Id. "All of the elements of estoppel must be present and the party asserting the estoppel theory 'has a heavy burden to prove that all three elements are present.'" Clickner v. City of 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.
In Count II, the plaintiffs allege, and the court accepts as true for the purposes of the Motions to Dismiss, that at the 2016 Arlington Annual Town Meeting, the town was considering amendments to the Arlington zoning bylaw that would allow for mixed-use developments. Am. Compl. ¶ 48. As part of the debate, Andrew Bunnell, then the chair of the Board, described the B-2 business district as "traditionally small businesses, districts with small businesses" that are "interspersed throughout town." Id. at ¶ 49. In support of the amendment, he stated, "You won't see major developments going in this kind of a district. It usually comes into a neighborhoodit has to comply with what's already permitted in that district." Id. at ¶ 50. He further stated that any proposed project
has to be within the character of the neighborhood. And part of the reason that [the Board] has decided to keep special permit review of this is so that we can be assured that we're protecting neighborhoods from being overrun. . . . It is important to us that there is some review over these projects from the beginning, so that we're not seeing monstrosities coming to town, and seeing the kinds of things that people don't want.
Id. at ¶ 51. Another member of the Board at that time, Michael Cayer, stated in support of the amendment:
There was a statement made that said that any commercial use can be snuck in to the mixthe definition that been put forth before you, in a mixed use development. . . . That's not correct. We've worked with both the Inspectional Services, the head of Inspectional Services, as well as the Town Counsel on the wording that's before you. And only the uses that are permitted in a particular district are the ones that can happen in a mixed use in that district.
Id. at ¶ 52.
In the wake of these and other representations, the bylaw amendment passed to allow mixed use projects in Arlington, under the special permit regime that was issued in the decision. Plaintiffs allege that it was reasonable for members of the public, including the plaintiffs, to rely upon the representations of the members of the Board in 2016 as to how amendments to the zoning by-law, and the mixed-use amendment in particular, would be interpreted in the future. Id. at ¶¶ 53-54. Notwithstanding these assurances, the Board issued the decision that approves a hotel to be constructed on a parcel that is partially within the B2 zoning district, even though hotels are not allowed in that district.
There is a significant question whether statements made by town officials on the floor of Town Meeting can form the basis for equitable estoppel against a municipality. These are statements made before a legislative body in debate; it is questionable whether it is reasonable to rely on such statements. Moreover, 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); Calnan v. Planning Bd. of Lynn, 63 Mass. App. Ct. 384 , 390-391 (2005). 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, 74 Mass. App. Ct. 1110 , 2009 WL 1310504, at *2 (May 13, 2009) (Rule 1:28 Unpublished Decision). That said, no court has ever stated that there are no circumstances whatsoever under which a municipality could be estopped. If that were the only question, the claim for equitable estoppel might go forward.
There is, however, another reason that the plaintiffs have not stated a claim for equitable estoppel. They have not pled any facts that could be construed to show an act or omission by any of the plaintiffs in reasonable reliance on the statements at Town Meeting nor have they pled the element of detriment as a consequence of the act or omission. Sullivan, 448 Mass. at 27-28. Accepting the alleged facts as true, it seems Arlington Town Meeting, standing as the town, accepted these statements and relied on them in voting for the zoning amendment. Town Meeting, however, is not any of the individual plaintiffs; it is the town as a whole. See G.L. c. 39, § 9 (referring to town meeting as "the annual meeting of each town"). Thus, it would seem that the plaintiffs are alleging that the town is both the entity making the statements and the entity that relied on the statements. None of the plaintiffs has alleged that he or she took any action, or failed to take any action, to their detriment in reliance on the statements at Town Meeting. When asked at the hearing, counsel for the plaintiffs could not identify any such action. Failure to allege such acts or omissions is fatal to the plaintiffs' claim for equitable estoppel. As stated at the hearing, Count II is dismissed with prejudice.
Count III
Count III is brought under G.L. c. 40A, § 7, and as a declaratory judgment claim under G.L. c. 231A, § 1, et seq. Count III alleges that any building permit for the construction of a hotel on a parcel in the B2 zoning district will result in a direct violation of the zoning by-law, which does not permit hotels in the B2 district, even by special permit. A building permit has not issued, and it is alleged that any building permit issued in conformance with the decision will result in the above-described zoning violation. Am. Compl. ¶¶ 60-62.
It is a longstanding principle that a plaintiff cannot bring a declaratory judgment claim in order to avoid the time limitations of an appeal under G.L. c. 40A, § 17. Iodice v. City of Newton, 397 Mass. 329 , 333 (1986); see Colangelo v. Board of Appeals of Lexington, 407 Mass. 242 (1990). As the Iodice court explained, G.L. c. 40A, § 17, "does not specify the form of the action required to appeal from a special permit granting authority's decision. The present action is no less an appeal under c. 40A, § 17, because it takes the form of a G.L. c. 231A, declaratory judgment action." Iodice, 397 Mass. at 333. While there is no case law precisely on point, the court finds that, similarly, a plaintiff cannot avoid § 17's time limits by styling their claim as a zoning enforcement action under G.L. c. 40A, § 7. Plaintiffs cannot avoid the thirty-day time limit in G.L. c. 40A, § 15, for appealing a building permit of which they have knowledge by bringing a zoning enforcement action under § 7. Connors v. Annino, 460 Mass. 790 , 795-96 (2011); Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 , 857 (2008). Applying the same reasoning, a plaintiff cannot avoid the twenty-day time limit of § 17 by bringing a § 7 enforcement action concerning the same proposal that is the subject of the § 17 appeal.
Count III of the complaint concerns the same proposed project for which the Trust obtained a special permit in the decision. A building permit for that hotel project would be issued pursuant to the decision. The Board issued the decision under the provisions of the zoning by law that the plaintiffs raise in Count III. Count III's claim that no building permit can issue because hotels are not a permitted use in the B2 district is one of the claims explicitly raised in Count I as grounds for annulling the decision. Compare Am. Compl. ¶¶ 33-35 and ¶¶ 60-62. Count III's enforcement claim under § 7 is a restatement of Count I's appeal of the decision under § 17. Because Count I is necessarily dismissed because it is not timely, Count III cannot stand. Count III will be dismissed with prejudice.
Conclusion
For the foregoing reasons, the Doherty Motion to Dismiss and the Town Motion to Dismiss are each ALLOWED. Judgment shall enter dismissing the Amended Complaint with prejudice.
SO ORDERED
MARINA DARLOW, ADAM DARLOW, IVANA ZGALJIC, JAMES ROCCI, MICHAEL SANDLER, SARA LANGELIER, RICHARD McELROY, JIHONG PARK, EILEEN PARK, and ELISE WELTON, Plaintiffs, v. ARLINGTON REDEVELOPMENT BOARD, EUGENE BENSON, KIN LAU, KATIE LEVINE-EINSTEIN, DAVID WATSON, RACHEL ZSEMBERY, ANDREW BUNNELL, JAMES F. DOHERTY, Trustee of the 1211 Mass. Ave. Realty Trust, and ARLINGTON INSPECTIONAL SERVICES DEPARTMENT, Defendants