Opinion
15-P-716
04-25-2016
CHRISTINE MCINTYRE & others v. ZONING BOARD OF APPEALS OF BRAINTREE & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from the dismissal by a Land Court judge of their appeal pursuant to G. L. c. 40A, § 17, and G. L. c. 249, § 5, and seeking declaratory relief. We vacate the dismissal and remand the case to the Land Court for further findings and proceedings consistent with this decision.
Background. The facts leading to the dismissal are not in dispute. As required, the Land Court judge accepted as true all of the allegations contained in the plaintiffs' complaint. See Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Ct., 448 Mass. 15, 20-21 (2006). He also considered various recorded instruments submitted with the pleadings and documents referred to in the complaint. We summarize the judge's recitation of the facts.
Plaintiffs Matthew and Christine McIntyre reside at 2 Spruce Street in the town of Braintree (the town). Plaintiffs Joseph and Jane Murphy reside at 37 Myrtle Street, while plaintiff Martine D. Murphy resides at 42-44 Myrtle Street. Defendants Mento Enterprises, Inc. (Mento), and JJM Myrtle Street Corporation (JJM) are located at 1157 Washington Street. Mento and JJM are related entities and have the same president, John Mento. JJM is the record owner of a parcel of land at 38 Myrtle Street consisting of 6,608 square feet (the property). The property is, and has been at all times material hereto, located in the town's residential B (RB) zoning district. Under the zoning by-law, the RB district requires a minimum lot area of 15,000 square feet with a minimum lot width of one hundred feet.
In May of 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). In February of 1987, the owners recorded the ANR plan. Within one year of the grant of the 1986 variance, the property was not transferred and no building permit was applied for or granted.
In April of 2013, the plaintiffs learned that the property was listed for sale. During that spring and summer, several of the plaintiffs met and/or spoke with various town officials, including the mayor, about their position that the property was not a buildable lot under the zoning by-law and that the 1986 variance had lapsed. Nevertheless, on August 13, 2013, a building permit for the property was issued to JJM and Mento. Construction on the property commenced the next day. The plaintiffs were not provided with notice prior to the beginning of construction.
Sometime after August 14, 2013, the plaintiffs inquired 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 they were denied access to the permit itself. The plaintiffs believed the issuance to be in violation of the zoning by-law. On September 12, 2013, Christine McIntyre went to the town hall 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 regard to the building permit. She told the town 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. The town solicitor told Ms. McIntyre that the deadline was not until September 27, and that the plaintiffs had additional time. The September 27 date 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.
On September 27, 2013, the plaintiffs filed an appeal with the zoning board of appeals of the town (board) from the building inspector's decision to issue the building permit. A public hearing was held on November 26, 2013, where, after hearing evidence, the board voted to "defer the petition to the December 17, 2013 Zoning Board of Appeals meeting." On December 17, 2013, the matter was continued to January 8, 2014.
On January 8, 2014, the board met and heard further evidence on the appeal. The board then closed the public hearing. As of January 17, 2014, no decision by the board had been filed with the town clerk. More than one hundred days having elapsed since the filing of the appeal, the plaintiffs, on January 17, 2014, in accordance with G. L. c. 40A, § 15, filed with the town clerk notice of the constructive approval of their appeal. Later that same day, a decision of the board on the plaintiffs' appeal issued, purporting to "deny the requested relief for failure to timely file the appeal." The decision was filed in the office of the town clerk.
Discussion. Citing Connors v. Annino, 460 Mass. 790, 797 (2011), the judge concluded that the court lacked jurisdiction to consider the plaintiffs' appeal because they did not comply with the thirty-day deadline set forth in G. L. c. 40A, § 17. The judge rejected the plaintiffs' claim that the board should be estopped from asserting that the appeal was not timely, and ruled that any reliance by the plaintiffs on the town solicitor's statement of the filing deadline was unreasonable as a matter of law.
"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." Bongaards v. Millen, 440 Mass. 10, 15 (2003). The complaint alleges that "[t]hese essential factors are present in this case." Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 123 (1992). While we agree with the judge that courts have been reluctant to apply the principles of estoppel to public entities, see Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Ct., 448 Mass. at 30-31, it is well settled that the doctrine may be applied "when to refuse it would be inequitable," Cleaveland v. Malden Sav. Bank, 291 Mass. 295, 297 (1935). The alleged statements by the town solicitor and the mayor in this case "were not the sort that negated the requirements of law intended to protect the public interest such that the plaintiffs should be precluded from asserting a claim from estoppel," Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Ct., supra at 31, and, we conclude, the plaintiffs should have been allowed to expand the record through discovery in order to further their claim.
Accordingly, we vacate the judgment of dismissal, and remand this case to the Land Court for further proceedings consistent with this decision.
So ordered.
By the Court (Wolohojian, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 25, 2016.