NELF provided direct representation in this case to developers who, in 1999, filed preliminary subdivision plans with the Planning Board of Aquinnah (formerly Gay Head), which they followed up with definitive plans in 2000. At the time that the developers filed their plans with the Planning Board, the town had a subdivision moratorium in effect that suspended the deadlines for the consideration of any filed preliminary or definitive plans. The moratorium ended on May 23, 2000. The Planning Board held a hearing on the preliminary plans on August 10, 2000, more than the statutorily mandated 45 days after the end of the moratorium. In addition, the Board never notified the developers of the preliminary plans hearing and denied the preliminary plans in part because of the developers’ failure to attend the hearing. Consequently, no hearing at all was held on the definitive plans. The Planning Board then failed to notify the Trustees of the result of the hearing. Having heard nothing, the developers wrote to the Planning Board on May 8, 2001, seeking acknowledgement of constructive approval of the subdivision; when the Planning Board denied this request in a letter dated May 25, 2001, the developers entered into negotiations with the Board. Their final contact with the Board was on December 17, 2001.
After failing to receive any further response, the developers commenced an action pro se in Superior Court on August 23, 2002 seeking a mandamus requiring the Town Clerk to issue them a certification of subdivision approval. The Superior Court granted the mandamus on September 17, 2002. Kitras v. Jeffers, 2002 WL 31151206 (Mass. Super. Ct.). The Town appealed and in an unpublished opinion the Appeals Court reversed, Town Clerk of Aquinnah, 61 Mass. App. Ct. 1121, 813 N.E.2d 584 (table), 2004 WL 1824307 (August 16, 2004). The sole basis for the Appeals Court’s decision was the developers’ delay in filing their action after receipt of the May 25, 2001 rejection letter. In essence, the Appeals Court in this case elevated dictum from a prior mandamus action into a strict rule that mandamus actions requesting a government entity to act on an application must be brought in a timeframe relatively close to the appeals period that would be applicable if the entity had rejected the application.
Acting on behalf of the developers, on October 29, 2004, NELF filed an application for further appellate review by the Supreme Judicial Court, arguing that the Appeals Court had misconstrued prior precedent which actually makes it clear that timeliness of a mandamus action is determined, not by a strict deadline, but by the equitable doctrine of laches. In this connection, NELF argued that the Appeals Court had improperly dismissed, with minimal discussion, two traditional defenses against laches raised by the developers, namely lack of prejudice and ongoing settlement negotiations. Based on these facts, NELF argued that the Appeals Court’s decision should be overturned.
On December 1, 2004, the SJC denied NELF’s request for further appellate review. On December 20, 2004, NELF filed a request for reconsideration by the SJC of its denial. The SJC denied reconsideration on May 27, 2005.