Opinion
15-P-981
04-13-2017
Marcia DUBEE, trustee, v. CONSERVATION COMMISSION OF BRIDGEWATER& another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
"The broad purpose" of the Wetlands Protection Act, G. L. c. 131, § 40 (act), "is to preserve and protect coastal and other wetlands bordering rivers and other bodies of water." Garrity v. Conservation Commn. of Hingham, 462 Mass. 779, 785 (2012). The act's protections extend to activities in areas "within 100 feet" of a protected area, known as "the Buffer Zone," if, "in the judgment of the issuing authority," the activity will alter an area subject to protection. 310 Code Mass. Regs. § 10.02(2)(b) (2007). This case involves the construction, twelve years ago, of a four-lot subdivision known as Whispering Wood in the town of Bridgewater (town). The development's drainage system allegedly was installed within the Buffer Zone of abutter Henry Dumeroski's fishing pond. Over the ensuing decade, Dumeroski and his neighbor Antone DaSilva consistently complained to town officials that water from the drainage system was causing Dumeroski's pond to cave in.
In 2012, the town conservation commission (commission) requested that the Whispering Wood developer, RETEP Realty Trust (trust) file an after-the-fact notice of intent (NOI) or request for determination of applicability (RDA) of the act with respect to the drainage system's construction. When the trust declined to make either filing on the basis that (1) it had complied with all conditions required by the town at the time of construction, and (2) the statute of limitations had run, the commission issued an enforcement order under the act and the town's wetlands protection by-law.
"A notice of intent is similar to an application for permission to build and seeks a permit otherwise known as an order of conditions, to perform work on land subject to § 40 [of the act]." Zora v. State Ethics Commn., 415 Mass. 640, 643 (1993).
Plaintiff Marcia Dubee, as trustee of the trust, brought an action pursuant to G. L. c. 249, § 4, seeking certiorari review of the enforcement order on the basis that it was barred by the two-year statute of limitations set forth at G. L. c. 131, § 91. Thereafter, the commission levied fines for the trust's noncompliance with the enforcement order. The defendants answered the trust's complaint and counterclaimed for enforcement of the order and the fines, and the parties moved for judgment on the pleadings. Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974). A judge in the Superior Court concluded that the trust's violation of the act was a continuing violation to which G. L. c. 131, § 91, does not apply, allowed the defendants' motion, and ordered judgment for the defendants. We reverse.
Background. On September 9, 2002, the town's planning board held a public hearing on the trust's application to create the Whispering Wood subdivision. There were lengthy discussions regarding the proposed drainage system, with Azu Etoniru, who was both the commission's agent and a member of the planning board, expressing concern that "[t]he drainage system design does not address volume peak rate runoff attenuation." The trust revised the plans, and, at a continuation of the public hearing, announced that it had secured an easement from Dumeroski. The easement is not in included in the record before us, but the trust represented that the easement was granted "in order to create a berm along [Dumeroski's] edge, to make sure [the water] finds its way around the corner into [another] easement" on other land. Etoniru indicated that the revised plans adequately addressed his concerns, and the planning board unanimously approved the subdivision, with conditions. The development was built in 2005, after it had received all town-mandated permits. Three of the four lots were sold, and nearly a decade passed.
On January 26, 2012, the Massachusetts Inspector General (IG) wrote to the commission that its "office had learned" that the trust had constructed a storm water drainage system and level spreader within 100 feet of Dumeroski's pond without first filing a NOI or RDA, as required by the act and its implementing regulations. See G. L. c. 131, § 40, first and twentieth pars.; 310 Code Mass. Regs. §§ 10.02(2)(b) & 10.05(3)(a)(2) (2007). The letter was neither addressed nor copied to the trust. The IG recommended that the trust make an after-the-fact filing, and, on February 9, 2012, the commission discussed the IG's letter in a public meeting. No one representing the trust was present; however, DaSilva, Dumeroski's son John Juliano, who appeared on his father's behalf, and Michael Demos, town councillor for Dumeroski's precinct "were all present to discuss the history of the drainage problems and to see how the Commission was going to move forward in regards to the recommendation of the Inspector General."
DaSilva stated that Etoniru "was notified over and over again" during the past ten years that Dumeroski's pond was caving in as a result of water drainage from the development, but nothing was done. While the planning board voted in 2007 to "fix the problem," DaSilva stated that its decision "was reversed stating the reason was that grass grew." DaSilva "said that Mr. Etoniru is the same voice on both the Planning Board and the Conservation Commission and he has blocked them from speaking to the Commission regarding the problem." In 2009, DaSilva contacted the Environmental Protection Agency (EPA) and was advised that Dumeroski's pond is connected to Beaver Brook, which is connected to the Atlantic Ocean; at the February 9 public meeting, he stated that the EPA "considers the pond a U.S. waterway, and there is a recharge system that was installed forty feet from the pond that doesn't work and shouldn't be there, and that the Town was notified immediately of the existing problem."
Demos stated "that this matter was brought to his attention when he was first elected to the Board of Selectm[e]n in 2008," "that it is well-defined that there is a significant problem with this development and it has been going on for 10 years," and that he has had "numerous meetings with various boards and committees" regarding the issue. Juliano stated that his father did not want Etoniru on his property, DaSilva accused Etoniru of acting unethically, and Etoniru "said that if he heard any more smears of his reputation, or impugning of his integrity, he would sue everybody involved, whether it's the Town of Bridgewater or individually." Etoniru stated that he did not need to enter Dumeroski's property because "he could see everything from the Whispering Wood [ ] site," that he had visited the site during the construction phase and made recommendations regarding erosion control, and "that, to this day, the drainage design standard for runoff control for Whispering Wood[ ] is still higher than [the Department of Environmental Protection] regulations."
The commission next met on February 23, 2012. The record before us does not reflect that anyone from the trust was present. The commission reviewed a slide show depicting the removal of fill in 2002 and 2003, and reviewed a draft letter to the trust requesting that it file an after-the-fact RDA "based on the recommendation of the Inspector General." By letter dated March 2, 2012, the commission requested that the trust file an RDA containing "data and plans indicating the location, size and distance from wetland resources (e.g., ponds [and] streams, bordering vegetative wetlands [BVWs] or other resources) and the closest proximate construction activities completed at the Whispering Wood [ ] subdivision." The commission attached a copy of the IG's letter. The trust responded that it would not make such a filing, because (1) "[t]here was no attempt on any one's part to subvert the requirements of permitting," (2) it had "complied with all of the requirements imposed by the Bridgewater Planning Board," (3) no one had filed an appeal or requested an RDA in the nearly ten years that had passed, and (4) there is a two-year statute of limitations under the act. The commission did not respond, but it did discuss the trust's response at its April 26, 2012, public meeting. Etoniru recommended that an enforcement order issue pursuant to G. L. c. 131, § 40, and the town's wetlands protection by-law, and DaSilva "asked when fines would be assessed for not filing." DaSilva stated that he had contacted the Commissioner of DEP and was "told that the local DEP will be removed from this situation," because DaSilva had a problem "with the local DEP ... not doing anything throughout this whole process." There is no evidence that anyone from the trust was present at the meeting.
On May 3, 2012, based on a finding that the drainage recharge system had been constructed within the Buffer Zone without the commission's prior approval, the commission issued an enforcement order under G. L. c. 131, § 40, and an unspecified provision of the town's wetlands protection by-law, requiring the trust to file an RDA "in order for the Commission to assess whether the constructed systems (drainage, roadway, etc.) complied with the performance standards set forth in 310 [Code Mass. Regs. §§] 10.00 with respect to an existing pond on an abutting land." The order required the trust to file an NOI on or before May 24, 2012, and it warned that noncompliance may constitute grounds for additional legal action, including fines pursuant to § 40. When the trust did not file the requested documents by the time of the commission's May 24, 2012, meeting, the commission discussed strategies for resolving the situation "amicably." The public notice for the meeting did not include any mention of Whispering Wood or the trust in the proposed agenda and the trust received no personal notice. At its next meeting on June 5, 2012, again without public or personal notice to the trust, the commission discussed Whispering Wood and the trust's architect—as "a concerned citizen"—informed the commission that the original contractor was willing to help with a solution "if Mr. Dumeroski is in agreement."
On June 15, 2012, the trust filed its complaint in Superior Court. On June 29, 2012, the commission, again without public or private notice to the trust, discussed the trust's failure to comply with the enforcement order and Etoniru "stated that he is of the opinion that Whispering Wood[ ], as it was designed and built, conformed to the Planning Board rules and regulations." DaSilva and others "implored the Commission to issue fines for not complying with the Wetland Enforcement Order," and Etoniru agreed that fines should be imposed, stating "let them fight you on that." The commission voted to impose fines of $100 per day, retroactive to May 24, 2012, until the trust complied with the enforcement order. On July 10, 2012, the commission notified the trust of its decision to impose fines. At that point, fines of at least $4,700 already had accumulated.
As previously noted, the judge considered the parties' cross motions for judgment on the pleadings and ordered judgment for the defendants. He found that "the imposition of fees was not arbitrary and capricious because [the trust] openly refuse[d] to comply with the enforcement order," as required by the act.
Discussion. 1. Standard of review. A party seeking certiorari review must demonstrate "a substantial injury or injustice arising from the proceeding under review," Frawley v. Police Commr. of Cambridge, 473 Mass. 716, 726 (2016), quoting from Indeck v. Clients' Security Bd., 450 Mass. 379, 385 (2008), meaning "(1) a justiciable injury, (2) that is particular to the plaintiff[ ] rather than common to the public or a segment thereof, and (3) that is more than hypothetical." Id. at 727, quoting from Hoffer v. Board of Registration in Med., 461 Mass. 451, 457 n.8 (2012). "The standard of review varies according to the nature of the action for which review is sought. ... Here, where the action sought to be reviewed was the proper exercise of the commission's discretion" to issue an enforcement order and impose fines, "an ‘arbitrary and capricious' standard should be applied." T.D.J. Dev. Corp. v. Conservation Commn. of N. Andover, 36 Mass. App. Ct. 124, 128 (1994). We take as true the facts alleged in the pleadings, see Jarosz v. Palmer, 436 Mass. 526, 529-530 (2002), giving "no special weight to the view of the Superior Court judge." Fieldstone Meadows Dev. Corp. v. Conservation Commn. of Andover, 62 Mass. App. Ct. 265, 267 (2004). Instead, we review the entire administrative record to determine whether the motion judge "correctly determined that the record before [him] showed no error of law in the commission's decision which adversely affected one of [the trust's] material rights." Carney v. Springfield, 403 Mass. 604, 605 (1988).
2. Enforcement order. "Any activity other than minor activities [not applicable here,] proposed or undertaken within [a Buffer Zone], which, in the judgment of the issuing authority, will alter" a protected area "requires the filing of a [NOI]." 310 Code Mass. Regs. § 10.02(2)(b). Dumeroski's pond is protected by the act, 310 Code Mass. Regs. § 10.02(1) ; therefore, any activities undertaken within the Buffer Zone of his pond generally would have required the filing of a NOI or RDA with the commission "in the first instance." Garrity v. Conservation Commn. of Hingham, 462 Mass. at 783. See G. L. c. 131, § 40, first par.; 310 Code Mass. Regs. §§ 10.02(2)(b) & 10.05(3)(a)(2). If the trust's activities occurred outside of the Buffer Zone, an NOI or RDA would not have been required "unless and until that activity actually alter[ed]" the pond. 310 Code Mass. Regs. § 10.02(2)(d). If the commission determined "that such activity has in fact altered" the pond, it could "require the filing of [an NOI] and/or issue an Enforcement Order" (emphasis added). Ibid.
The enforcement order in this case states as "findings" that "[t]he installed drainage recharge system was constructed within the regulatory buffer zone of a pond without an approval by the [commission]." However, the record is devoid of a finding by the commission that installation of the drainage recharge system would alter or had altered an area subject to protection, and any such assertion in its counterclaim was made "[u]pon information and belief." Photographs in the record, dated 2002 and 2003, show dirt removal but do not demonstrate that the dirt removal altered the pond. Moreover, Etoniru has maintained "that, to this day, the drainage design standard for runoff control for Whispering Wood[ ] is still higher than DEP regulations" require. Absent (1) a finding that development of Whispering Wood "has in fact altered" the pond, 310 Code Mass. Regs. § 10.02(2)(d), or (2) proof "that the specific activity within the buffer zone ... cause[d] ... the alteration," T.D.J. Dev. Corp. v. Conservation Commn. of N. Andover, 36 Mass. App. Ct. at 127, the only violation the trust committed was its procedural failure to file an NOI. That procedural failure occurred in or before 2005, and the enforcement order issued some ten years later is barred by the statute of limitations contained in G. L. c. 131, § 91. The trust's procedural failure does not constitute a "separate offense" for each day the violation continues; under G. L. c. 131, § 40, "separate offense" violations are limited to conduct that alters the area subject to protection. See 310 Code Mass. Regs. § 10.02(2)(d). Quite simply, the commission has not made that finding. Injunctive relief may be warranted, but the trust's procedural error of failing to file a notice of intent is not a continuing violation. See Commonwealth v. John G. Grant & Sons Co., 403 Mass. 151, 156-157 (1988).
We recognize that principles of estoppel may not be applied to public bodies where doing so would "negate requirements of law intended to protect the public interest." O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555, 558 (1986), quoting from Holahan v. Medford, 394 Mass. 186, 191 (1985). However, for nearly ten years, abutters have complained to the commission about the development's alleged impact on Dumeroski's pond. The commission did not take action in 2002 and 2003, when photographs of dirt being removed were taken; it took no action in 2007, when the planning board apparently voted "to fix the problem"; it took no action in 2008, after Demos was elected and had "numerous meetings with various boards and committees" regarding drainage from Whispering Wood; and it did not act in 2009, when it was "immediately notified" of the EPA's opinion that the pond is connected to a United States waterway. The commission did not act until 2012, when it received a letter from the IG, who acts "to prevent and detect fraud, waste and abuse in the expenditure of public funds," G. L. c. 12A, § 7, as appearing in St. 1982, c. 277, § 1, and has no discernable authority under the act. The commission identifies no basis for issuing the enforcement order other than what is contained in the IG's letter, which we do not accept as proof that the drainage system in fact was constructed within the Buffer Zone.
3. Fines. It follows that the commission's decision to impose fines cannot stand. Even had the fines been issued for failing to comply with a lawful enforcement order, we have serious doubts as to the commission's authority to issue and enforce them where the fines were assessed retroactively without notice of the hearing or an opportunity to be heard. "[N]otice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections is an elementary and fundamental requirement of due process," Cappuccio v. Zoning Bd. of Appeals of Spencer, 398 Mass. 304, 312-313 (1986), quoting from Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) ; so too is "[t]he opportunity to present reasons, either in person or in writing, why proposed action should not be taken." Worcester v. Civil Serv. Commn., 87 Mass. App. Ct. 120, 125 (2015), quoting from Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). See G. L. c. 21A, § 16.
The commission has not cited the source of its authority to levy fines administratively, nor has the trust raised this issue.
The trust had no personal or public notice of the June 29, 2012, meeting, at which the commission voted to impose fines, and the commission did not send notice of the fines until thirteen days later. Meanwhile, fines had been accruing from a date that preceded the commission's vote. It is not at all clear that the trust's due process rights were met by the commission's procedure.
We note that the trust's architect appeared before the commission as a "concerned citizen" and not as a representative of the trust.
Judgment reversed.