Opinion
13-P-1193
06-02-2015
ROCCO PLAZA, LLC v. PAUL STEEVES & another.
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
This case involves a dispute between the plaintiff, Rocco Plaza, LLC, and the defendants, Paul Steeves and the Board of State Examiners of Plumbers and Gas Fitters (State board) over the application of the Uniform State plumbing code, 248 Code Mass. Regs. §§ 10.00 et seq. (2005), to a "grease trap" device installed by the plaintiff as part of the septic system that the plaintiff installed to serve its strip mall in Norfolk (town). The grease trap, a device which separates grease and oil from other sewage, was approved by the town's former plumbing inspector as in compliance with the State's environmental code, 310 Code Mass. Regs. § 15.222. The dispute arose as a result of a letter dated December 21, 2010, from Steeves, the town's then plumbing inspector, to the plaintiff notifying it that it was in violation of the State's plumbing code because there was no record of a permit having been issued for the grease trap under that code nor a record of the work having been inspected for compliance with the plumbing code. The letter informed the plaintiff that it had thirty days to come into compliance with the law, and that it had the right to appeal the decision to the State board.
While the plaintiff corresponded by letter with Steeves on January 19, 2011, contesting his interpretation of the law, it did not appeal his decision to the State board until February 3, 2011. The State board dismissed the appeal as untimely, and the plaintiff filed a complaint in the Superior Court seeking review of the State board's decision under G. L. c. 30A and declaratory relief. Steeves successfully moved to dismiss the plaintiff's complaint under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). A separate and final judgment as to Steeves subsequently entered, and the plaintiff filed a notice of appeal from that judgment. The State board subsequently filed a motion for judgment on the pleadings, which was allowed. A separate judgment for the State board entered, and the plaintiff appealed from that judgment.
We agree with the reasoning and decision of the State board and the judge who reviewed it under G. L. c. 30A, § 14. The plaintiff's appeal was untimely because it was beyond the ten- day period within which such appeals must be taken. See G. L. c. 142, § 13. The written response by Steeves to the plaintiff dated January 24, 2011, was not a new or revised ruling. It did not establish a new appeal period.
The plaintiff argues in the alternative that "the Town" is estopped from arguing that the plaintiff's appeal is untimely, because a member of the board of selectmen told him that he had "an extension on the letter" in an e-mail sent on January 21, 2011. Not only is there no evidence that the selectman had any authority to grant an extension, the e-mail in question was sent after the appeal period had expired.
We also agree with the judge's decision to decline to grant relief against the State board under the plaintiff's count for a declaratory judgment that there was a conflict between the State's environmental code and the plumbing code. As the judge observed, the "Grease Trap Advisory" notice issued on October 24, 2011, by the Massachusetts Department of Environmental Protection harmonizes the overlapping provisions of the two codes and informs the public that it is required to comply with the applicable provisions of each code "when designing and installing exterior grease traps." See Pilgrim Co-op. Bank v. Commissioner of Banks, 369 Mass. 963 (1976).
Final judgment for Paul Steeves, dated June 13, 2012, affirmed.
Judgment for Board of State Examiners of Plumbers and Gas Fitters, dated May 7, 2013, affirmed.
By the Court (Fecteau, Agnes & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 2, 2015.