Opinion
14-P-947 14-P-1035
09-01-2015
LEYLA SCHIMMEL v. CONSERVATION COMMISSION OF ANDOVER (and a companion case).
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 plaintiff, Leyla Schimmel appeals from two decisions of the Superior Court, the first (Appeals Court docket number 14-P-947), affirmed the conservation commission of Andover (commission) enforcement order issued on January 25, 2012, and the second (Appeals Court docket number 14-P-1035), affirmed a related order of conditions issued by the commission and imposing certain restrictions and obligations on the locus at 221 Highland Road, Andover (locus). We address the issues in one decision and, substantially for the reasons stated by the judges, affirm.
Prior to submitting her appellate briefs, having transferred the locus to the 221 Highland Road Realty Trust (trust), the plaintiff moved in this court to substitute Sami Herbawi, trustee of the trust, as the appellant. A single justice of this court denied the motion, subject to renewal if the plaintiff, by October 31, 2014, could submit evidence that Herbawi is an attorney or is otherwise authorized to represent the trust in court, or that an attorney has entered an appearance on behalf of the trust. The plaintiff failed to make any such submission; she remains the appellant. According to the regulations adopted by the conservation commission of Andover (commission), an applicant has standing to appeal to the Superior Court from an enforcement order. The commission now argues that the plaintiff lacks standing to pursue this appeal because she conveyed the property to a trust, but cites no authority for that proposition. The commission does not suggest that the plaintiff no longer is bound by the commission's orders, which include orders to restore the property and to compensate the commission's consultant. In any event, "[w]here the merits have been fully briefed and the question of standing is not outcome determinative, we decline to resolve standing and instead turn to the merits." Mostyn v. Department of Envtl. Protection, 83 Mass. App. Ct. 788, 792 (2013).
It is undisputed that the plaintiff altered areas protected by the Wetlands Protection Act and the town of Andover (town) wetlands protection regulations (by-law), by removing weeds, trees, and trash, and placing temporary sheds and a paddock on the locus. On October 12 and 21, 2011, the commission issued enforcement orders requiring remediation of the site. Though not always in agreement, the plaintiff, her agent, and the commission's representative worked together to develop a remediation plan and on January 25, 2012, the commission voted to accept a site plan prepared by the plaintiff's expert with certain modifications as outlined in the "special conditions & findings" attached to an enforcement order issued the same date. The plaintiff filed a certiorari action in the Superior Court challenging the January 25, 2012, enforcement order and a judge granted the commission's motion for judgment on the pleadings.
The plaintiff appealed this judgment and the appeal is docket number 14-P-947.
Meanwhile, the plaintiff filed a notice of intent related to the work required to be performed under the enforcement order and elsewhere on the property. The commission granted an order of conditions containing certain conditions which the plaintiff contends exceed its authority. The plaintiff commenced a second certiorari action and a second Superior Court judge granted judgment on the pleadings to the commission.
The plaintiff appealed this judgment and the appeal is docket number 14-P-1035.
Discussion. A. Enforcement order. The plaintiff first argues that the commission lacked authority to issue an enforcement order containing special conditions and findings because it amounts to an order of conditions. There is no merit to the plaintiff's argument.
The Legislature, pursuant to G. L. c. 131, § 40, has authorized conservation commissions to issue enforcement orders, including orders to restore property to its original condition. Section 12 of the by-law similarly authorizes the commission to enforce the by-law and specifies that the commission may issue orders to restore the property to its original condition and take other action deemed necessary to remedy violations of the Wetlands Protection Act or the by-law. The plaintiff's focus on the procedures related to a properly filed notice of intent and corresponding order of conditions which, in certain circumstances, may be appealed to the Department of Environmental Protection, is misplaced, where the plaintiff violated the Wetlands Protection Act and the by-law by commencing work within the wetlands and buffer zones without filing a notice of intent. While the town perhaps could have enforced the by-law through its permitting authority, it was under no obligation to eschew its enforcement power. As one of the judges noted, the plaintiff's inability to pursue relief from the Department of Environmental Protection is the direct result of her violation of the Wetlands Protection Act and the by-law, and not the result of any failure on the commission's part to inform her that she should file a notice of intent. The plaintiff is presumed to know the law. See Commonwealth v. Benesch, 290 Mass. 125, 135 (1935).
Next, the plaintiff argues that, with regard to remediation, the commission did not support with "scientific evidence" its requirement of an increased number of plantings beyond those recommended by the plaintiff's expert. It was the plaintiff's burden to show the commission's order was arbitrary and capricious. She points to no evidence that the commission's requirements were either excessive or arbitrary. That they exceeded the recommendations of her expert, in and of itself, does not demonstrate that the commission's action was arbitrary or capricious.
An enforcement order "is not the product of an adjudicatory proceeding involving the presentation of evidence. Rather, the order constitutes discretionary action by the commission pursuant to its undisputed authority to enforce the [Wetlands Protection A]ct within the town. Accordingly, our task is not to determine whether the record contains substantial evidence to support the commission's action but, rather, to decide whether the commission exercised its discretion arbitrarily and capriciously." Garrity v. Conservation Commn. of Hingham, 462 Mass. 779, 792 (2012) (citations omitted). "A decision is not arbitrary and capricious unless there is no ground which reasonable [persons] might deem proper to support it," ibid. (citation omitted), and the plaintiff bears the burden of proof that the commission acted arbitrarily and capriciously, ibid.
Finally, the plaintiff contends that her neighbors have violated the Wetlands Protections Act and the by-law but the commission has not taken any action against them or even conducted an investigation. She argues, therefore, that "there is no ground which reasonable [persons] might deem proper to support" the commission's inequitable action against the locus. The plaintiff has provided little detail related to her neighbors' alleged violations and has made no showing that they approach the level of work she undertook in protected areas without filing a notice of intent. Even if the commission's history or practice in enforcing the Wetlands Protection Act and the by-law may be considered in determining whether the commission acted arbitrarily and capriciously, an issue we need not decide, it would have been necessary to compare substantially similar situations. Cf. Lakeside Builders, Inc. v. Planning Bd. of Franklin, 56 Mass. App. Ct. 842, 847 n.6, 850 (2002) (history and practice of planning board are factors that may be considered when deciding whether planning board acted arbitrarily or capriciously, but comparison must be of substantially similar situations). We discern no reason, therefore, to disturb the enforcement order.
B. Order of conditions. It long has been established that the appropriate means of review by an applicant dissatisfied with an order of conditions is action in the nature of certiorari pursuant to G. L. c. 249, § 4. Friedman v. Conservation Commn. of Edgartown, 62 Mass. App. Ct. 539, 542 (2004). A civil action in the nature of certiorari must be commenced within sixty days after the proceeding complained of. G. L. c. 249, § 4. The order of conditions at issue here was issued on February 25, 2013, and the complaint was filed on May 10, 2013, more than sixty days after the order was issued. The plaintiff's communications with the commission after the order of conditions requesting relief from certain conditions did not toll the statutory period. Malone v. Civil Serv. Commn., 38 Mass. App. Ct. 147, 151 (1995). "It is highly unlikely that the Legislature intended that a party seeking extraordinary review by way of certiorari 'should be able to restart the [statutory] period at will by simply petitioning for reconsideration or further hearing.'" Ibid., quoting from Curley v. Lynn, 408 Mass. 39, 41 (1990). Judgment correctly entered for the commission, therefore, if for no other reason than because the complaint was untimely filed.
Although recognizing that the complaint was filed late, the second judge declined to order dismissal of the action because Superior Court Standing Order 1-96 provides that all appeals of administrative agency decisions, including certiorari appeals under G. L. c. 249, § 4, and motions pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), must be filed within twenty days from the date the administrative record is filed. Where the commission failed to file a motion to dismiss on statute of limitations grounds within twenty days, the second judge concluded the commission had waived the statute of limitations defense. We disagree. As has been said with regard to administrative appeals pursuant to G. L. c. 30A, a statutory appeal period "cannot be overridden by a contrary rule of court when the manner and time for effective filing of an appeal are delineated in the statute." Friedman v. Board of Registration in Med., 414 Mass. 663, 665 (1993). See Herrick v. Essex Regional Retirement Bd., 68 Mass. App. Ct. 187, 189-190 (2007), and cases cited. We noted in McLellan v. Commissioner of Correction, 29 Mass. App. Ct. 933, 935 (1990), that "the late filing of an appeal from a decision of an administrative agency is such a 'serious misstep' that the appeal must be dismissed," even when the timeliness issue is raised for the first time on appeal. We conclude, therefore, that the appeal, to the extent it argues that the commission imposed conditions that exceeded its authority, should have been dismissed because the plaintiff failed to timely file her certiorari complaint.
While the order of conditions ordered the plaintiff to pay the fee of a consultant to monitor the work performed under the order of conditions, the actual appointment of the consultant and the $3,850 fee were not communicated to the plaintiff until March 18, 2013. The commission's rule and regulation provides a mechanism to challenge only the qualifications of the consultant, but not the fee imposed. So far as it appears from the record, the fee imposed by the commission is not subject to further administrative appeal. Thus, a certiorari appeal challenging the reasonableness of the fee, filed on May 10, 2013, was timely.
We agree with the judge, however, that the record is insufficient to allow us to conclude that the fee is unreasonable. The fee is supported by the consultant's fee agreement which contains his hourly fee and the scope of the work to be performed. The fee agreement calls for at least thirteen site visits and numerous reports. While the plaintiff generally claims that something less is required, she makes no attempt to attack the reasonableness of the consultant's hourly wage or the specifics of the proposed monitoring schedule and reports. Where the more difficult question whether the commission exceeded its authority by imposing an undefined monitoring fee is not before us because the plaintiff failed to file a timely appeal of the order of conditions, we have no difficulty concluding the plaintiff did not bear her burden of proving that the consulting fee imposed was unreasonable.
As such, the first judge properly allowed the commission's motion for judgment on the pleadings (14-P-947), as did the second judge (14-P-1035).
We deny the commission's request for appellate attorney's fees and double costs in each of the two appeals.
Judgments affirmed.
By the Court (Cohen, Hanlon & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 1, 2015.