Opinion
15–P–1484
05-10-2017
Steven BANKERT v. CONSERVATION COMMISSION OF NORTH ATTLEBORO & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Steven Bankert owns property in North Attleboro abutting Falls Pond, which is owned by the town of North Attleboro and managed and controlled by the North Attleboro conservation commission (commission). Citing noncompliance with certain local regulations governing structures on Falls Pond, the commission denied Bankert's application for a permit to extend his existing dock by an additional thirty-two by eight feet, and to add a boat lift. Bankert's principal argument on appeal is that the regulations on which the commission relied to deny his application were never properly enacted and are therefore unenforceable. On Bankert's motion for judgment on the pleadings in an action in the nature of certiorari, a judge of the Superior Court rejected Bankert's argument and ordered entry of judgment for the defendants. We affirm.
General Laws c. 40, § 8C, provides for a conservation commission to adopt rules and regulations pertaining to land and water use under its control. Bankert points to discrepancies in the commission's minutes to support his argument that the regulations are invalid. Although minutes from a May 28, 2002, commission meeting reflect a continuation of a May 21, 2002, public hearing, on pond regulations for Falls Pond and other areas under the commission's jurisdiction, the minutes are vague as to which regulations the commission voted on and the outcome of the votes. Those defects were eliminated, however, when, on March 4, 2003, the commission voted to correct the May 28, 2002, minutes to reflect that the regulations voted on included the "Town of North Attleboro Conservation Commission Rules and Regulations Governing Structures on Fall's and Whiting's Pond" which, the subsequent minutes specify, were adopted unanimously, with one commissioner abstaining.
Bankert's suggestion that there was no notice that the hearing would continue on May 28 is refuted by the minutes of the May 21 hearing reflecting a vote to continue the hearing to May 28.
Nearly ten years later, in March, 2012, Bankert submitted his pond permit application to extend his existing dock by an additional thirty-two by eight feet, and to add a boat lift. The commission's regulations include a limitation of one structure at a property's shoreline. At the hearing on the permit, several of the commission members commented on the fact that there are already two structures at Bankert's shoreline.
In a confusing and vague argument, Bankert seems to suggest that he will not have more than one structure at the property's shoreline. A locus plan contained in the record, however, clearly depicts more than one structure already, one coming from the "beach" and one or more coming from what appears to be a residential structure. Bankert suggested at the commission's hearing that one of the structures is temporary and, perhaps, is not on his property. The commission's regulations, however, do not distinguish between temporary and permanent "structures." Moreover, to the extent the commission considered the thirty-two foot "extension" to be a separate structure from the existing structure or that the proposed boat lift constituted a separate structure, we will not disturb the commission's reasonable interpretation of its regulations.
In arguing that the regulations never were adopted properly, Bankert points to the fact that the May 28, 2002, minutes were further amended and restated after a vote on November 25, 2003, to reflect that on May 28, there also had been a motion to hire an outside consultant for review, as it happens, of Bankert's property and then pending project. The November 25, 2003, revised minutes, however, do not reflect the changes that had been made on March 4, 2003. Bankert contends, without citation to legal authority, that the November 25, 2003, version of the May 28, 2002, minutes must be given final effect and, because that version does not include the March 4 revisions, the vote did not happen. We simply disagree.
It is not clear what matter was before the commission in the 2002–2003 time period.
Bankert cites no authority for the proposition that the November 25, 2003, revisions had to include the March 4, 2003, revisions. The November 25, 2003, revisions did not purport to alter anything contained in the March 4, 2003, revisions. While the record-keeping is perhaps less than ideal, we discern no reason to ignore the March 4 revisions. We agree with the judge, therefore, that the regulations were properly adopted, as reflected in the March 4, 2003, revised minutes of the May 28, 2002, meeting.
Bankert's argument that the commission failed to forward the regulations to the town clerk within ten days after they took effect pursuant to G.L.c. 40, § 33, is belied by the corrected addendum which reflects the regulations were forwarded to the town clerk on May 29, 2002. Although the letter forwarding the regulations indicates they were adopted on May 21, the record reflects they were first considered on May 21, but the only votes on that date were to forward them to town counsel for review and to continue the hearing to May 28. They were adopted on May 28, 2002, as reflected in minutes revised on March 4, 2003. Again, though the letter forwarding the regulations contains a typographical error, the regulations attached are those "Governing structures on Fall's and Whiting's Pond."
Contrary to Bankert's contention, we do not interpret the limited pages of the deposition of commission member Shannon Doyle as refuting the existence of the regulations. The context of the questioning is unclear, as are Doyle's qualifications. We also reject Bankert's suggestion that the failure to cross reference the regulations in the "Policies and Guidelines" concerning the Wetland Protection Act adopted by the commission in 2003, proves that the regulations had not been adopted. As a general matter, the 2003 policies and guidelines do not reference specific wetlands, local ponds, or structures on those ponds. For that reason, we cannot conclude that the absence of a cross reference to the regulations has any bearing on the issue whether the regulations had been adopted.
Finally, while Bankert contends the regulations have been applied inconsistently and his property has been inappropriately singled out, he cites to no instances where a permit for a thirty-two foot extension and a boat lift has been allowed on property where an extensive dock, and possibly a second dock, already exist. While history and practice may be considered in determining whether the commission acted arbitrarily or capriciously, the comparison must be of substantially similar situations. Compare Lakeside Builders, Inc. v. Planning Bd. of Franklin, 56 Mass. App. Ct. 842, 847 n.6, 850 (2002). Bankert's statistics on the number of docks on the pond provide little basis for comparison and certainly do not show disparate treatment. For one thing, Bankert seems to ignore the existing structures at his shoreline.
At times in the brief, Bankert suggests he should have been granted an order of conditions allowing the project. The record reflects that Bankert appealed from the denial of his notice of intent to the Department of Environmental Protection (DEP) which issued a superseding order of conditions denying the project because the commission, as owner of the pond, had not granted written permission for the proposed work as required by 310 Code Mass. Regs. § 10.05(4)(a) (2008). It does not appear that Bankert appealed from the DEP superseding order. To the extent that any issue regarding the order of conditions is properly before us, it has not been shown that the commission's and the DEP's denials for failure to comply with § 10.05(4)(a) were in error.
We have considered Bankert's remaining arguments and discern no reason to disturb the judgment.
Judgment affirmed.