Opinion
16-P-1120
06-06-2017
AGNES KEENAN v. DEPARTMENT OF ENVIRONMENTAL PROTECTION & 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
The plaintiff, Agnes Keenan, an abutting landowner, appeals from a judgment entered in the Superior Court upholding the decision of the Department of Environmental Protection (DEP) to deny her a two-week extension of the deadline to file an amended appeal notice. We affirm.
On August 26, 2013, the DEP issued an order allowing the intervener, Wollaston Golf Club, Inc. (Wollaston) to make certain improvements on its property. Keenan appealed the order, and her appeal was dismissed on October 7, 2013, for her failure to pay the required filing fee. On March 17, 2014, the office of appeals and dispute resolution reversed the dismissal, allowing Keenan to pay the filing fee and continue her appeal. On August 7, 2014, the DEP issued a superseding order permitting Wollaston to proceed with its improvements and Keenan again appealed. On September 17, 2014, the DEP chief presiding officer ordered Keenan to file an amended appeal notice by October 1, 2014. On September 26, 2014, Keenan requested a two-week extension of the October 1, 2014, deadline in order to retain different counsel. The DEP denied the request on September 29, 2014, and the DEP chief presiding officer issued a final decision on April 15, 2015, dismissing Keenan's appeal.
Keenan filed a complaint in the Superior Court, asserting that the DEP's September 29, 2014, order denying her request for an extension was an abuse of discretion. The parties filed cross-motions for judgment on the pleadings. The Superior Court judge denied Keenan's motion and allowed the DEP's motion. Keenan appealed.
We review the administrative record to determine if an agency's decision was unsupported by substantial evidence, arbitrary or capricious, or otherwise based on an error of law. See Massachusetts Inst. of Technology v. Department of Pub. Utils., 425 Mass. 856, 867-868 (1997); G. L. c. 30A, § 14(4),(5). An agency's conclusion supported by substantial evidence "need not be based upon the 'clear weight' of the evidence . . . or even a preponderance of the evidence, but rather only upon . . . 'evidence as a reasonable mind might accept as adequate to support a conclusion,' after taking into consideration opposing evidence in the record" (citations omitted). Hotchkiss v. State Racing Commn., 45 Mass. App. Ct. 684, 696 (1998). The party appealing an administrative decision bears the burden of demonstrating that the decision is invalid. See Merisme v. Board of Appeals on Motor Vehicle Liab. Policies & Bonds, 27 Mass. App. Ct. 470, 474 (1989).
The administrative record supports the judge's conclusion and provides no basis for overturning the DEP's decision denying Keenan's request. Substantially for the reasons stated in the Superior Court judge's memorandum of decision and order at pages four and five, we conclude that Keenan has failed to show that the DEP's decision was arbitrary or capricious, not supported by substantial evidence, or otherwise based on an error of law, see Massachusetts Inst. of Technology, supra. Keenan had already delayed the appeals process by failing to pay the required filing fee in a timely fashion and she had ample time to engage counsel. In light of this procedural history, it was reasonable for the DEP to require her to adhere to subsequent deadlines.
Judgment affirmed.
By the Court (Kinder, Henry & Desmond, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 6, 2017.