Opinion
14-P-1113
12-21-2015
MICHAEL MACDONALD & another 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
This cases arises from a dispute between neighbors (the plaintiffs) who live in the Colonial Park subdivision located on Webster Lake regarding the Department of Environmental Protection's (DEP's) decision to grant a license to Norman S. Ruskin to construct a boat dock. The plaintiffs claimed that the dock would interfere with their enjoyment of a beach easement located on Ruskin's property and sought judicial review of the DEP's decision pursuant to G. L. c. 249, § 4. On cross motions for judgment on the pleadings, a judge of the Superior Court ordered the entry of judgment in favor of the defendants. The plaintiffs have appealed. For the reasons that follow, we conclude that the judgment must be vacated.
Webster Lake also is known as Lake Chaubunagungamaug.
Background. The plaintiffs are members of the Colonial Park Beach Association who enjoy the rights to a beach easement located on Ruskin's waterfront property. Following a decision by a judge of the Land Court in which the judge ruled that Ruskin could not build a dock or any structure on the beach because of the beach easement, see Barnett vs. Ruskin, Land Ct., No. 09 MISC 408930 (Dec. 29, 2011), Ruskin applied to the DEP for a license pursuant to its "Simplified Procedures," codified at 310 Code Mass. Regs. § 9.10 (2008), to build a dock adjacent to his property, but entirely within Webster Lake. Ruskin mailed notice of the application to build the dock to abutting property owners and advertised the notice of the application in the local Patriot newspaper for one week. He did not mail notice to any of the residents who hold an easement over his property.
The judgment was affirmed in a memorandum and order issued pursuant to rule 1:28. Barnett v. Ruskin, 83 Mass. App. Ct. 1121 (2013).
Applicants may utilize the DEP's simplified procedures when applying for licenses for "certain small-scale structures." 310 Code Mass. Regs. § 9.10(1) (2008).
The DEP received no public comment and, in a letter dated October 30, 2012, informed Ruskin that it had granted his request for a license. Thereafter, the plaintiffs filed a complaint under G. L. c. 249, § 4, requesting that the license be annulled. They claimed that the dock would interfere with their easement rights and also that the license was issued without direct notice to them in violation of 310 Code Mass. Regs. § 9.10 (2008).
The regulation requires that the applicant provide direct notice to "to any person having a record easement in the property where the structure is or may be located, and to all abutters to the property where the structure is or may be located" (emphasis supplied). 310 Code Mass. Regs. § 9.10(3)(e) (2008).
Having concluded that the plaintiffs failed, in the first instance, to appeal to the DEP to contest the issuance of the license, and therefore, certiorari review was not available, the Superior Court judge dismissed the complaint. The judge also determined that 310 Code Mass. Regs. § 9.10(3)(e) (2008) did not require Ruskin to send direct notice of his application to the plaintiffs.
Discussion. Although the plaintiffs concede that they failed to exhaust the administrative remedies set forth in 310 Code Mass. Regs. § 9.17 (2008), they claim that they were excused from doing so because Ruskin failed to provide them with direct notice of his application for a license. More specifically, they contend that they are entitled to direct notice as persons with an easement interest in the property where the structure is or may be located. See 310 Code Mass. Regs. § 9.10(3)(e) (2008). The judge rejected this claim, finding that the plaintiffs were not entitled to direct notice because the property where the structure is located is Webster Lake and not the beach easement, which "starts at the water's edge, and extends landward." The plaintiffs contend that the judge erred in construing the term "property" in this manner because doing so leads to inconsistent, redundant, and illogical results, namely, requiring notice to every owner of lakefront property. We agree.
The property in this case, as specified in the license application, is Ruskin's lakefront home. Thus, under the plain language of § 9.10, the plaintiffs were entitled to direct notice because they are owners of, abutters to, or persons with an easement interest in Ruskin's property. Accordingly, Ruskin did not satisfy the requirements of § 9.10(3)(e) when he only published notice of the license application in the local newspaper.
The plaintiffs also contend that the judge erred in ordering entry of judgment for the defendants because certiorari review pursuant to G. L. c. 249, § 4, is appropriate where, as here, the DEP issues a license to construct a dock under its simplified procedures. Given our conclusion that the plaintiffs should have received direct notice so that they could be heard before the DEP, we need not address this issue.
Conclusion. We vacate the judgment in favor of the defendants. A new judgment shall enter vacating the decision and order of the DEP, and remanding the matter to the DEP for further proceedings. Those proceedings will require that Ruskin resubmit his license application only after providing proper notice consistent with this decision. Ruskin shall have ninety days from the date of the rescript to file his new application. During that ninety-day period and until such time as the DEP acts upon Ruskin's application, the license currently in effect shall remain valid.
So ordered.
By the Court (Berry, Vuono & Rubin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 21, 2015.