Opinion
19-P-968
08-06-2020
VIKTORIYA WON v. JONATHAN CREIGHTON & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The plaintiff, Viktoriya Won, filed a complaint against the Cohasset Conservation Commission and its members (collectively, the commission) under G. L. c. 231A, § 2, seeking a declaration that the commission's failure to issue a decision on Won's storm water permit application (the application) within twenty-one days after the "close of the public hearing" as required by Cohasset's storm water bylaw (the bylaw) resulted in a constructive grant of the application. On cross motions for judgment on the pleadings, see Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974), a judge of the Superior Court denied Won's motion and allowed the commission's motion. In a well-reasoned memorandum of decision the judge concluded that notwithstanding the bylaw's use of the word "shall," see supra note 2, the commission did not constructively grant the application through its failure to act because the bylaw does not include a constructive grant provision. The judge further concluded that, in any event, Won acted inconsistently with her claim of a constructive grant when she requested a new hearing on the application after the twenty-one-day period had expired and then withdrew the application after the commission indicated it had additional concerns. As the judge explained, given these circumstances, the application was not constructively granted, and Won "is free to reapply or request the Commission to re-open consideration of the Application." We affirm.
The bylaw states:
"The Commission shall commence the public hearing within twenty-one (21) calendar days from the receipt of a complete application and shall issue its permit, denial or determination in writing within twenty-one (21) calendar days after the close of said public hearing."
Background. Won owns a 2.08 acre residential lot in Cohasset located at 83 Spring Street (the property). Won's plan for the property is to demolish the existing structures (cottage, shed, and outhouse) and construct a new single-family house. In furtherance of this plan, on October 16, 2016, Won filed a storm water permit application pursuant to article 24 of Cohasset's General Bylaws (the storm water bylaw) and a notice of intent (the NOI) under the Massachusetts Wetlands Protection Act (WPA), G. L. c. 131, § 40, and Cohasset's wetlands bylaw. The review process for the application and the NOI were consolidated, and the commission held three public hearings. In response to comments from the commission, Won made multiple revisions to the scope of the proposed work, agreed to requested mitigation measures, and submitted additional information to the commission to demonstrate compliance with applicable performance standards. At the third public hearing, held on December 15, 2016, Won presented a revised plan and requested an order of conditions and a storm water permit. At the close of the hearing, the commission voted to deny the NOI under the WPA and the wetlands bylaw. However, the commission took no action on the application then or any time thereafter.
On January 31, 2017, Won filed a complaint in the Superior Court seeking a writ of certiorari reviewing the denial of the NOI. The complaint did not address the commission's failure to act on the application. Won also appealed from the denial of the NOI to the Massachusetts Department of Environmental Protection (the DEP), and requested a superseding order of conditions. While Won's case in the Superior Court was pending, the DEP issued a superseding order of conditions approving the project under the WPA. Won then requested that the commission reopen the public hearing on the application. The request was granted and a public hearing was held on March 1, 2018. During the hearing, members of the commission indicated there was a potential need for retaining a peer-reviewed consultant at Won's expense. Upon hearing this, Won requested a continuance pending a decision by the Superior Court in the certiorari action reviewing the denial of the NOI. The continuance was granted and the hearing was continued to April 12, 2018.
On March 16, 2018, a judge of the Superior Court issued a memorandum and order on the parties' cross motions for judgment on the pleadings in the certiorari action. The judge allowed Won's motion, and denied the commission's motion. The judge noted that the timing provisions in the WPA are mandatory and held that the DEP's superseding order of conditions governed Won's proposed project and that Won was entitled to proceed in accordance with that order.
Shortly thereafter, on March 23, 2018, Won withdrew the application and the hearing that had been rescheduled for April 12, at Won's request, never took place. On May 24, 2018, Won filed the complaint at issue here seeking a declaratory judgment ordering the commission to issue a storm water permit as its failure to issue a decision on the application within the twenty-one-day period specified by the storm water bylaw constituted a constructive approval of the application. As previously noted, the parties filed cross motions for judgment on the pleadings and Won's motion was denied.
Discussion. Our review is de novo. See Merriam v. Demoulas Super Mkts., Inc., 464 Mass. 721, 726 (2013). We treat a defendant's motion for a judgment on the pleadings pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974), as a motion to dismiss for failure to state a claim upon which relief can be granted, see Jarosz v. Palmer, 436 Mass. 526, 529 (2002), and assume, as we must, that the well-pleaded factual allegations in the plaintiff's complaint are true. See Champa v. Weston Pub. Sch., 473 Mass. 86, 90 (2015).
The parties do not dispute that the commission never issued a permit, denial, or other written determination with respect to the application within twenty-one days from the close of the public hearing on December 15, 2016. Won argues, as she did in the Superior Court, that because the storm water bylaw uses the term "shall," the twenty-one-day deadline for issuing a decision is mandatory, and that the commission's failure to meet this deadline resulted in a constructive approval of the application. The commission, like the judge, points to the absence of a constructive grant provision in the bylaw, and argues that we should not read such a provision into the bylaw when the Cohasset town meeting did not intend to include one. In addition, the commission argues that such a reading would allow projects to proceed without necessary regulatory oversight by the commission in accordance with the bylaw. Finally, the commission contends that recognizing a constructive grant in these circumstances, after Won requested the reopening of public hearing on the application, participated in the hearing, and then withdrew the application, would be to condone the waste of public resources and to undermine the jurisdiction of local planning boards.
We need not decide whether the failure of the commission to act within twenty-one days of the close of a public hearing on an application results in a constructive grant of that application because, even if we were to agree with Won's interpretation of the bylaw, a point on which we take no position, Won is not entitled to the relief she seeks. As recited above, it is undisputed that Won made a request to reopen a public hearing in connection with her application. Won did not assert that the application had been constructively granted at that time nor did she raise the issue at the hearing held on March 1, 2018. Thereafter, Won's consulting engineer, who attended the hearing on Won's behalf, voluntarily withdrew the application before the twenty-day period began to run. Thus, as the commission observes in its brief, Won essentially "abandoned" her application while it was under "renewed" consideration. In these circumstances, Won is not entitled to a declaratory judgment. Instead, as the judge noted, Won is "free to reapply or request the commission to re-open consideration of the application."
More than twenty-one days had already elapsed, but Won did not assert that the application had been constructively granted before the commission at that time, but instead proceeded as if the commission still had jurisdiction and its decision was necessary.
Judgment affirmed.
By the Court (Vuono, Meade & Wolohojian, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 6, 2020.