Section 11.05 - Appeals to the Council(1)Scope. 980 CMR 11.05 shall apply to appeals under M.G.-c. 164, § 69H1/2 to the Council or its hearing officer by parties aggrieved by action or failure to act on the part of any permitting and licensing agency.(2)Application of 980 CMR 1.00. The following regulations from 980 CMR 1.00 apply to appeals under 980 CMR 11.05: Docket [1.02(1)], Signatures [1.02(4)], Date of Receipt [1.02(5)], Extensions of Time [1.02(6)], Ex Parte Communications [1.02(7)], Notice of Hearing [1.03(3)], Prehearing Conferences [1.03(5)], Hearings, Hearing Officer [1.04(1)], Motions [1.04(3)], Evidence, Privileges [1.04(4)], Matters for Offical Notice [1.04(5)], Objections and Offers of Proof [1.04(6)], Production of View of Objects [1.04(7)], Oral Arguments and Briefs [1.04(8)], Subpoenas [1.05(1)], Intervention [1.05(2)], Participation [1.05(3)], Substitution of Parties [1.05(4)], Consolidation [1.05(5)], Depositions [1.05(6)], Continuances [1.05(7)], Conferences [1.05(8)], Stipulations [1.05(9)], Written Testimony [1.05(10)], Post Hearing Filings [1.05(11)], Re-Opening Hearings [1.05(12)], Form of Decisions [1.06(1)], Settlements [1.06(2)], Tentative Decisions [1.06(3)], Opportunity for Review of Tentative Decisions [1.06(4)], Final Decisions [1.06(5)], Notice of Decisions [1.06.(6)].(3)Who Mav Appeal. Parties aggrieved by an agency action or failure to act may appeal. Parties aggrieved include the developer and any party to the agency proceedings determined by the Council to be specifically and substantially affected by those proceedings.(4)Settlement of Appeal. Before filing an appeal, a party aggrieved must contact the Council. The Council shall notify the other parties to the proceedings below, as well as the agency being appealed, and may require an informal settlement conference before the appeal can be filed. Said conference should be held within ten days after the Council has been contacted.(5)Time for Appeal. An appeal under 980 CMR 11.05 must be filed within 20 days after the agency's action or failure to act, or within ten days after the conclusion of the 980 CMR 11.05(4) settlement conference, whichever is later. An agency is not deemed to have "acted or failed to act" until after the party aggrieved has exhausted his administrative remedies.(6)Filing. Papers or documents relating to appeals under 980 CMR 11.05 shall be delivered by hand or mailed to the Council or its designated hearing officer. They shall be deemed filed on the date received by the Council. Papers or documents filed shall be titled: " 980 CMR 11.05 Appeal by ____________________(party Aggrieved) from_______________________________________(Agency)."(7)Appeal. An appeal filed under 980 CMR 11.05 shall contain the following: (a) The name, address and the phone number of the appellant and attorney, if any;(b) The name of the respondent agency;(c) The names and addresses of any other participants or parties to the earlier proceedings with the respondent agency;(d) A description of the action or failure to act which is being appealed, and a brief outline of procedural steps already taken;(e) A description of facts and documentation in support of appellant's claim for relief;(f) Argument on the issues of energy needs, cost and environmental impact;(g) A description of the relief being sought;(h) A description of efforts which have been and are being made to resolve or settle the dispute; and(i) Where adjudicatory proceedings have been conducted by the agency being appealed, a full record of said agency decision. Appellant shall request that the agency issue findings of fact and conclusions of law, and shall provide these.(8)Notice of Appeal. The appellant shall send, certified or registered mail, return receipt requested, or hand deliver, a copy of the appeal at the time of fiUng to the director, secretary, commissioner or other person authorized to receive process within the agency from which the appeal is taken and to any parties and participating persons at the earlier agency proceedings. With the copy of the appeal, appellant shall also give notice that answers, petitions to intervene and petitions to participate under 980 CMR 11.05(9) must be filed within ten days after receipt of the notice.(9)Answer. Petitions to Intervene or Participate.(a) Answers and Petitions to Intervene or Participate must be filed with the Council, and copies shall be sent to the other parties, within ten days after receipt of notice of the appeal, unless the Council, for good cause, grants an additional seven days.(b) The Answer by the respondent agency shall describe: 1. the extent to which respondent wishes to participate in the appeal proceedings,2. the course of the earlier proceedings with the appellant,3. relevant facts and documentation, and4. respondent's position or relief sought.(c) Petitions to Intervene or Participate shall be filed in accordance with 980 CMR 1.05(2) and (3). The Council or its hearing officer shall allow seven days for objections, then rule in accordance with 980 CMR 1.05(2) and (3) within an additional seven days.(10)Hearings. Hearing Officer. The hearing officer shall conduct hearings under 980 CMR 11.05 in accordance with 980 CMR 1.04(1). Hearings shall be commenced as soon as possible after the close of the pleadings, and in no event more than 25 days after an answer under 980 CMR 11.05(9) has been filed.(11)Official Record and Transcript. For any appeal under 980 CMR 11.05, the hearing officer shall keep an official record, including testimony and exhibits, in an individual docket. The hearing officer may, but is not compelled to, require that the hearing be taken by sound recording or be reported by a stenographer. Any objections to the accuracy of a transcript not raised within ten days after the transcript is made available to the parties are waived. Any transcript shall be included in the official record of the proceeding.(12)Scope of Review. When adjudicatory findings of fact in the context of a final decision made by an agency within the statutory jurisdiction of said agency are challenged by an applicant, review on an appeal under 980 CMR 11.05 by the Council of said findings shall be limited to the record presented before the agency; provided, however, that the Council may modify the agency findings of fact or substitute its own findings therefor if the Council determines that said agency findings are;(a) in excess of the statutory authority or jurisdiction of the agency;(b) unsupported by substantial evidence;(c) arbitrary or capricious or an abuse of discretion; or(d) not sufficient to permit adequate Council review of the appeal pursuant to the Council's obligation to decide the appeal based upon energy needs, cost, and environmental impact. Any party wishing to challenge agency findings of fact shall specify which of the grounds above is relied upon and shall state the substance of his claim, including citations to the portions of the agency record he relies upon.
In such cases, the Council may take evidence itself or remand questions of fact to the agency for further proceedings, consistent with the 90 day time limit set forth in M.G.L. c. 164, § 69H1/2
In reviewing facts found by an agency, the Council shall give due weight to the experience, technical competence and specialized knowledge of the agency. Nothing in this section is intended to limit the authority of the Council to decide questions of fact not raised or decided in the context of the final decision of the agency.
(13)Tentative Decision. The requirements of 980 CMR 1.06(3) shall be followed by the hearing officer in reaching a tentative decision. The tentative decision shall be reached within 14 days after the close of the hearing, shall state the reasons therefor, and shall be based upon energy needs, cost, and environmental impact.(14)Final Decision. The requirements of 980 CMR 1.06(5) and (6) shall be followed by the Council in reaching a final decision. The final decision shall be reached no later than 90 days after the appeal has been filed, shall state the reasons therefor, and shall be based upon energy needs, cost, and environmental impact.(15)Effect of Decision. A final decision under 980 CMR 11.05(14) shall for all purposes, including judical appeal, be deemed equivalent to final agency action on the approval, permit, license, certificate or permission which is the subject of the appeal, unless the Council specifies othenvise in its final decision.(16)Judicial Review. Any party aggrieved by the final decision may seek judicial review in the manner provided by M.G.L. c. 25, § 5.