|Cheryl A. Blaine is an associate with the firm’s Environmental, Land Use and Municipal practice groups. Her practice includes state and local environmental and land use permitting for residential and commercial developments, including power plants, and representation of municipalities on environmental and land use issues.
|Barry P. Fogel has been the senior member of the Environmental and Land Use Law practice group at Keegan Werlin LLP since 1991. Mr. Fogel’s practice includes federal, state and local permitting and compliance for the development and use of public works and commercial, industrial, and residential property; resolution of waste-site liability in real estate transfers and multi-party disputes; and resolution of administrative appeals and civil litigation involving environmental, land use and insurance matters.
The pathway for the development of land in Massachusetts frequently traverses the jurisdiction of municipal conservation commissions established under G.L. c. 40, § 8C. This jurisdiction encompasses wetlands protection under state law and, in many municipalities, under local law as well. Where both state and local law are at play, parallel tracks exist for challenging conservation commission decisions that approve or disapprove work proposed in or near wetland resource areas. In this article, we review recent case law and agency rulemaking that have modified key elements of these appeal processes and might present new pitfalls for practitioners.
Wetland resource areas are protected statewide by the Massachusetts Wetlands Protection Act, G.L. c. 131, § 40 (the “Act”), and the implementing regulations promulgated by the Massachusetts Department of Environmental Protection (“DEP” or the “Department”) at 310 CMR 10.00. In addition, many municipalities have adopted local wetland protection bylaws or ordinances pursuant to their Home Rule authority. See Lovequist v. Conservation Commission of Dennis, 379 Mass. 7 (1979).
To have independent force, the local bylaw or ordinance, and any regulations promulgated by the conservation commission, must not be inconsistent with, and must be more stringent than, the Act and the DEP regulations. Lovequist, at 16 (the Act “establishes minimum statewide standards, leaving local communities free to adopt more stringent controls”). Compare DeGrace v. Conservation Commission of Harwich, 31 Mass. App. Ct. 132 (1991), (conservation commission could not deny a project under local wetland bylaw that merely adopted and incorporated by reference the definition section of DEP’s regulations and, hence, the commission was bound by those definitions and DEP’s interpretation of them).
Most local wetland bylaws and ordinances allow the conservation commission to hear oral presentation under the bylaw or ordinance and the Act at the same public hearing. The conservation commission also may combine its decisions under both the Act and the local law into a single Order of Conditions, either approving or disapproving the work proposed.1 Consequently, any challenge to a conservation commission’s order(s) must take into account the dual jurisdiction of the conservation commission and proceed as parallel appeals. To avoid procedural missteps in connection with such appeals, practitioners should become familiar with the details of these distinct processes.
To challenge a conservation commission’s decision under the Act, an appeal begins in the form of a Request for Superseding Order of Conditions (“SOC”) filed with the DEP regional office. G.L. c. 131, § 40, par. 19; 310 CMR 10.07(a). The Department will perform a de novo review of the application and will issue an SOC that either approves or disapproves of the work proposed in the application.2
An SOC may be challenged by requesting an adjudicatory hearing, a procedure that currently begins with a 90-day prehearing process conducted internally by the Department. If the appeal is not resolved at DEP, the appeal is referred to the Massachusetts Division of Administrative Law Appeals for a hearing conducted by an administrative magistrate. The final order issued at the conclusion of the adjudicatory hearing process may be appealed to Superior Court within thirty (30) days of issuance of the final order, pursuant to G.L. c. 30A.
In contrast, an appeal of the conservation commission’s decision under local law is in the form of a civil action taken directly to court. A complaint filed in Superior Court seeking certiorari review of the conservation commission’s decision is the proper procedure “to correct errors in proceedings which are not according to the course of the common law” and where no other remedy exists. G.L. c. 249, § 4; Lovequist, at 9, 16. It must be noted, however, that the process for appealing the decision under local wetlands law may vary from community to community. Some cities and towns have obtained authorization by special legislation allowing the municipality to implement a different appeal process. See, e.g., DeGrace.
This article summarizes highlights of recent case law and DEP rulemaking on the procedural elements of these wetland appeals, beginning with the thorny issue of how standing to appeal must be established in wetland permitting cases.
Recent amendments to DEP’s standing requirements
The Department recently promulgated amendments to the state wetland regulations, which became effective on February 11, 2005.3 Among these amendments was a revision to the list of “persons” who may initiate the adjudicatory hearing process in a DEP wetland proceeding and imposition of a new prerequisite upon a subset of the “persons” remaining on the list of those who can file an appeal under the Act.
Ten-citizen groups no longer have standing to request an adjudicatory hearing under the act
The Act itself does not address adjudicatory appeals. Accordingly, an appeal of an SOC in the form of a request for an adjudicatory hearing is subject to G.L. c. 30A.
Section 10 of c. 30A provides that agencies shall afford all “parties” to adjudicatory proceedings an opportunity for full and fair hearing. “Parties” is defined in c. 30A, § 1 as:
(a) the specifically named persons whose legal rights, duties or privileges are being determined in the proceeding; and (b) any other person who as a matter of constitutional right or by any provision of the General Laws is entitled to participate fully in the proceeding . . .; and (c) any other person allowed by the agency to intervene as a party.
This same provision also allows agencies to promulgate regulations to further define the classes of persons who may become parties.
Before the recent amendments, the Department’s wetland regulations afforded the right to request an adjudicatory hearing to “any person specified in 310 CMR 10.05(7)(a), whether or not previously a participant in the proceedings, or any ten persons pursuant to M.G.L. c, 30A, § 10A.”4 310 CMR 10.05(7)(j) (2004). Hence, DEP had included “any ten persons pursuant to M.G.L. c, 30A, § 10A” among those who were afforded the right to request an adjudicatory hearing, if the group of ten citizens had participated in DEP’s earlier SOC proceeding. In contrast, G.L. c, 30A, § 10A provides only that “. . . not less than ten persons may intervene in any adjudicatory proceeding . . . in which damage to the environment is or might be at issue . . . .” [Emphasis added].
The right of a ten-citizen group to initiate an adjudicatory hearing in a wetland matter afforded by 310 CMR 10.05(7)(j) (2004), as opposed to the limited right afforded by c. 30A to intervene in an existing adjudicatory proceeding, was clarified by DEP in Matter of Duffy Brothers, Docket No. 98-088, Final Decision (August 9, 1999). In Duffy Brothers, the petitioners who requested a hearing had not participated in DEP’s SOC review of the project. An administrative law judge at DEP who heard the appeal ruled that an “adjudicatory appeal” is the final phase of an “adjudicatory proceeding,” and that in wetland cases the adjudicatory proceeding begins with DEP’s SOC review, not the conservation commission’s earlier public hearing. The decision interpreted G.L. c. 30A, § 10A as providing a means for a ten-citizen group to commence an adjudicatory appeal only by intervening in a prior non-adjudicatory phase of the adjudicatory proceeding initiated by another party. Id.; see also Matter of Labrie Stone Products, Inc., Docket No. 93-066, Final Decision, Order of Dismissal (February 11, 1994).
In its recent amendments to the regulations, the Department deleted the reference from 310 CMR 10.05(7)(j) that “any ten persons pursuant to M.G.L. c. 30A, § 10A” may request an adjudicatory hearing, and added a provision to 310 CMR 10.05(7)(j) stating that “any ten persons may intervene in an adjudicatory proceeding pursuant to M.G.L. c. 30A, § 10A.” By this regulatory change, ten-citizen groups are limited to the rights afforded them under c. 30A.5
New prerequisite for standing to appeal under the act
In addition to eliminating the right of a ten-citizen group to initiate an adjudicatory appeal after issuance of an SOC, the Department added a significant new prerequisite for some of the remaining listed persons to have standing to appeal an SOC. Prior to the amendments, the DEP regulations allowed the applicant, the landowner (if not the applicant), the conservation commission, any person aggrieved by an SOC, any owner of land abutting the land on which the work is to be done, and any ten residents of the city or town where the land is located (commonly referred to as a “ten-resident group”)6 to initiate an adjudicatory appeal without any additional procedural requirements.7
The amended regulations now require that any person aggrieved, any abutter, and at least one resident among a ten-resident group must have been “previously a participant in the permit proceedings” in order to have standing to request an adjudicatory hearing. 310 CMR 10.05(7)(j) (2005). There has been no change in the automatic standing afforded to the applicant, the affected landowner, and the conservation commission to initiate the hearing process.
The amended regulation defines “previous participation in the permit proceeding” more expansively than Duffy Brothers had in the context of appeal by a ten-citizen group. 310 CMR 10.05(7)(j) (2005). While Duffy Brothers identified the DEP’s SOC review, and not the conservation commission’s hearing, as the first phase of the adjudicatory proceeding under the Act, the amended regulation provides that any of the following three actions would satisfy the new prerequisite for participation: (1) the submission of written information to the conservation commission prior to the close of their public hearing, (2) requesting an SOC (or Superseding Determination of Applicability), or (3) providing written information to DEP prior to their issuance of an SOC or Superseding Determination. 310 CMR 10.05(7)(j) (2005).
With the adoption of this new “previous participation” requirement, the Department has eliminated the “automatic” standing that abutters and ten-resident groups previously enjoyed to initiate an adjudicatory hearing and has added a procedural requirement for persons who claim to be aggrieved.
Recent rulings clarify standing to appeal local wetland orders
As summarized above, the appeal of the conservation commission’s decision under a local wetlands bylaw or ordinance follows a separate procedure. Two recent cases highlight the importance of ensuring the proper procedures for appealing local decisions. First, one should check to see if these procedures have been “customized” by the municipality. See Adams v. Town of Orleans Conservation Commission, 2004 WL 3120665 (Mass. Super.). Second, when representing a person other than the applicant, it is absolutely necessary to allege facts sufficient to demonstrate aggrievement in order to have standing to appeal. See Friedman v. Conservation Commission of Edgartown, 62 Mass. App. Ct. 539 (2004).
Local wetland laws can specify an appeal
Lovequist established that certiorari review pursuant to G.L. c. 249, § 4 is appropriate to challenge a conservation commission’s actions under local law. Lovequist, at 9. However, G.L. c. 249, § 4 limits certiorari review to cases “where no other remedy exists.” Some municipalities have obtained special legislation authorizing them to adopt a Home Rule bylaw or ordinance that provides a right of appeal other than certiorari for review of a local decision in that community. Where such a customized review process exists, certiorari review is not available.
Land use practitioners are well-advised to investigate whether review other than certiorari has been established in a particular community, not only to avoid filing the complaint in the wrong forum, but also to ensure that the complaint is timely filed.8 The fate of the petitioner in Adams demonstrates the utmost importance of reviewing local laws to ascertain the proper appeal procedure in each municipality.
The Orleans wetlands bylaw provides that appeals from certain actions of the Orleans Conservation Commission may be taken, within 21 days of the commission’s order or failure to act, to the Second Barnstable Division of the Trial Court. Adams did not file her appeal within the 21-day period with the district court. Rather, she filed a complaint for certiorari review in Barnstable Superior Court within the 60-day period provided in G.L. c. 249, § 4. Adams thereafter amended her complaint to add a count for declaratory judgment. The defendant sought to dismiss the case on the basis that Adams had failed to perfect her appeal in accordance with the provisions of the bylaw.
The court ruled that “certiorari does not provide an additional or alternative avenue of appeal from a town board’s decisions when the bylaw or the general laws provide a specific means of appeal.” Adams, citing Cumberland Farms, Inc. v. Planning Board of Bourne, 56 Mass. App. Ct. 605, 607 (2002). Moreover, the court also held that “an action for declaratory relief cannot be used to avoid the time bar consequences of failure to pursue the appropriate form of appeal of a decision of a local wetlands bylaw.” Adams, citing Balcam v. Town of Hingham, 41 Mass. App. Ct. 260, 266 (1996).9
Facts sufficient to demonstrate aggrievement must be alleged
In Friedman, the Appeals Court found that certiorari review under G.L. c. 249, § 4 may be available to persons, other than the applicant, who can establish that they have suffered injury to a protected legal interest, and held that abutting owners have standing to seek certiorari review of a conservation commission’s decision under a local wetlands bylaw only if they have shown that the commission’s action resulted in a “substantial injury” or “manifest injustice” to them, rather than to the public in general. Id. at 545.
In Friedman, the plaintiffs were thirteen individuals who were deemed to be abutters of a 34-acre parcel on Oyster Pond in Edgartown. The owner of the parcel filed an application with the Edgartown Conservation Commission seeking approval, under both the Act and the Edgartown wetlands protection bylaw, to build a vacation home, accessory buildings and other amenities. The commission issued an approval under both the Act and the Bylaw. The plaintiffs appealed the approval issued under the Act to the regional office of DEP seeking an SOC under DEP’s regulations.
The plaintiffs appealed the commission’s approval under the bylaw to Superior Court, seeking certiorari review under c. 249, § 4. On motions for judgment on the pleadings, the Superior Court ruled that the plaintiffs lacked standing because they failed to make the showing of necessary harm required to obtain certiorari review. On appeal, the plaintiffs claimed that “as residents and owners of land that fronts Oyster Pond, they have standing as abutters within the regulatory framework applicable to review of the [approval] under the [A]ct and that, by analogy, they should also be accorded automatic standing when seeking review in the nature of certiorari.”10
The Appeals Court upheld the lower court’s ruling by first reciting that the function of certiorari review is to correct errors of law in administrative proceedings where judicial oversight is not otherwise available. Yerardi’s Moody Street Restaurant and Lounge, Inc. v. Board of Selectmen of Randolph, 19 Mass. App. Ct. 296, 300 (1985). To have standing to seek certiorari review, a plaintiff must show: (1) a judicial or quasi-judicial proceeding; (2) a lack of all other reasonably adequate remedies; and (3) a substantial injury or injustice arising from the proceeding under review. G.L. c. 249, § 4; Boston Edison Co., v. Board of Selectmen of Concord, 355 Mass. 79, 83 (1968). The Appeals Court noted that certiorari review is an appropriate means of review by applicants dissatisfied with a conservation commission decision that either prevents or restricts development of the applicant’s property, citing Lovequist, at 16, and its progeny. The Appeals Court held that:
[a]lthough in each of the foregoing cases, judicial review was sought by an applicant landowner dissatisfied with the decision of the commission and not by an abutter, we think that certiorari review may also be available to persons, including abutters, who can establish that they suffered injury to a protected legal interest. Friedman, at 542-543.
In reaching this conclusion, however, the Appeals Court noted that “requirements for abutters seeking to establish and retain standing are formidable,” and relied on the factors that were considered by the Supreme Judicial Court (“SJC”) in Enos v. Secretary of Environmental Affairs, 432 Mass. 132, 134-143 (2000), for a person to have standing to challenge a decision under the Massachusetts Environmental Policy Act, G.L. c. 30, § 61 to § 62H (“MEPA”). Among those factors, including: (a) the Legislature’s intent and purpose in enacting the statute, (b) the nature of the administrative scheme, (c) decisions on standing, (d) adverse effects that might occur if standing is recognized, and (d) the availability of other remedies to the plaintiff, the SJC indicated that “special attention” was paid “to the requirement that standing usually is not present unless the governmental official or agency can be found to owe a duty directly to the plaintiffs.” Id.
Applying these factors in Friedman, the Appeals Court held that the local wetlands proceeding provided persons such as the Friedman plaintiffs with a means to “play a role” in the permitting process by, for example, submitting written comments or participating in the public hearings. However, participation in the local proceeding “does not equate with standing to carry a challenge of the ultimate administrative decision into the judicial arena.” Friedman, at 544.
The Appeals Court evaluated the plaintiffs’ claims of aggrievement in light of both Enos, at 135 (to establish standing a party must allege significant injury occurring within the area of concern of the regulatory scheme), and Ginther v. Commissioner of Insurance, 427 Mass. 319, 322 (1998) (“to qualify as a ‘person aggrieved,’ a person must allege substantial injury as the direct result of the action complained of”).
In accordance with these established standing requirements, the Appeals Court found that the Friedman plaintiffs had failed to claim, much less show, that the action they sought to have reviewed resulted in “substantial injury” or “manifest injustice” to them, rather than to the public in general. Rejecting a holding that the plaintiffs had “automatic standing,” and in order not to “greatly expand the remedy of certiorari,” the Appeals Court dismissed the plaintiffs’ claims that “standing is conferred solely by virtue of their assumed status as abutters” or because they were persons with standing to appeal the conservation commission’s order under the Act and DEP’s regulatory framework. Id.
1. A conservation commission also can issue separate Orders under the Act and local wetland law (e.g., one approval and one disapproval) where the two authorities protect different interests or contain different performance standards.[back]
2. The issuance of an SOC is subject to additional elements that are not the subject of this article. See, e.g., 310 CMR 10.05(7)(h), and DEP Wetlands Protection Program Policy DWW 91-1.[back]
3. Citations herein to the amended DEP regulations include the notation (2005). Citations to the DEP regulations in effect prior to the amendments include the notation (2004).[back]
4. The regulation at 310 CMR 10.05(7)(a) (2004) had specified the following list of persons: (1) the applicant, (2) the owner, if not the applicant, (3) any person aggrieved by an order; (4) any owner of land abutting the land on which the work is to be done, (5) any ten residents of the city or town where the land is located, and (6) the Department.[back]
5. In describing its decision to eliminate the right of appeal for ten-citizen groups, the Department wrote in the preface to the recent amendments that “[t]he Department’s extension of appeal rights beyond minimum requirements has led to delays in resolving appeals and questions about the legitimacy of appeals that appear to lack a true environmental basis.”[back]
6. A ten-resident group under 310 CMR 10.05(7)(a) is simply a group of ten or more persons who reside in the city or town where the work is to be performed. A ten-citizen group is a group of ten or more citizens of the commonwealth authorized by G.L. c. 30A, § 10A to intervene in an adjudicatory proceeding in which damage to the environment is or might be at issue.[back]
7. Of course, a “person aggrieved” by an SOC must show that they are a “person who, because of an act or failure to act by the issuing authority, may suffer an injury in fact which is different in magnitude from that suffered by the general public and which is within the scope of the interests identified in the [Act].” 310 CMR 10.04. The other listed persons who can appeal do not need to claim to be aggrieved.[back]
8. Although not critical to the ruling in DeGrace, Harwich too had obtained special legislation authorizing the town to adopt a bylaw specifying that appeals must be taken to the District Court.[back]
9. The careful practitioner should review not only a local wetlands bylaw or ordinance for special appeal procedures, but also any regulations promulgated by the conservation commission. For example, although the wetlands bylaw in Swansea is silent regarding appeals procedures, the Rules and Regulations of the Swansea Conservation Commission under the Bylaw state the following:
‘Appeals …’ . . . shall be reviewable in Superior Court in accordance with G.L. c. 249, sec. 4 or as otherwise provided by law, but is subject to the filing of a notice of appeal which must be received by the commission within 10 days of the issuance of the decision.” (Emphasis added.)
Absent a Special Act of the Legislature authorizing a different appeal procedure in Swansea, the ten-day notice provision in the commission’s regulations may not have the effect of varying the appeal period or other procedures identified under c. 249, § 4. However, the practitioner should confirm and comply with such requirements, as they may be found to be valid prerequisites to appeal.[back]
10. As noted herein, under DEP’s wetland regulations both before and after the recent amendments, abutters and groups of ten residents do not need to show aggrievement in order to have standing to challenge an order issued under the Act by a conservation commission or the Department.[back]