Publications

Case Decisions-Summer 2011

WETLANDS: In two recent decisions, the Massachusetts Appeals Court (the “Court”) has  clarified when declaratory judgment is the correct mechanism, rather than an appeal in the nature of certiorari, to affirm the timetable for local conservation commissions (“ConCom”) to issue decisions, as well as described what to do when a local bylaw is silent as to deadlines.  This is an extension of the ruling in Oyster Creek Preservation, Inc. v. Conservation Commission of Harwich, 449 Mass. 859 (2007).

In Arthur Lippman & another v. Conservation Commission of Hopkinton & another, Docket 10-P-1776 (8-3-2011), the Court determined that declaratory judgment rather than an action in the nature of certiorari is appropriate where the applicant sought an appeal of the ConCom’s denial of a Notice of Intent (“NOI”), when such denial occurred beyond the statutory 21-days after the close of the public hearing.  The applicant requested a Superceding Order of Conditions (“SOC”) from the Massachusetts Department of Environmental Protection (“DEP”), for which DEP issued a SOC for the proposed work.  Two months later after an abutter/intervener filed an appeal with DEP, the applicant filed a complaint in the nature of certiorari to review the ConCom’s denial of their NOI, followed by a complaint seeking a declaratory judgment that the ConCom’s denial was without effect and that the DEP’s SOC governs.  The Court considered the methods used by the applicant and determined that although it is ordinarily true that, in the absence of language to the contrary, the appropriate means of review of the ConCom’s decision of the local bylaw is in the nature of certiorari, the Court said in this situation it is appropriate to request a declaratory judgment to establish the validity of the DEP’s SOC when the local order was found to be a nullity.

In Peter Huie & another v. Conservation Commission of Scituate & another, Docket 10-P-1887, (an unpublished decision issued by the Appeals Court, (7-12-2011)), the plaintiff appealed a judgment from the lower court that dismissed its complaint, in the nature of certiorari, of a decision issued by the ConCom under its bylaw for a Determination of Applicability (“DoA”).  This ConCom decision was issued more than the 21-days allowed in the regulations and therefore was without effect.  The Court said that because the local bylaw did not specify a time by which a decision must be issued, the DEP regulations govern.  The Court said that the plaintiff correctly used declaratory judgment to establish the effectiveness of the DEP decision and the ineffectiveness of the ConCom’s action.

THE TAKEAWAY: Watch the regulatory requirements regarding timetables.  Under ordinary circumstances, an action in the nature of certiorari is the correct claim to make to appeal a decision of the local by-law; but where failure to issue a decision timely or silence as to when a timely decision occurs, the DEP regulations apply and in such cases it is declaratory judgment that is the proper claim to make.

CHAPTER 91/BEACH RIGHTS: In James Kane & others v. Cedric J. Vanzura & others, the Appeals Court addressed deeded and prescriptive rights, and the Colonial Ordinance of 1641-1647 in the context of beach access.  Property owners in Hingham brought suit in Superior and then Land Court against adjacent landowners who took steps to block access to the beach, where these property owners claimed they had deeded rights of access.  The Land Court decided against those claiming access rights, but the Appeals Court (the “Court”) reversed.  The Court stated that deeded rights from prior owners, along with historical tidelands ordinances, included access to the beach, and therefore those current owners held easement rights to access the beach.  Further, the Court affirmed the Land Court’s decision that some of the property owners had established prescriptive rights to access the beach, as they had sustained the requirements of “regular, seasonal use…for access to the beach, for periods well in excess of the prescriptive period.”

THE TAKEAWAY: Look at the deeded rights and those rights established by prescription.  Just because it’s “your” land doesn’t mean others can be denied access through it, based on various property rights and access to waterways.

MEPA:In Ten Persons of the Commonwealth & another v. Fellsway Development LLC & others, (8-11-2011) the Supreme Judicial Court (“SJC”) issued a decision addressing the MEPA process.  Here ten residents brought an action against various developers, the Secretary of Environmental Affairs, and the Commissioner of the Massachusetts Department of Conservation and Recreation (“DCR”) in Superior Court seeking declaratory judgment and injunctive relief from alleged violations of the Massachusetts Environmental Policy Act (“MEPA”), under G.L. c. 214, §7A, and c. 231.  The case involved the redevelopment of the former Boston Regional Medical Center in Stoneham, situated within the Middlesex Fells Reservation and along a roadway owned and maintained by the DCR.  The Superior Court found for the developers by dismissing the actions. Relying on earlier decisions involving MEPA cases (see, Villages Dev. Co. v. Secretary of the Executive Office of Envtl. Affairs, 410 Mass. 100 (1991), Cummings v. Secretary of Envtl. Affairs, 402 Mass. 611 (1988),  Allen v. Boston Redevelopment Authority, 450 Mass. 242 (2007), and Enos v. Secretary of Envtl. Affairs, 432 Mass. 132 (2000)), the SJC restated its ruling that the Court does not have subject matter jurisdiction over a decision by the Secretary of Environmental Affairs, as the MEPA statute applies to an agency or authority or private person causing or about to cause environmental damage, and that “the Secretary was not the ‘person’ causing such environmental damage.“   Conversely, the SJC found there was subject matter jurisdiction over the developers and DCR, as they were the proper entities from which the SJC could “hear a claimed violation of MEPA.”  The defendants also raised the issue of whether the Ten Residents had standing to bring a claim under c. 231A, motion to dismiss under §12(b)(1).  The SJC ruled that while the plaintiffs lacked standing under c. 231A, they did have standing under c. 214,§7A and therefore upheld the lower court’s decision to dismiss the case.  Lastly, the SJC considered the charge of “failure to state a claim” with regard to whether the developers had violated MEPA’s “anti-segmentation” regulations by delaying certain aspects of the project in order to evade the need for a permit; and whether a Memorandum of Understanding (“MOU”) between the parties also constituted a permit.  The SJC found that (1) with regard to segmentation, sufficient facts were made by the plaintiffs to support a claim (but ultimately the court reversed and remanded to the Superior Court for further proceedings); and (2) the MOU was not a permit but rather was an agreement that was further contingent on an Advisory Opinion regarding MEPA compliance from the Secretary.

THE TAKEAWAY: Citizen groups still have grounds to contest the MEPA process; while the Secretary of Environmental Affairs (under MEPA) will not lightly be called upon to defend or overturn its decision as to “potential damage to the environment,” as long as the Court perceives the Secretary not to be “a person causing the environmental damage.”

MOLD AT CONDO: In Denise Doherty v. Admiral’s Flagship Condominium Trust & others, the Appeals Court ruled on a denial by a lower court decision on relief from the effects of toxic mold on a condominium unit owner, in a case of first impression.  The homeowner experienced water damage and infiltration in her unit as a result of a leak in the roof that was improperly repaired and subsequently spawned hazardous toxic mold.  The unit owner brought suit in tort against the condominium trust, the management company, and the company that handled the repairs, on counts of negligence, nuisance and trespass, as well as a third-party action against the repair company.  The defendants claimed the three-year statute of limitations had tolled which barred the unit owner from recovery; and also claimed that the unit owner did not have a third party beneficiary claim against the management and repair companies.  The Court found that the discovery rule prevented the statute of limitations from running until the plaintiff found “hazardous mold at unsafe levels in the unit,” and therefore held that “the plaintiff’s claims should not have been dismissed, as the discovery rule applies to the negligence allegations” in her complaint.  The Court’s decision matched findings in other jurisdictions.  With regard to the trespass and nuisance claims, the Court made findings similar to those in other environmental cases (Tageta Corp. v. Varian Assoc., Inc., 436 Mass. 217 231 (2002) citing Carpenter v. Texaco, Inc., 419 Mass. 581, 583 (1995)), that “an action for a continuing nuisance allows a plaintiff whose claim otherwise would be untimely to sue where its property rights are invaded from time to time because of a repeated or recurring wrongs, resulting in new harm to the property on each occasion.”  Further, it stated that the plaintiff had alleged sufficient facts to support claims of trespass and nuisance from leaks during the statutory period.  See, Carpenter, at 583.   With regard to the breach of contract claims, the Court found that the lower court’s dismissal was appropriate because the plaintiff was not an intended beneficiary, as a contract does not confer third-party beneficiary status unless the language and circumstances show that the parties are “clearly and definitely intended to benefit from the promised performance.”

THE TAKE AWAY: The clock does not start ticking on the statute of limitations until the injured plaintiff has actual information that hazardous mold has been produced, not merely that it could cause damage.  The decision moves the bar in favor of the plaintiff and against the entity causing the damage or charged with repairing the damage.

Susan A. Bernstein, Attorney at Law, concentrating in environmental, land use, real estate law; permitting and zoning matters. Attorney Bernstein serves clients throughout Massachusetts with an office located in Needham, MA. (more)

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Highlights

• C. 21E and CERCLA Hazardous Waste
• Environmental Due Diligence
• Waterfront Permitting
• Wetlands and c. 91
• Zoning and Planning Boards
• Condominium Formation
• DEP Negotiations
• Board of Health
• Land Use