Cassidy v. Commissioner of Environmental Management

• Decision Date: 06 April 1979
• Citation: 7 Mass.App.Ct. 898,387 N.E.2d 1158
• Parties: Terrence H. CASSIDY v. COMMISSIONER OF ENVIRONMENTAL MANAGEMENT et al. (and a companion case).
• Court: Appeals Court of Massachusetts

Page 1158

387 N.E.2d 1158

7 Mass.App.Ct. 898

Terrence H. CASSIDY

v.

COMMISSIONER OF ENVIRONMENTAL MANAGEMENT et al. (and a companion case).

Appeals Court of Massachusetts, Norfolk.

Argued Oct. 16, 1978.

Decided April 6, 1979.

John S. Bottomly, Millis, for plaintiffs.

Francis S. Wright, Asst. Atty. Gen., for Commissioner of the Dept. of Environmental Management.

Alan Wilson, Gloucester, for Conservation Law Foundation of New England, Inc. and others, interveners.

Harvey Weiner, Town Counsel, Boston, for Charles Levine and another.

Winslow H. MacDonald and David J. Andrews, Waltham, for The Massachusetts Farm Bureau Federation, Inc., amicus curiae, submitted a brief.

Michael P. Last, Birge Albright and Harland M. Doliner, for The Boston University Environmental Law Society, amicus curiae, submitted a brief.

Before KEVILLE, ARMSTRONG and BROWN, JJ.

RESCRIPT.

The plaintiffs, owners of farms in Millis, brought two actions pursuant to the fifth paragraph of G.L. c. 131, § 40A (inserted by St.1972, c. 782), to determine whether an order regulating the use of inland wetlands in Millis, which was issued by the defendant Commissioner of Environmental Management (commissioner) under authority granted by § 40A, and which the defendant selectmen of Millis voted to approve, so restricts the plaintiffs' use of their properties as to constitute the equivalent of a taking without compensation. The two cases were consolidated. A judge of the Superior Court allowed the plaintiffs' motions for preliminary injunctions enjoining the defendants from enforcing the order issued by the defendant commissioner. Pursuant to the first paragraph of G.L. c. 231, § 118 (inserted by St.1973, c. 1114, § 202), the commissioner petitioned a single justice of the Appeals Court for relief from the preliminary injunctions. The single justice denied relief without prejudice but invited the parties to submit all issues involved in the case to a panel of the Appeals Court by way of a report under Appeals Court Rule 2:01, as amended, 3 Mass.App. 805 (1975). Each side submitted to the single justice a suggested list of questions to be reserved and reported by him; the parties also submitted an "Agreed Statement of Facts" which they stipulated "shall constitute the statement of material facts for purposes of the Appeals Court's determination of reported issues." The single justice reserved and reported eight questions.

Generally a single justice of this court may report a case to the full Appeals Court in the same circumstances in which a single justice of the Supreme Judicial Court may report a case to the full bench of the Supreme Judicial Court. Rule 2:01 of the Appeals Court, as amended, 3 Mass.App. 805 (1975). Foreign Auto Import, Inc. v. Renault Northeast, Inc., 367 Mass. 464, 468, 326 N.E.2d 888 (1975); Westinghouse Elec. Supply Co. v. Healy Corp.,5 Mass.App. ---, --- - --- ^A, 359 N.E.2d 634 (1977). But see Fadden v. Commonwealth, --- Mass. ---, --- ^B, 382 N.E.2d 1054 (1978) discussing the broad authority conferred upon single justices of the Supreme Judicial Court as a result of that court's exclusive power of general superintendence. We therefore look to G.L. c. 211, § 6 (see Terry v. Brightman, 129 Mass. 535, 537 (1880); Riverbank Improvement Co. v. Chapman, 224 Mass. 424, 425, 113 N.E. 215 (1916); Liggett Drug Co. v. License Commrs. of No. Adams, 296 Mass. 41, 44, 4 N.E.2d 628 (1936)), and G.L. c. 231, § 112 (inserted by St.1973, c. 1114, § 200), to determine whether the report is properly before us. Rule 64 of the Massachusetts Rules of Civil Procedure, 365 Mass. 831-832 (1974), does not contain any additional authority to report a case not set forth in G.L. c. 211, § 6, or G.L. c. 231, § 112; the new rules are not to be "construed to extend or limit the jurisdiction of the courts." Mass.R.Civ.P. 82, 365 Mass. 843 (1974). Wood v. Wood, 369 Mass. 665, 668, 342 N.E.2d 712 (1976).

Neither G.L. c. 211, § 6, nor G.L. c. 231, § 112, empower a single justice to report to the full court matters which are not before him for decision but are before some other justice. See Phillips v. Soule, 6 Allen 150, 151 (1863); Newburyport Institution for Savings v. Coffin, 189 Mass. 74, 75, 75 N.E. 81 (1905); Berenson v. London & Lancashire Fire Ins. Co.,201 Mass. 172, 173, 87 N.E. 687 (1909); John Gilbert Jr. Co. v. C. M. Fauci Co., 309 Mass. 271, 273, 34 N.E.2d 685 (1941); Bendsley v. Commissioner of Pub. Safety, 328...