Conservation Comm'n of Norton v. Pesa

• Decision Date: 31 August 2021
• Docket Number: SJC-13058
• Citation: 173 N.E.3d 333,488 Mass. 325
• Parties: CONSERVATION COMMISSION OF NORTON v. Robert PESA & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

488 Mass. 325

173 N.E.3d 333

CONSERVATION COMMISSION OF NORTON

v.Robert PESA ¹ & another.²

SJC-13058

Supreme Judicial Court of Massachusetts, Bristol.

Argued April 9, 2021.

Decided August 31, 2021.

A. Alexander Weisheit, Hingham, for the plaintiff.

David S. Frankel, Special Assistant Attorney General, for the Commonwealth.

Donald P. Nagle, Plymouth, for the defendants.

Donald D. Cooper, Boston, for Massachusetts Association of Conservation Commissions, amicus curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

WENDLANDT, J.

The Wetlands Protection Act, G. L. c. 131, § 40 (act), generally prohibits removing, filling, dredging, or altering wetlands without an order of conditions from a local conservation commission or issuing authority. The act also provides that "[a]ny person" who acquires property on which work has been done in violation of the act shall restore the property to its original or permitted condition; but the act limits the time period during which an enforcement action against "such person" may be brought. See G. L. c. 131, § 40. Specifically, the act provides that any action must be brought within three years of the recording of the deed (or date of death) by which "such person" acquires the property. See id.

In this case, the conservation commission of Norton (commission) issued an enforcement order to owners of property on which unauthorized fill had been placed by a prior owner, directing the current owners to remove the fill. When the current owners neither challenged nor complied with the order, the commission brought an action against them in the Superior Court, seeking injunctive relief and civil penalties. A Superior Court judge construed the act as creating a statute of repose that prevents a conservation commission from bringing an enforcement action more than three years following the first transfer of ownership in the property after the asserted violation occurred. Because the current owners acquired title after this period, the judge denied the commission's motion for summary judgment, and granted the owners’ cross motion.

We agree with the judge that the act creates a statute of repose. The repose, however, does not run with the land; rather, the repose is personal. It requires the commission to commence an enforcement action within three years of the recording of the deed (or date of death) pursuant to which the new owner acquires the property. After that period, the commission may not commence an action against that owner for preexisting violations. Once the property again changes hands, however, the act permits the commission to commence an action against the subsequent owner, so long as it does so within three years of the triggering event -- the recording of the deed or date of death by which title was acquired. Accordingly, because the commission commenced this enforcement action against the current owners within three years of the recording of the deed by which they acquired title, the act does not bar the action. The order granting summary judgment for the owners therefore must be vacated and set aside, and the matter remanded to the Superior Court for further proceedings consistent with this opinion.³

1. Background. a. Facts. We recite the material, undisputed facts from the record. See Arias-Villano v. Chang & Sons Enters., Inc., 481 Mass. 625, 626, 118 N.E.3d 835 (2019).

John Teixeira purchased a 2.3-acre property in the town of Norton (town) in 1967. In 1979, he filed a notice of intent with the commission, in which he proposed to construct a store, install a sanitation system, and place fill for a parking lot on the property. The commission determined, after a public hearing, that a freshwater meadow adjacent to the proposed fill site was significant to the public's interest in flood control and storm damage prevention, but approved the project and issued an order of conditions, allowing the project with the specific plan that had been submitted.

In 1984, the commission sent a letter to John Teixeira asserting that the fill limits delineated in the approved plan "appear[ed] to have been exceeded" and asking him to submit an updated "sketch" of the fill locations.⁴ In 1996, he deeded the property to himself and his wife, Ann Teixeira, as tenants by the entirety; he died in 2006.

In 2014, Ann Teixeira decided to sell the property to the defendants, Robert and Annabella Pesa. An attorney working on the closing contacted the commission to request a "certificate of compliance," which the commission was required to grant if the completed work on the property complied with the order of conditions issued to John Teixeira in 1979. See G. L. c. 131, § 40. In conjunction with that request, an "as-built plan" was submitted on behalf of Ann Teixeira, delineating the areas of the property that had been filled. The plan indicated that fill had been placed to the south of the approved work limit set forth in the order of conditions; notations on the plan stated that it was not clear whether that area had contained wetlands. A commission conservation agent also conducted a site inspection and reviewed historical aerial photographs of the property. The commission wrote to Ann Teixeira in October 2014, explaining that there were 11,000 square feet of excess, unauthorized fill on the property and that, between 1995 and 2004, 2005 and 2006, and 2006 and 2013, vegetation had been cleared beyond the approved work limit; the commission requested that the unauthorized fill be removed.⁵

The defendants, then prospective buyers of the property, wrote to the commission in November 2014, stating, "As the buyers, it is in our best interest [to] be involved in any changes to the property, to ensure that our investment meets our needs." They asked the commission to give them time to contact engineering firms to solicit bids "for the removal of material as identified in the [o]rder of [c]onditions" and to provide a solution "that best meets the regulations as set forth in the [act]." In December 2014, the defendants, as trustees of the Pesa 2000 Realty Trust, purchased the property.

Over the following months, the defendants and the commission engaged in discussions regarding the property and the order of conditions. In June 2015, the defendants proposed to complete certain work enumerated in the 1979 order of conditions that was not yet completed, such as installing a perforated dry well and siltation control to comply with the commission's original request to Teixeira to provide a final stabilization plan. The defendants did not suggest that they would undertake to remove any excess fill, which they asserted was not necessary. At an August 2015 public meeting, defendant Robert Pesa again indicated that he did not intend to remove fill from the property. The commission voted at the meeting to proceed with issuing an enforcement order. The defendants responded by letter the following day, disputing "that there is any valid or beneficial reason to remove the 35-year-old fill and disrupt the surrounding wetlands, vegetation, and thriving businesses on the property."

On August 25, 2015, an enforcement order issued stating that, in violation of the 1979 order of conditions, approximately 13,000 square feet of unauthorized fill had been placed on the property between 1980 and 1984, and vegetation had been cleared beyond the approved work limit between 1995 and 2004. The enforcement order directed the defendants to cease all activities in the affected areas and to restore the affected areas to their "original condition." The defendants did not comply with the order and did not commence legal action to challenge it.

b. Superior Court proceedings. In June 2016, the commission commenced an action in the Superior Court seeking injunctive relief and civil penalties, in the form of fines, as a result of the defendants’ failure to comply with the enforcement order, in violation of G. L. c. 131, § 40. In December 2018, the parties filed cross motions for summary judgment. In June 2020, a Superior Court judge granted the defendants’ motion for summary judgment and denied the commission's.

The commission's complaint included separate claims regarding the excess fill and the unauthorized clearing of vegetation.⁶ With respect to the latter, the judge determined that because the clearing was a single act and not a continuing violation, see Worcester v. Gencarelli, 34 Mass. App. Ct. 907, 908, 607 N.E.2d 748 (1993), and because the commission alleged that clearing had last been undertaken in 2004, the commission's enforcement order as to the clearing was barred by the two-year statute of limitations, see G. L. c. 131, § 91. Before us, the commission does not challenge this determination.

With respect to the unauthorized fill, the judge determined that because G. L. c. 131, § 40, contains a statute of repose, the commission's action was prohibited. He viewed the provision as requiring the commission to bring an enforcement action within three years of the first transfer of ownership in the property occurring after the unauthorized filling originally took place. Because the unauthorized filling occurred no later than 1984, when John Teixeira owned the property, and because he transferred the property to himself and his wife in 1996,⁷ the judge determined that the statute of repose barred enforcement actions commencing after 1999, and thus denied the commission's motion for summary judgment. The commission appealed from this portion of the decision, and we transferred the matter to this court on our own motion.

2. Discussion. We review a decision on a motion for summary judgment de novo. See Boss v. Leverett, 484 Mass. 553, 556, 142 N.E.3d 1113 (2020). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See id. ; Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). Because the parties fi...