Conservation Comm'n of Falmouth v. Pacheco, P-777

CourtAppeals Court of Massachusetts
Citation733 N.E.2d 127,49 Mass. App. Ct. 737
Docket NumberP-777
Parties(Mass.App.Ct. 2000) CONSERVATION COMMISSION OF FALMOUTH, vs. ROBERT B. PACHECO. No.: 98- . Argued:
Decision Date07 February 2000

Robert B. Fredericks for the defendant.

Edward J. Dewitt (Frank K. Duffy, Jr., Town Counsel, with him) for the plaintiff.

Present: Laurence, Smith, & Gillerman, JJ.


For almost a decade the appellant, Robert B. Pacheco, has resisted the Falmouth conservation commission's attempt to compel him to rectify what the commission deemed his unauthorized 1990 filling of a "wet spot" on his land lying within the buffer zone to a wetland, in asserted violation of the State Wetlands Protection Act (G. L. c. 131, 40) and the wetland protection by-law of the town of Falmouth.1 Despite periods of apparent acquiescence to the commission's orders, Pacheco has succeeded in doing essentially nothing, beyond the shuffling of papers, in response to the commission's almost preternaturally patient efforts to secure his compliance.

Pacheco now faces a mandatory injunction to do the evaded work, entered by a Superior Court judge in response to the commission's motion for summary judgment on its long-deferred complaint for enforcement of its order to restore the disturbed area. On this appeal he admits his noncompliance but attempts to justify it by reiterating a position he unsuccessfully took before both the commission and the Superior Court: namely, that the commission lacks "jurisdiction" over his property. The continued incantation of this contention finds no more success here, and we affirm the judge's order.2

In sum, this is not a case implicating the doctrine on which Pacheco exclusively relies -- that the issue of "subject matter jurisdiction" is nonwaivable and can be raised at any point in a proceeding. That undeniably fundamental principle applies only when the jurisdictional issue has not been previously addressed and when "it is first raised," at whatever stage of litigation, by either the parties or the trial or appellate court on its own motion. Litton Bus. Sys., Inc. v. Commissioner of Rev., 383 Mass. 619, 622 (1981) (emphasis added). See Cheney v. Boston & Me. R.R., 227 Mass. 336, 337-338 (1917); Morse v. O'Hara, 247 Mass. 183, 185 (1924); Assessors of Boston v. Suffolk Law Sch., 295 Mass. 489, 495 (1936); Cohn v. Cohn, 310 Mass. 126, 129 (1941); Patry v. Liberty Mobilhome Sales, Inc., 15 Mass. App. Ct. 701, 704 (1983); Flynn v. Contributory Retirement Appeal Bd., 17 Mass. App. Ct. 668, 670 (1984).

Here, Pacheco challenged the commission's "jurisdiction" from the beginning, by claiming that the locus was too small and isolated to fall within wetlands protection. The commission explicitly addressed his objection in its 1990 order of conditions. After hearing evidence and conducting an on-site field inspection, it made specific findings supporting the validity of its exercise of authority (including findings that Pacheco had improperly minimized the size of the locus in his application, that the locus was significant for groundwater supply and flood control purposes, that it contained or was proximate to irrefutable wetlands vegetation, and that it was connected by an intermittent stream channel to a nearby cedar swamp). See Pacheco's admissions in note 1, supra.3 The commission's response to Pacheco's jurisdictional objection was proper. See East Chop Tennis Club v. Massachusetts Commn. Against Discrimination, 364 Mass. 444, 452 (1973); Wilczewski v. Commissioner of the Dept. of Envtl. Quality Engr., 404 Mass. 787, 793-794 (1989) (agency faced with contention that it is acting beyond its jurisdiction has the right and should have the opportunity to ascertain the facts and determine the jurisdictional issue for itself); Bourne v. Austin, 19 Mass. App. Ct. 738, 744 (1985) ("the applicability of the [wetlands protection] statute should be determined in the first instance by the local conservation commissions . . .").

Pacheco did not embrace the opportunity afforded him to take a timely appeal to the Department of Environmental Protection (DEP) for a de novo review of the commission's action and an adjudicatory hearing to contest the commission's findings and assertion of authority over the locus (see 310 Code Mass. Regs. 10.05[7][a] & [j] [1989]). Nor did he (as he could have, had he requested such DEP action) seek judicial review under G. L. c. 30A, 14, of any adverse agency determination.4 Having forgone his opportunity to do so, he is precluded from relitigating his jurisdictional contention. Stowe v. Bologna, 32 Mass. App. Ct. 612, 615, S.C., 415 Mass. 20 (1993). Board of Appeals of Rockport v. DeCarolis, 32 Mass. App. Ct. 348, 352 (1992). See Angel v. Bullington, 330 U.S. 183, 189 (1947); Durfee v. Duke, 375 U.S. 106, 112 (1963); In re Bulldog Trucking, Inc., 147 F.3d 347, 352-353 (4th Cir. 1998); Department of Pub. Welfare v. Billerica, 350 Mass. 56, 57 (1966); Tuper v. North Adams Ambulance Servs., Inc., 428 Mass. 132, 135 (1998); Sarin v. Ochsner, 48 Mass. App. Ct. 421, 423-424 (2000); Restatement (Second) of Judgments 12, comment c & illustration 3 to comment d (1982); 18 Wright, Miller & Cooper, Federal Practice and Procedure 4435 (1981 & Supp. 2000).5

We harbor no doubt that Pacheco's jurisdictional argument was no longer viable after his failure to exhaust his administrative and judicial remedies with respect to the commission's first order of conditions. Even had we any, however, the course of subsequent proceedings would remove it. On December 23, 1993, the commission issued an enforcement order informing Pacheco that the 1990 order of conditions had expired, that another on-site inspection revealed that his violation at the locus still existed, and that fines would be imposed daily until he filed a new notice of intent. Pacheco filed such a new notice on January 24, 1994, proposing to do the same work as described in the 1990 notice. A hearing on the new notice was held on February 16, 1994, resulting in the commission's issuance of a new order of conditions on February 24, 1994. That new order contained the same findings and mandates as its 1990 predecessor, but added as reasons for requiring the work "prevention of pollution" and "protection of wildlife habitat" and also imposed a deadline of May 30, 1994, for its completion.

On May 31, 1994, Pacheco, having done nothing in response to the new order, filed a complaint in Superior Court seeking a preliminary injunction to restrain the commission from enforcing its order (and fines) against him. In his "verified complaint" Pacheco did not contest the commission's jurisdiction but merely noted his "dispute[]" with the commission's position that the "wet pocket" and the stream channel connected to other wetlands "had visible water and hydraulic soil conditions." The gravamen of the complaint, however, was the allegation that certain special conditions imposed by the commission in its order were inconsistent with the DEP's mandated general conditions and required "prohibitive[ly]" expensive work to complete. After a hearing, injunctive relief was denied Pacheco on June 8, 1994. He took no further steps to prosecute his action, and it was dismissed with prejudice by stipulation in 1995.6

Pacheco did not appeal the commission's new order of conditions to the DEP (or, as he could have, proceeded pursuant to G. L. c. 249, 4, see note 4, supra) but simply continued to ignore it. On February 14, 1995, the commission finally issued an enforcement order. On February 21, 1995, Pacheco filed a request with the DEP for a superseding order of conditions -- a procedure not authorized by the governing statute or regulations -- which was promptly rejected by the DEP. The commission, through town counsel, provided him with yet another locus poenitentiae before becoming subject to enforcement, by letter dated July 27, 1995, but his inaction continued.

On October 17, 1995, the commission's instant enforcement complaint was filed, for injunctive relief to compel Pacheco's long-withheld compliance. On December 8, 1995, the DEP notified Pacheco of its awareness of his continued wetlands violations and his noncompliance with the commission's prior orders and threatened its own enforcement proceeding unless restoration work was completed within four months, observing in passing the commission's statutory and regulatory jurisdiction with respect to the order it sought to enforce. Pacheco failed to respond to the DEP notification or meet the DEP deadline. Nor did he plead "lack of subject matter jurisdiction" in his answer to the commission's complaint or in any motion, instead raising the issue at the June, 1997, hearing on the commission's summary judgment motion for injunctive enforcement.

Against this procedural background, Pacheco must be precluded from relitigating the jurisdictional issue which he raised, lost, and twice failed to appeal; and which on a third occasion (his injunction suit) he waived by failing to advance it, actually acquiescing in the commission's assertion of jurisdiction over the locus (complaining only of certain conditions imposed) and then dismissing the suit with prejudice. See Tuite & Sons, Inc. v. Shawmut Bank, N.A., 43 Mass. App. Ct. 751, 754-755 (1997) (stipulated dismissal with prejudice is an adjudication on the merits and has same res judicata effect).7

On this record, the judge was amply justified, when rejecting Pacheco's jurisdictional objection, in declaring "that ship has sailed."8 Since there was no genuine issue of material fact before the judge regarding either jurisdiction or Pacheco's (conceded) failure to comply with the 1994 order of conditions, the judge correctly ordered summary judgment and injunctive relief for the commission on its complaint for enforcement.

The judgment is affirmed. The commission has requested "just costs and damages" in connection with this appeal. Having...

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