Conte v. Framingham, 063701
| Decision Date | 26 November 2007 |
| Docket Number | 063701 |
| Citation | 2007 MBA 541 |
| Parties | Biagio Conte, M.D. v. Town of Framingham et al.[1] |
| Court | Massachusetts Superior Court |
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Gershengorn, Wendie I., J.
The plaintiff, Dr. Biagio Conte (Conte) filed an action in the nature of certiorari pursuant to G.L.c. 249, §4, seeking review of the decision of the Framingham Conservation Commission (Commission) to issue a permit approving the plan of defendant Winch Pond Trust (Trust) to build a bridge roadway, and associated infrastructure (the project) within wetland resource areas and buffer zones on property owned by the Trust. The matter is before the court on the parties' cross motions for judgment on the pleadings. For the following reasons, the plaintiff's motion is DENIED and the defendants' motion is ALLOWED.
Conte's property abuts a forty-nine-acre parcel of land in Framingham on which the Trust proposes to build a subdivision (the property). The Trust first filed a notice of intent to the Framingham Planning Board for approval of a definitive subdivision plan in 1999; the Board denied the plan, based in large part on the Trust's failure to obtain approval from the Commission for an access roadway that crossed wetlands on the property. The Trust then filed a notice of intent with the Commission to construct the project at issue, which consisted of the first 1500 linear feet of a subdivision roadway and all associated utilities and drainage structures. There followed several procedural exercises,[2] many revisions to the plan, and extended public hearings; on August 17, 2006, the Commission granted the permit under conditions designed to minimize and mitigate any potential impact to the wetlands and their value. Relevant to the issue at hand were (1) a prohibition in perpetuity against any alteration of any wetlands on the property beyond those approved in the permit; and (2) a requirement that, prior to the commencement of any work on the project, the Trust obtain the Commission's approval for any work within its jurisdiction associated with any future subdivision on the property, the application for which must include delineation and confirmation of all wetland resource areas.
Conte contends that the Commission committed an error of law and acted arbitrarily and capriciously when it approved the project without a review of the proposed subdivision, as required by its own regulations. This error, Conte's argument goes, caused him manifest injustice whereby, as a result, the Commission was unable to assess the cumulative impacts of any subdivision on his property.
As a threshold matter, the court concludes that Conte lacks standing to bring an action in the nature of certiorari. Nonetheless, were the court to assume that Conte had standing, the court does not consider the actions of the Commission to be arbitrary or capricious, or to constitute an error of law. Finally, even if the Commission did commit an error of law, Conte has not shown that the Commission's order resulted in any substantial injury or manifest injustice to him. Conte's claim thus fails in all material respects.
I. Standard of review
In reviewing an action in the nature of certiorari, the court is "limited to correcting substantial errors of law apparent on the record adversely affecting material rights." FIC Homes of Blackstone, Inc. v. Conservation Comm'n. of Blackstone, 41 Mass.App.Ct. 681, 684 (1996) (internal quotations and citations omitted). The standard of review varies "according to the nature of the action for which review is sought." Forsyth Sch. for Dental Hygienists v. Board of Registration in Dentistry, 404 Mass 205, 208 (1989). The appealing party bears the burden of demonstrating the invalidity of the administrative agency's decision. Merisme v. Board of Appeals on Motor Vehicle Liab. Policies and Bonds, 27 Mass.App.Ct. 470, 474 (1989). Generally, a reviewing court gives substantial deference to an agency's findings of fact and interpretation of its regulations, Conservation Comm'n of Falmouth v. Pacheco, 49 Mass.App.Ct. 737, 739 n.3 (2000), and accords "due weight to the experience and specialized competence of the agency." Arone v. Department of Social Servs., 43 Mass.App.Ct. 33, 34 (1997).
2. Standing pursuant to G.L.c. 249, §4
In the absence of a provision for judicial review of an agency decision, an aggrieved person may seek relief in a civil action pursuant to G.L.c. 249, §4. Bermant v. Board of Selectmen of Belchertown, 425 Mass. 400, 403-04 (1997). "The purpose of the certiorari procedure is to provide a remedy where none would otherwise exist." Cumberland Farms v. Planning Bd. of Bourne, 56 Mass.App.Ct. 605, 607 (2002). "The requisite elements for availability of certiorari are (1) a judicial or quasi judicial proceeding (2) from which there is no other reasonably adequate remedy (3) to correct substantial error of law apparent in the record (4) that has resulted in manifest injustice to the plaintiff..." Board of Retirement v. Woodward, 446 Mass. 698, 703 (2006). The question of standing is one of critical significance. Perella v. Massachusetts Turnpike Auth., 55 Mass.App.Ct. 537, 538 (2002).[3]
Massachusetts decisional law has established that an action in the nature of certiorari is "the appropriate means of review by applicants dissatisfied with a local conservation commission's order, under a wetlands by-law, that prevents or restricts building on the applicant's land." Friedman v. Conservation Comm'n of Edgartown, 62 Mass.App.Ct. 539, 542 (2004). Although typically judicial review is sought by an applicant landowner dissatisfied by the commission's decision, review in the nature of certiorari is also available to those persons, including abutters, "who can establish that they suffered injury to a protected legal interest." Id. at 542-43. Simply being abutters, however, is not enough to confer standing absent a showing that "they have suffered an injury different in nature and magnitude from that of the general public." Id. at 543.[4]
"It is the general rule that resort cannot be had to certiorari unless the action of the tribunal of which review is sought has resulted in substantial injury or manifest injustice to the petitioner." Fiske v. Selectmen of Hopkinton, 354 Mass. 269, 271 (1968). "To qualify as a 'person aggrieved' a person must allege substantial injury as a direct result of the action complained of." Harvard Law Sch. Coalition for Civ. Rights v. President & Fellows of Harvard Coll., 413 Mass. 66, 69 (1992).[5] The burden is on the petitioner to prove the jurisdictional prerequisite that he is an aggrieved person, Barvenik v. Board of Aldermen of Newton, 33 Mass.App.Ct. 129, 131-32 (1992); he must "provide specific evidence demonstrating a reasonable likelihood that the granting of a... permit will result, if not in a diminution in the value of his property, at least in his property or legal rights being more adversely affected by the activity authorized by the permit..." Id. at 133. Injuries that are speculative, remote, hypothetical, or indirect will not be considered sufficient to confer standing, Friedman, 62 Mass.App.Ct. at 545; the injury must be a direct consequence of the complained action. Put another way, in order to have standing, Conte must show that the challenged action caused his injury. Ginther v. Commissioner of Ins., 427 Mass. 319, 322-23 (1998).
Conte has provided no evidence that his land is or would be adversely affected by the construction of the bridge. To the extent that he argues that his property would be harmed by any proposed subdivision, this argument fails in two respects. First, judicial review is limited to the record before the administrative agency that made the decision, Board of Selectmen of Oxford v. Civil Serv. Comm'n, 37 Mass.App.Ct. 587, 588 n.4 (1994); this court therefore may not consider the affidavits dated August 21, 2007, from Richard Westcott, P.E. and Conte, where these were not before the Commission.[6] See also Police Commissioner of Boston v. Robinson, 47 Mass.App.Ct. 767, 775 (1999) () (internal quotations and citations omitted); Durbin v. Board of Selectmen of Kingston, 62 Mass.App.Ct. 1, 9 (2004) ().
Furthermore, even if a plan for the subdivision was before the Commission, pursuant to Section IV(2)(a) of the Regulations,[7] there is no regulatory requirement that the plan include proposed activities and their effect on resource areas, and certainly no process by which the Commission can approve (or disapprove) the plan. Until such time as the Commission has issued a permit for the subdivision, there is no case or controversy and thus the issue is not ripe for judicial review. See Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967); Ernst & Young v. Depositors Economic Protection, 45 F.3d 530, 536 (1st Cir. 1995) (); Boothroyd v. Zoning Bd., 449 Mass. 333, 341 n.14 (2007); Lakeside Builders v. Planning Board of Franklin, 56 Mass.App.Ct. 842, 849 (2002) ().
3. Violation of the Framingham Wetlands Regulations
The Framingham Wetlands Protection Regulations (Regulations) were promulgated pursuant to the Framingham...
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