Lemansky v. Conservation Commn. of Town of Auburn
| Decision Date | 26 March 2010 |
| Docket Number | 061555D |
| Parties | Seth Lemansky et al. v. Conservation Commission of the Town of Auburn No. 110971 |
| Court | Massachusetts Superior Court |
Caption Date: March 24, 2010
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Tucker, Richard T., J.
Plaintiffs Seth Lemansky, Myles Lemansky and Ross Lemansky (hereinafter "Lemanskys") seek in their complaint relief in the nature of certiorari against the Town of Auburn and its Conservation Commission. Specifically, Lemanskys seek to reverse and vacate an Enforcement Order issued by the Town of Auburn Conservation Commission. In Count II of Lemanskys' complaint declaratory judgment is sought seeking a determination that the 1978 definitions of the Department of Environmental Quality Engineering are not applicable to the current Town of Auburn Wetland Protection By-law; that the Conservation Commission had no authority to issue its Enforcement Order; and that the Conservation Commission's reference to subsequently amended definitions renders its Enforcement Order void for vagueness.
Before the Court at this time is the defendant's motion to dismiss alleging that Lemansky's action is not properly before the Court procedurally or jurisdictionally.
After review of the memoranda of counsel, the pleadings, exhibits and having heard oral argument, I find and rule as follows.
A motion to dismiss, by its very nature, "argues that the complaint fails to state a claim upon which relief can be granted." Jarosz v. Palmer, 436 Mass. 526, 529 (2002) quoting J.W. Smith & H.B. Zobel, Rules Practice §12.16 (1974). In considering such a motion the allegations of the Complaint, as well as such inferences as may be drawn therefrom in the plaintiff's favor are to be taken as true. Nader v. Citron, 372 Mass. 96, 98 (1977). In pleading his case, however, a plaintiff may not assert legal conclusions cast in the form of factual allegations. Schaer v. Brandeis University, 432 Mass. 474, 477 (2000). Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) quoting Bell A. Corp. v. Twombly, 127 S.Ct 1955, 1964-65 (2007). In short, a Complaint must contain, to prevent a motion to dismiss, "allegations plausibly suggesting (not merely consistent with) an entitlement to relief." Id.
Lemansky owns an open, undeveloped lot at 253 Prospect Street, Auburn, Massachusetts. Over a period of time adjacent lots number 249 and 251 Prospect Street were cleared of trees and, under some arrangement with those lot owners, the trees harvested were transferred by vehicle to Lemansky's lot at 253 Prospect Street where they currently remain stored.
On or about June 20, 2006 the Conservation Commission of the Town of Auburn (Conservation Commission) issued an Enforcement Order to Lemansky which required Lemansky to "immediately cease and desist from any activity affecting the Buffer Zone and/or resource areas." The specified activity ordered to be discontinued was "crossing of a wetland without proper permits." That Enforcement Order states that it is issued pursuant to the Massachusetts Wetlands Protection Act, M.G.L.c. 131, §40. It also relates that "an Enforcement Order issued by a Conservation Commission cannot be appealed to the Department of Environmental Protection, but may be filed in Superior Court."
On August 10, 2006, for reasons which are not yet fully apparent, the Conservation Commission issued a second Enforcement Order. This Enforcement Order utilized the same form as its prior order except references to the Massachusetts Wetlands Protection Act, M.G.L.c. 131, §40 and the Department of Environmental Protection were excised and in their place, in handwritten form, the name "Auburn Conservation Commission" was inserted. Additionally, it was indicated throughout that the Enforcement Order was for violation not of the Wetlands Protection Act but of the Town of Auburn's Wetlands By-law. Lemanskys were similarly ordered to cease and desist from "crossing of a wetland without proper permits." This order also contained the same language as the former in regard to not being appealable to the Department of Environmental Protection, and that appeals must be made directly to the Superior Court.
Defendants now argue, despite the express language of the Enforcement Order, that plaintiffs' claim cannot be brought in the Superior Court, and should be dismissed for plaintiffs having failed to pursue and exhaust administrative remedies presumably through appeal to the Department of Environmental Protection.
Defendants move to dismiss arguing that plaintiffs have failed to exhaust their administrative remedies and therefore plaintiffs' action is procedurally and jurisdictionally deficient. Additionally defendants move that enforcement actions of the Conservation Commission are administrative actions, not judicial or quasi judicial in nature, and therefore are not open to review on by an action in the nature of certiorari.
Defendants have set forth the appellate avenues that must be followed under Enforcement Orders. Having stated that an appeal of the order might only be taken to the Superior Court, it cannot be heard now to state that an appeal should have and must have proceeded to an administrative venue. This Court rules that Conservation Commission is estopped from refuting the express language of its Enforcement Orders that state that the order "cannot be appealed to the Department of Environmental Protection, but may be filed in Superior Court."
Review of civil actions by complaint in the nature of certiorari is available if the...
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