Padden v. West Boylston

• Decision Date: 26 July 2005
• Docket Number: No. 04-P-987.,04-P-987.
• Citation: 831 N.E.2d 927,64 Mass. App. Ct. 120
• Parties: Carolyn PADDEN & others<SMALL><SUP>1</SUP></SMALL> v. WEST BOYLSTON & others<SMALL><SUP>2</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

831 N.E.2d 927

64 Mass. App. Ct. 120

Carolyn PADDEN & others¹ v. WEST BOYLSTON & others²

No. 04-P-987.

Appeals Court of Massachusetts, Worcester.

Argued November 5, 2004.

Decided July 26, 2005.

COPYRIGHT MATERIAL OMITTED

Gregg J. Corbo, Boston, for the defendants.

M. Yvonne Gonzalez, Boston, for the plaintiffs.

Present: LENK, DUFFLY, & KANTROWITZ, JJ.

LENK, J.

Carolyn Padden and other individuals who own residences serviced by subsurface wastewater disposal systems (septic systems) in the town of West Boylston (town) brought suit against the town to challenge a mandatory sewer connection regulation that had been promulgated by the West Boylston board of health (board of health). The plaintiffs sought declaratory and injunctive relief on a preliminary and permanent basis. Their request for preliminary injunctive relief was consolidated with a jury-waived trial on the merits; the trial judge declared the regulation invalid and, in essence, permanently enjoined the town from enforcing the regulation. The town now appeals, claiming that the judge erred in declaring the regulation invalid because it is rationally related to the protection of public health and safety. We agree and vacate the judgment.

Background. The town is located on the western side of the Wachusett Reservoir, which supplies water to the greater Boston area through the Massachusetts Water Resource Authority (MWRA) and is managed and maintained by the Metropolitan District Commission (MDC).³

In the early 1990's, the MDC conducted and commissioned several studies of the watershed area, revealing significant water quality problems in the brook tributary to the reservoir. The studies recommended the development of a sewer system that would service certain areas of West Boylston generating wastewater that was not adequately serviced by septic systems. Additional studies of the watershed and of groundwater pollution were conducted through the late 1990's and into 2002, assessing whether property in certain areas of the town could be brought into compliance with Title 5 septic system regulations⁴ or would require connection to the sewer system.

At town meetings in October, 1995; May, 1997; and October, 1997, town residents voted to borrow money, assess betterments, establish a mechanism for collecting unpaid sewer fees, establish a board of sewer commissioners, and offer low interest loans for the upgrade of septic systems and sewer connections. By 2001, however, the nascent sewer system was encountering considerable financial difficulty.

Although the town's sewer system had initially been intended for use in areas where Title 5 compliance could not be achieved, the town, in May of 2002, sought to cast a wider net by adopting a by-law, pursuant to G.L. c. 40, § 21, requiring the owners of abutting properties generating wastewater to connect to the public sewer. Town residents, however, voted not to adopt the by-law at the May 20, 2002, annual town meeting. Two weeks later, the board of selectmen met to discuss the situation and, at that June 1, 2002, meeting, decided to meet with the board of health and draft for it a mandatory sewer connection regulation. Several such meetings thereafter took place.

A public hearing on the proposed board of health regulation took place on August 28, 2002, in which town residents voiced their concerns. Nonetheless, the board of health adopted the mandatory sewer connection regulation on September 25, 2002, to take effect on January 2, 2003.⁵

The plaintiff homeowners then brought this action seeking declaratory and injunctive relief. More specifically, they sought (1) an order that the town and the board of health cease enforcing the mandatory sewer connection regulation; (2) a declaration that the board of health had adopted the regulation based on impermissible criteria and without authority; (3) an order enjoining the town's selectmen from unlawfully interfering with the board of health in the future; and (4) a preliminary injunction enjoining enforcement of the regulation during the course of the litigation. Since the parties appeared to be in agreement on the essential facts, the judge ordered the trial of the action on the merits to be advanced and consolidated with the hearing of the application for preliminary injunctive relief pursuant to the provisions of Mass.R.Civ.P. 65(b)(2), 365 Mass. 833 (1974). After a jury-waived trial, the judge concluded that the challenged mandatory sewer connection regulation was unrelated to public health and safety; he accordingly declared it invalid and, in essence, permanently enjoined the board of health from enforcing it.

The town filed a notice of appeal on November 26, 2003. On December 18, 2003, it filed a motion to alter or amend, pursuant to Mass.R.Civ.P. 59(e), 365 Mass. 828 (1974), and a motion to stay the judgment pending appeal, pursuant to Mass.R.Civ.P. 62(c), 365 Mass. 830 (1974). Both motions were denied on March 8, 2004. On April 8, 2004, an "amended notice of appeal" was entered on the docket stating that the town was amending "the Notice of Appeals to the Appeals Court from the judgment of [the Superior Court] dated October 31, 2003 . . . to also include appeal of [the Superior Court's] March 8, 2004, denial of defendant's Motion to Alter or Amend and Motion for Stay Pending Appeal."

Compliance with Mass.R.A.P. 4(a). The plaintiffs contend that this appeal should be dismissed for failure to comply with Mass.R.A.P. 4(a),⁶ asserting that the April 8, 2004, amended notice of appeal was a nullity, as the underlying November 26, 2003, notice of appeal was extinguished when the town filed its December 18, 2003, motions. They argue that the town should have filed a new notice of appeal subsequent to the denial of its December 18, 2003, motions, but did not do so.⁷

Case law is clear that rule 4(a) "meant what it said viz., a premature notice of appeal `shall have no effect.'" Blackburn v. Blackburn, 22 Mass.App.Ct. 633, 634, 495 N.E.2d 900 (1986), quoting from Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). Appellate courts must "give unqualified effect to the language" of rule 4(a), which instructs that "an appeal founded on a notice of appeal filed prior to disposition of a postjudgment motion under Mass.R.Civ.P. 50(b), 52(b) or 59 is a nullity and shall be dismissed." Anthony v. Anthony, 21 Mass.App.Ct. 299, 302, 486 N.E.2d 773 (1985). The rule is premised on the "undesirability of having a case proceed along the appellate path on the basis of a judgment that might be modified. Such a state of affairs was, at best, disorderly, and at worst, it was likely to provoke mischief if a trial court and an appellate court possessed power to modify the same judgment." Finn v. McNeil, 23 Mass.App.Ct. 367, 369, 502 N.E.2d 557 (1987).

We are persuaded that the April 8, 2004, notice filed by the town was a new notice of appeal that satisfied the requirements of rule 4(a). Although the town might well have been more clear in the language it used (describing it as an "amended notice of appeal" rather than as a new notice of appeal), this linguistic shortcoming is not dispositive in the circumstances. See Lewis v. Emerson, 391 Mass. 517, 520, 462 N.E.2d 295 (1984) ("it is not fair to prevent the parties' exercise of . . . appellate rights on the basis of clerical niceties"). The town's April 8, 2004, notice clearly and expressly referenced the final judgments from which appeal was being taken, thereby putting the parties and the court on notice of the judgments from which the town appealed. We think it of particular importance that the April 8, 2004, notice was filed subsequent to the filing and denial of the December 18, 2003, motions. Contrast Blackburn v. Blackburn, supra at 634-635, 495 N.E.2d 900; Baxter v. Board of Appeals of Barnstable, 29 Mass.App.Ct. 993, 994, 562 N.E.2d 841 (1990); West Springfield v. Olympic Lounge, Inc., 45 Mass.App.Ct. 923, 923, 700 N.E.2d 1198 (1998).

Analysis. The mandatory sewer connection regulation adopted by the board of health "stands on the same footing as would a statute," and the reviewing court must make all rational presumptions in favor of its validity. Druzik v. Board of Health of Haverhill, 324 Mass. 129, 138, 85 N.E.2d 232 (1949). A party challenging such a regulation must prove that it "is illegal, arbitrary, or capricious," and must establish the "absence of any conceivable grounds upon which the [regulation] may be upheld." Massachusetts Fedn. of Teachers v. Board of Educ., 436 Mass. 763, 771, 767 N.E.2d 549 (2002), quoting from Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 722, 448 N.E.2d 367, cert. denied sub nom. Formaldehyde Inst., Inc. v. Frechette, 464 U.S. 936, 104 S.Ct. 345, 78 L.Ed.2d 312 (1983). The plaintiffs cannot meet this burden by "arguing [, as they do,] that the record does not affirmatively show facts that support the regulation." Ibid., quoting from Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762, 776, 407 N.E.2d 297 (1980). "Rather, `we must apply all rational presumptions in favor of the validity of the administrative action and not declare it void unless its provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate.'" Ibid., quoting from Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, 855, 364 N.E.2d 1202 (1977).

In reviewing the regulation, we are "not concerned whether there was substantial evidence in a record before the agency, but rather . . . whether, based solely on the record made in court, the adoption of the agency regulation was illegal, arbitrary, or capricious" (emphasis original). Tri-Nel Mgmt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 219-220, 741 N.E.2d 37 (2001), quoting from Massachusetts State Pharmaceutical Assn. v. Rate Setting Commn., 387 Mass. 122, 126, 438 N.E.2d 1072 (1982). We may consider "relevant information,...