Rosenfeld v. Board of Health of Chilmark

• Decision Date: 26 July 1989
• Docket Number: No. 88-P-931,88-P-931
• Citation: 541 N.E.2d 375,27 Mass.App.Ct. 621
• Parties: Michael ROSENFELD, et al. 1 v. BOARD OF HEALTH OF CHILMARK.
• Court: Appeals Court of Massachusetts

Page 375

541 N.E.2d 375

27 Mass.App.Ct. 621

Michael ROSENFELD, et al. ¹ v. BOARD OF HEALTH OF CHILMARK.

No. 88-P-931.

Appeals Court of Massachusetts,

Middlesex.

Argued May 9, 1989.

Decided July 26, 1989.

Richard A. Johnston, Boston, for plaintiffs.

Thomas B. Bracken, Boston, for defendant.

Before GREANEY, C.J., and DREBEN and WARNER, JJ.

DREBEN, Justice.

The plaintiffs, buyer and seller under a purchase and sale agreement of a parcel of oceanfront land on Martha's Vineyard, were denied a sewage disposal permit by the board of health of Chilmark (board). More than a year later, the plaintiffs filed a complaint seeking, among other things, declaratory relief and alleging constitutional violations by the board. The board moved to dismiss the complaint on the ground that the complaint was not timely filed. Their motion was allowed, and the plaintiffs appeal from the ensuing judgment.

The thrust of the board's argument is that, contrary to the required procedure set forth in 310 Code Mass.Regs. § 15.25 (1986), ² the complaint was not brought within thirty days of February 5, 1987, the date of the decision of the board. The plaintiffs, on the other hand, point to 310 Code Mass.Regs. § 11.09 (1986), ³ as indicating that the regulations do not prescribe a specific method or time period for judicial review. According to the plaintiffs, the gist of their complaint is that the board discriminated against them in rejecting their permit application, ⁴ while granting the applications of other permit seekers similarly situated; therefore, the entire action should be governed by the three-year statute of limitations for civil rights claims. We affirm the judgment of dismissal.

We summarize, occasionally quoting, the allegations of the complaint. In October, 1981, Buff, the owner of the parcel, applied for a permit for a proposed sewage disposal system. The board's regulations (which were stricter than the provisions of the State Environmental Code) required a minimum distance of 200 feet between any sewage facility and a domestic well. Although Buff's proposed system was only 110 feet from an on-site well and 192 feet from an off-site well, the board waived its 200-foot requirement and granted Buff a disposal works construction permit. Buff, however, delayed development of his parcel, and the permit lapsed in October, 1982.

Approximately three years later, Buff entered into a purchase and sale agreement with Rosenfeld. In August, 1986, Rosenfeld applied for a disposal permit showing the facility located in the same area as Buff's prior application. The distance between the proposed facility and the on-site well was approximately 102 feet and the distance from the off-site well was approximately 175 feet. In support of his application, Rosenfeld submitted to the board a report from a firm of environmental scientists stating that the proposed system met all the requirements of the State Environmental Code and that the system would not have an adverse effect on the environment. The board, "despite the absence of any basis to support denial," ⁵ on February 5, 1987, denied the application on the purported ground that Rosenfeld had failed to satisfy the requirements for a waiver of the 200-foot separation requirement.

Based on the foregoing allegations, the plaintiffs, in count I of their complaint, sought a declaration that the board's decision was not supported by substantial evidence and that they are entitled both to a waiver from the 200-foot separation requirement and a disposal works permit. In counts II and III, they sought relief in the nature of certiorari on the ground of "a substantial error of law, apparent on the record." After alleging that an abutter and, "upon information and belief, other property owners in the Town of Chilmark have obtained successive renewals of ... permits after submitting information equivalent to or less than that provided by Rosenfeld," they sought, in count IV, damages from the individual members of the board because their "intentional, arbitrary, and capricious refusal to grant Rosenfeld a ... permit constitutes a violation of both plaintiffs' substantive due process rights as protected by the Massachusetts and United States Constitutions and by G.L. c. 12, § 11I." Referring to 42 U.S.C. § 1983 (1982), they asserted in count V that the refusal of a permit constituted a violation of the plaintiffs' substantive due process rights under the Federal Constitution.

1. Claim for declaratory relief. "When a direct and distinct path of review is available," it is not appropriate to grant declaratory relief in the absence of special circumstances, particularly where the action seeks to circumvent the time period prescribed for a direct appeal. New England Milk Dealers Assn. v. Department of Food & Agriculture, 22 Mass.App.Ct. 705, 709, 497 N.E.2d 647 (1986). Goldman v. Planning Bd. of Burlington, 347 Mass. 320, 326, 197 N.E.2d 789 (1964). School Comm. of Franklin v. Commissioner of Educ., 395 Mass. 800, 807-808, 482 N.E.2d 796 (1985). The board says 310 Code Mass.Regs. § 15.25 (1986) is such a "direct and distinct" path of review. The plaintiffs deny its applicability.

We turn to 310 Code Mass.Regs. §§ 11.00 et seq. (1986) and to §§ 15.00 et seq. (1986). As authorized by G.L. c. 21A, § 13, these regulations were issued by the Department of Environmental Quality Engineering (DEQE) as the "State Environmental Code" (Code). The first part (§§ 11.00 et seq.), appearing under the heading "General Application and Administration Environmental Code, Title 1," sets no substantive standards. Among other things it permits local health authorities to adopt regulations "containing requirements stricter than those contained" in the Code (§ 11.02), provides for methods of inspection and enforcement, for hearings, for appeals, and for variances. ⁶ Title 1 also includes an appeal provision, § 11.09 set forth in note 3, supra. Sections 12.00-14.00 are reserved for future promulgation.

Sections 15.00 et seq. are entitled "Minimum Requirements for the Subsurface Disposal of Sanitary Sewage State Environmental Code, Title 5." Part I of Title 5 lists, under the heading "Part 1: Substantive Provisions," numerous requirements for septic tanks, leaching fields etc. and, in its preamble, recognizes that specific local conditions may require more stringent regulation to protect the public health and the environment. Under the heading "Part II Enforcement," the first section is entitled "s 15.20 Variance," and the section permits the board of health to vary any of the provisions of TITLE 5. SECTION 15.22⁷, subtitled "General Enforcement," states that the provisions of Title 1 shall govern the enforcement of Title 5 as supplemented by the regulations which follow. Among those is § 15.25, set out in note 2, supra. ⁸

Contrary to the plaintiffs' contention that § 15.25 applies only to appeals from orders punishing violations of Title 5, and does not apply to appeals from variances under that Title, we construe the provision to apply to any appeal under Title 5. The variance provisions of Title 5, which we view as encompassing the board's regulations, see note 7, supra, are an integral portion of the enforcement provisions of Title 5. Even the placement of § 15.20 as the first section within the enforcement part of the Title refutes the plaintiffs' assertions. Accordingly, we hold that an appeal from the denial or the grant of a variance from the provisions of Title 5 is governed by the thirty-day limitation period of § 15.25. Since "a direct and distinct path of review" is available, declaratory relief is not. New England Milk Dealers Assn., Inc. v. Department of Food & Agriculture, 22 Mass.App.Ct. at 709, 497 N.E.2d 647. No special circumstances appearing, the dismissal of count I was proper.

2. Action in the nature of certiorari. Dismissal of counts II and III was correct because an action in the nature of certiorari lies only where there is no other available remedy. See Garden Homes, Inc. v. District Court of Somerville, 336 Mass. 432, 434, 146 N.E.2d 372 (1957). In any event, the counts are time barred by G.L. c. 249, § 4, as amended by St.1986, c. 95, which requires that an action in the nature of certiorari "be commenced within sixty days next after the proceeding complained of."

3. Claims of constitutional violations. Assuming, without deciding, that a three-year statute of limitations applies to these claims, ⁹ there was no error in their dismissal as the allegations do not support a claim for relief under the State or Federal civil rights acts. ¹⁰

To establish a claim under the Massachusetts Civil Rights Act, a plaintiff must allege and prove both that the " 'exercise or enjoyment of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, has been interfered with, or attempted to be interfered with,' G.L. c. 12, § 11I (inserted by St.1979, c. 801, § 1), and ... that the interference or attempted interference was by 'threats, intimidation or coercion.' G.L. c. 12, §§ 11H, 11I" (emphasis added). Appleton v. Hudson, 397 Mass. 812, 817, 494 N.E.2d 10 (1986). Since the complaint fails to allege any conduct by anyone that could be considered a "threats, intimidation or coercion," it fails to state a claim under the Massachusetts Civil Rights Act.

The plaintiffs, not having identified a Federal constitutional right of which they have been deprived, have not alleged violations of their substantive due process rights sufficient to state a claim under 42 U.S.C. § 1983 (1982). To assert such a right or interest, "a necessary prerequisite to a fourteenth amendment due process claim," Cote v. Seaman, 625 F.2d 1, 2 (1st Cir.1980), the plaintiffs must show that they have a "legitimate claim of entitlement" to the variance they seek. Cf. Roslindale Motor Sales, Inc. v. Police Commr. of Boston, 405 Mass. 79, 82, 538 N.E.2d 312 ...