Wilczewski v. Commissioner of Dept. of Environmental Quality Engineering

• Decision Date: 02 May 1989
• Parties: John F. WILCZEWSKI et al. 1 v. COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY ENGINEERING et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1204

537 N.E.2d 1204

404 Mass. 787

John F. WILCZEWSKI et al. ¹ v. COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL QUALITY ENGINEERING et al. ²

Supreme Judicial Court of Massachusetts Suffolk.

Argued Dec. 7, 1988.

Decided May 2, 1989.

William A. Hahn, for plaintiffs.

Stephen C. Karnas, Asst. Atty. Gen., for the Commissioner of the Department of Environmental Quality Engineering.

Thomas James Morrissey, for intervener.

Peter Shelley, Sarah R. Newbury & Carla Bregman for Conservation Law Foundation of New England, Inc., amicus curiae, submitted a brief.

Before ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The plaintiffs, ten residents and taxpayers of Stoughton, appeal from a decision of a judge of the Superior Court dismissing the plaintiffs' complaint for failure to exhaust administrative remedies. We affirm that decision.

The intervener, Goddard Memorial Hospital (hospital), owns approximately 125 acres of land in Stoughton. On June 13, 1985, the hospital filed a notice of intent to fill or alter wetlands in the course of constructing a roadway through its property (the roadway project). The notice of intent was filed with the Stoughton conservation commission (commission) and the Department of Environmental Quality Engineering (DEQE), pursuant to the Wetlands Protection Act, G.L. c. 131, § 40 (1986 ed.).

On July 5, 1985, the hospital's engineering firm wrote to DEQE for an opinion on the proposed project. DEQE refused to give a "definitive answer in the matter because the law and the regulations give to the [commission] the responsibility for conducting the public hearing and issuing the Order of Conditions." DEQE gave an informal opinion, however, that the proposed roadway would not qualify for an access road pursuant to 310 Code Mass.Regs. § 10.53(3)(e). ³

On October 1, 1985, the commission held a public hearing on the notice of intent, and subsequently issued an order of conditions denying the hospital permission to go forward with the roadway project. The commission stated that it was rejecting "this application only, and without prejudice to a refiling by the applicant." The commission also stated that "[t]he applicant could use existing roads" or "[f]ind an alternative route to avoid the wetlands entirely or require no more than the filling of 5,000 [square feet] or less of vegetative wetlands."

The hospital filed a request for a superseding order of conditions with DEQE. DEQE held an on-site meeting with members of the commission, hospital officials, and resident abutters. The hospital then requested that DEQE suspend processing of its request for the superseding order of conditions pending the hospital's preparation of "more detailed data which explains the effect of the proposal and which demonstrates that it advances the interests of the Wetlands Protection Act." However, the commission requested that DEQE go forward with its proceedings despite the hospital's request, stating that "if more information is to be forthcoming [then] it should take the route of an adjudicatory hearing as specified in [§ 10.05(7)(j) ] of the regulations." The record does not reflect whether DEQE ruled on these requests, but it appears that no further activity took place for nine months.

In late August, 1986, the hospital's engineers met with DEQE at the site. Other parties were not invited to attend. The hospital's engineers then sent a letter to DEQE requesting that DEQE enter a superseding order of conditions allowing the roadway project. The letter indicated that proposed revisions in the original plans were being developed which would reduce the amount of wetlands affected. Three of the plaintiffs wrote to DEQE in opposition to the hospital's request, stating that the commission and other interested parties "should have been invited to participate in the meeting and field inspection ... held at the site" in late August. They objected that the hospital was submitting an entirely new set of documents without local participation. At the request of a DEQE engineer, the hospital's engineers filed with DEQE a revised plan for the roadway project, which would have impact upon only 3,700 square feet of wetlands. DEQE then scheduled an on-site meeting "for all concerned parties so that [DEQE could] properly evaluate the situation and issue an appropriate Superseding Order of Conditions." That meeting was held on November 13, 1986.

On December 2, 1986, the commission wrote to DEQE requesting that DEQE send the hospital's request for the superseding order of conditions back to the local commission to be refiled as a new project. DEQE responded to the commission's letter as follows: "It is the policy of the Wetlands Division to not require the refiling of a plan modification when the revised project is of the same type and where the project['s] impact to the wetlands and environment is the same or lessened.... The Department has, therefore, determined that a refiling for this project is not required." DEQE stated that it would remand the case to the commission "for the purpose of setting up a public hearing to gather comments on the roadway realignment." DEQE also stated that it would consider the commission's "comments and recommendations concerning the proposed realignment" in writing the superseding order of conditions. The commission notified DEQE that it had not changed its position that the roadway project should be refiled with the commission as a new project. It did not otherwise accept DEQE's offer relative to remand. In March, 1987, DEQE notified the hospital that the revised plan for the roadway project "could be potentially approvable under the performance standards of 310 [Code Mass.Regs. s] 10.55(4)," but that additional information was required. DEQE has taken no further action.

The complaint in this case was filed in the Superior Court on November 12, 1986. The plaintiffs sought preliminary injunctive relief, which was denied. Also, in the complaint, the plaintiffs requested that the defendant commissioner and DEQE be ordered "to instruct the hospital that the proper procedure is to file the new plan with the commission for initial review." Lastly, the plaintiffs requested a declaration that "DEQE's proceedings under the new plan violate the Wetlands Protection Act and DEQE's regulations thereunder, and DEQE lacks jurisdiction to proceed under the new plan." The defendants' answers to the plaintiffs' complaint set forth a number of defenses including an alleged lack of subject matter jurisdiction in the court.

All parties moved for summary judgment, and, after a hearing, a judge ordered that "summary judgment enter for defendants on the basis that the Court lacks jurisdiction over this case." We transferred the case to this court on our own motion. We treat the order as an order for dismissal on the ground of failure to exhaust administrative remedies. We agree with the judge's reasoning.

The administrative scheme of relief available to the plaintiffs is as follows. The Wetlands Protection Act, G.L. c. 131, § 40, provides that no person may interfere with wetlands without filing a notice of intention to do so with the local conservation commission. The statute structures a system of review by the commission and DEQE designed to promote protection of the following interests: the public and private water supply, the groundwater supply, flood control, storm damage prevention, prevention of pollution, protection of land containing shellfish, protection of wildlife habitat and fisheries. The Legislature empowered the commissioner of DEQE to promulgate rules and regulations to effectuate the purposes of the act. Under those regulations, after the local commission receives a notice of intent, it has twenty-one days to hold a public hearing. 310 Code Mass.Regs. § 10.05(5). The commission then has twenty-one days in which to determine whether the project proposed is "significant to one or more of the interests" described in the statute, and issue an order of conditions to insure that the project complies with performance standards set out in the wetlands regulations. 310 Code Mass.Regs. § 10.05(6). The commission's order of conditions must prohibit projects which cannot be conditioned to meet the performance...