Opinion
19-P-1395
08-10-2021
Matthew HANEY, trustee, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Matthew Haney, as trustee of the Gooseberry Island Trust and the SN Trust (trusts), appeals from a judgment affirming the final decision of the Department of Environmental Protection (department) denying the trusts’ proposal to build a bridge to connect their properties. We affirm.
Background. The trusts submitted a notice of intent (NOI) to the Mashpee Conservation Commission (commission) under the provisions of the Massachusetts Wetlands Protection Act, G. L. c. 131, § 40 (act), the department's wetlands regulations, and the Mashpee wetlands protection bylaw, seeking a permit to build a single-lane timber bridge, supported by timber piles, across the shallow channel that separates Gooseberry Island from Punkhorn Point on the mainland in Mashpee. See 310 Code Mass. Regs. § 10.05(4) (2014). The owners of the abutting properties on the mainland and members of the Wampanoag Tribe, which has shell fishing rights in the surrounding tidal flats, opposed the project. The commission denied the trusts’ proposal after a public hearing but failed to issue its decision within twenty-one days of the hearing's conclusion, as required by the act. See Garrity v. Conservation Comm'n of Hingham, 462 Mass. 779, 780 (2012).
Gooseberry Island Trust owns the island, and SN Trust owns a parcel on the point. The bridge would make it possible to build a single-family residence on the island.
The trusts requested superseding review by the department in accordance with 310 Code Mass. Regs. § 10.05(7)(b) (2014). The department's southeast regional office reviewed the commission's decision and issued a superseding order of conditions (SOC), also denying the timber bridge proposal, which the regional office concluded did not meet performance standards under the department's regulations because the bridge would destroy parts of, and otherwise adversely affect, the salt marsh in which the timber piles would be driven. See 310 Code Mass. Regs. § 10.32(3), (4) (2014). The trusts appealed the SOC by requesting an adjudicatory hearing in accordance with 310 Code Mass. Regs. § 10.05(7)(j)(2) (2014). While the appeal was pending, however, the trusts revised their proposed construction project to provide for a steel, rather than a timber, bridge. The new design avoided driving timber piles into the salt marsh and increased sunlight penetration. However, the steel bridge design was wider and heavier than the wooden bridge. The regional office supported the revised plan; the commission, as well as the abutting property owners and members of the Wampanoag tribe, who were permitted to intervene, opposed it.
The department's review of the commission's decision was circumscribed to the commission's application of the act and the department's wetlands regulations, as the department lacks jurisdiction to review a conservation commission's application of local bylaws. See Oyster Creek Preservation, Inc. v. Conservation Comm'n of Harwich, 449 Mass. 859, 866-867 (2007) ; Healer v. Department of Envtl. Protection, 73 Mass. App. Ct. 714, 718-719 (2009).
After a one-day evidentiary hearing, a presiding officer of the department's Office of Appeals and Dispute Resolution (OADR) issued a recommended final decision affirming the department's denial of the original project proposal and denying review of the revised proposal because the steel bridge was, under the department's so-called "plan change policy," "substantially different" from the timber bridge first proposed and would therefore require review by the commission in the first instance. See Wetlands Program Policy 91-1: Plan Changes (rev. Mar. 1, 1995). Specifically, the presiding officer found that the trusts’ witnesses, who testified that the new design was not substantially different from the prior design and would decrease impacts to wetlands, were not persuasive. By contrast, he found that the commission's and the intervenors’ experts were more qualified than the trusts’ experts and effectively demonstrated that the steel bridge alternative was substantially different and that its construction would increase impacts to salt marsh and shellfish resources. The commissioner of the department adopted the presiding officer's recommendation, rendering it a final decision of the department. See 310 Code Mass. Regs. § 1.01(14)(b) (2004).
On behalf of the trusts, Haney sought judicial review under G. L. c. 30A, § 14. Acting on cross motions for judgment on the pleadings, see Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974), a Superior Court judge affirmed the department's final decision.
Discussion. 1. Standard of review. Under G. L. c. 30A, § 14 (7), "the Superior Court may reverse a decision of an administrative agency if the decision is based on an error of law or unwarranted by the facts, or is arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law." Flanagan v. Contributory Ret. Appeal Bd., 51 Mass. App. Ct. 862, 864 (2001). The standard of review is "highly deferential to the agency, which requires ... according due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it" (quotations and citations omitted). Friends and Fishers of Edgartown Great Pond, Inc. v. Department of Envtl. Protection, 446 Mass. 830, 836 (2006). "To set aside the department's decision, the plaintiff must show not only that the department violated its own regulations, but also that his substantial rights were prejudiced." Wilson v. Department of Social Servs., 65 Mass. App. Ct. 739, 747-748 (2006). On appeal, we "conduct[ ] an analysis of the same agency record" without giving "any special weight" to the Superior Court judge's decision. Doe, Sex Offender Registry Board No. 524553 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 525, 527 n.3 (2020), quoting Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Comm'n, 377 Mass. 897, 903 (1979).
2. Plan change policy. Haney first contends that the department's final decision denying review and approval of the trusts’ steel bridge proposal was based upon unlawful procedures and errors of law, see G. L. c. 30A, § 14 (7) (c ), (d ), because the department failed to follow its plan change policy. Under the policy, the department "may accept project revisions at any time while an NOI is under appeal." However, the department generally will not consider plan changes, and will require a new NOI to be filed with the local conservation commission, if the new proposal is "substantially different from the plan acted upon by the [c]onservation [c]ommission." "Substantial plan changes are deemed to be those changes which significantly modify the project configuration and which result in increased impacts to wetland resource areas."
Haney does not contest the presiding officer's determination that the steel bridge proposal was substantially different from the timber bridge proposal. Rather, he claims that the presiding officer erred by failing to consider the revised proposal under one of the policy's three exceptions, which provides that the department "may accept plan changes that are substantial" if the local conservation commission has "failed to act" on the NOI. The department concedes that the presiding officer had the discretion to act on the trust's plan change under the exception, but argues that the officer implicitly declined to exercise that discretion.
While not a "true regulation[ ]," the plan change policy is "functionally analogous to [a] regulation[ ]. Therefore, we treat the [department's] interpretation of the [policy] with the same deference we would its interpretation of its own regulations." DeCosmo v. Blue Tarp Redev., LLC, 487 Mass. 690, 699 n.16 (2021). See Carey v. Commissioner of Correction, 479 Mass. 367, 371 (2018), quoting G. L. c. 30A, § 1 (5) ("a regulation ‘includes the whole or any part of every rule, regulation, standard or other requirement of general application and future effect, including the amendment or repeal thereof, adopted by an agency to implement or interpret the law enforced or administered by it’ "); 310 Code Mass. Regs. § 2.01 (1994) (department's procedural regulation defining "regulation"). "If the regulation is plain and unambiguous, it should be interpreted according to its terms." DeCosmo, supra at 699, citing Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019). If the regulation is ambiguous, we generally refer to the agency's interpretation. See id. at 698-700. "Unless an agency's interpretation of its own regulation is arbitrary, unreasonable, or inconsistent with the plain terms of the rule, such interpretation is entitled to deference" (quotation and citation omitted). Carey, supra at 369.
We discern no error in the presiding officer's application of the policy. Under the policy, when changes to a plan are substantial, the department "may" accept them if one of the exceptions applies. "[T]he distinction between words of permission or discretion and words of command, including the distinction between ‘may’ and ‘shall,’ has been carefully observed" in the interpretation of statutory and regulatory schemes. Cline v. Cline, 329 Mass. 649, 652 (1953). "The use of the word ‘may’ denotes a discretionary power." Provencal v. Commonwealth Health Ins. Connector Auth., 456 Mass. 506, 513 (2010). The permissive language of the policy gave the officer broad discretion not to invoke the exception.
To the extent Haney argues that the presiding officer's error was in not recognizing that he had the discretionary authority to consider the changed proposal, see Carter v. Lynn Hous. Auth., 450 Mass. 626, 635 (2008), we discern no error or prejudice. First, the applicability of the exception was not before the presiding officer. The sole issues at the adjudicatory hearing were whether the trusts’ appeal of the SOC was proper and, if so, whether the revised project was substantially different from the original proposed project. The trusts did not raise the exception until after the hearing, in their post-hearing memorandum. Thus, the presiding officer was not required to consider it. See 310 Code Mass. Regs. § 1.01(6)(k) (2008) ("The Presiding Officer shall, absent good cause shown, limit the issues for adjudication to the issues identified in the notice of claim ... or as identified at the prescreening conference"). Cf. Services Employees Int'l Union, Local 509 v. Labor Relations Comm'n, 410 Mass. 141, 146 (1991), quoting Stow v. Labor Relations Comm'n, 21 Mass. App. Ct. 935, 939 (1985) ("question ... not raised before the hearing officer or the [agency] ... [is] waived").
The commission and the intervenors asserted that the trusts’ appeal from the SOC was "futile" because the trusts had not first sought review of the commission's decision in the Superior Court. The trusts replied that they did not need to seek relief in the Superior Court because the commission's denial of the NOI was untimely. The trusts prevailed on this issue.
In any event, it would be an empty exercise to remand the steel bridge plan to the presiding officer to decide whether to invoke the exception or to follow the general rule and allow the commission to consider the plan in the first instance. See Casavant v. Norwegian Cruise Line, Ltd., 76 Mass. App. Ct. 73, 78 (2009), S.C., 460 Mass. 500 (2011) ("While a remand is often necessary when a judge applies the improper legal standard, we conclude that in the circumstances presented here, a remand on this issue is neither practical nor necessary"). The presiding officer determined that "[a] preponderance of the evidence ... demonstrated that the steel bridge is substantially different than the timber bridge and increases wetlands impacts." Thus, it is readily apparent from the record that the presiding officer would have chosen not to consider the plan, or would reject it if he did consider it. See Gabbidon v. King, 414 Mass. 685, 686 (1993) ("on appeal, we may consider any ground apparent on the record that supports the result reached in the lower court").
3. Burden of proof. Haney also asserts that the department improperly placed the burden of going forward and the burden of proof on the trusts at the adjudicatory hearing. He concedes that the trusts initially carried the burden of going forward in appealing the department's denial of the proposed timber bridge project, but contends that "the dynamics of the [a]djudicatory [a]ppeal fundamentally changed" when the trusts revised the project. Because the southeast regional office supported the revised project, Haney reasons, the department's change in position shifted the burden of going forward to the opponents of the project. He also makes a convoluted argument that the presiding officer applied the incorrect burden of proof under the plan change policy.
We discern no error. Considering the plain language of the wetlands regulations, the presiding officer correctly assigned the burden of proof to the trusts at the adjudicatory hearing. The burden of going forward is placed "upon the person contesting the [d]epartment's position when the [d]epartment has been requested to hold an adjudicatory hearing" (emphasis added). 310 Code Mass. Regs. § 10.03(2) (2014). Because the trusts contested the department's position at the time they first requested an adjudicatory hearing, the burden of going forward fell on them. This burden remained with them during the adjudicatory process. Nothing in the regulations suggests that the revisions to the proposed project or any endorsement by staff at the regional office would have any effect on that burden.
The plan change policy also clearly places the burden of proof concerning plan changes on the project proponent. The policy lacks any language suggesting that this burden would be altered if a project proponent argued, as the trusts do on appeal, that an exception to the policy applied. While the policy does not specifically state the standard of proof, the general rule at the department's adjudicatory hearings is that the petitioner must "prov[e] its direct case by a preponderance of the evidence." 310 Code Mass. Regs. § 10.05(7)(j)(3)(b) (2014). The presiding officer's determination that the preponderance standard applied to the plan change policy was reasonable. Deference to the department's application of its own regulations is warranted. See DeCosmo, 487 Mass. at 699.
Under the plan change policy "the burden is on the project proponent to demonstrate that the plan change is insubstantial," meaning that "the plan change results in an unchanged, or not significantly changed, project configuration and unchanged or decreased impact to any wetland resource areas."
The 1996 adjudicatory decision cited by Haney does not compel a different result.
Even if the presiding officer had erred in identifying and assigning the burden of going forward or the burden of persuasion, the trusts were not prejudiced. See Wilson, 65 Mass. App. Ct. at 747-748. The commission and the intervenors would have prevailed if these burdens had been placed on them. The administrative record included not just "some credible evidence from a competent source," 310 Code Mass. Regs. § 10.03(2) (2014), in support of the proposition that the steel bridge plan amounted to a substantial change, but compelling evidence from witnesses that the presiding officer considered well qualified and credible. See School Comm. of Norton v. Massachusetts Comm'n Against Discrimination, 63 Mass. App. Ct. 839, 847 (2005) (issues of credibility are for agency). Moreover, under the preponderance of the evidence standard, the identity of the party that carries the burden matters only in the rare case when the evidence is in equipoise. See Commonwealth v. Ogarro, 95 Mass. App. Ct. 662, 667 (2019). It is clear from the presiding officer's decision that he did not consider the question close. The placement of the burdens of proof and persuasion did not make any difference.
4. Post-hearing proposal. After the adjudicatory hearing, the trusts submitted a post-hearing supplemental memorandum proposing conditions that would mitigate any potential increased wetlands impacts that the steel bridge project would cause. Given that the presiding officer properly declined to address the trusts’ steel bridge proposal under the plan change policy, he had no reason to consider the mitigation conditions proposed in the trusts’ supplemental memorandum. As the presiding officer suggested when he denied the commission's and intervenors’ motion to strike this portion of the trusts’ supplemental memorandum, the issue of mitigation was moot.
Conclusion. Because Haney has not shown any error in the adjudicatory proceedings or prejudice to the trusts’ substantial rights, we see no reason to disturb the ruling of the Superior Court judge affirming the department's final decision.
Judgment affirmed.