Opinion
09-P-1537
05-14-2012
NORTHEAST CONCEPTS, INC., & another v. DEPARTMENT OF ENVIRONMENTALPROTECTION (and a companion case ).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal involves an approximately seventy-nine-acre parcel located in Holland and owned by Northeast Concepts, Inc., and its controlling shareholder, LaMountain (collectively, Northeast). Since about 2006 the property has been subject to Department of Environmental Protection (DEP) enforcement actions, the DEP generally contending that several of Northeast's activities (e.g., open burning and destruction of wetlands) violated the Wetlands Protection Act (WPA) and its regulatory implementations.
At issue here are two Superior Court actions, which were consolidated by this court for review. The first, referred to by the parties as '1215,' is a G. L. c. 30A appeal brought by Northeast against the DEP. That matter arose out of two enforcement orders and an assessment of penalties issued by the DEP against Northeast in 2007. Northeast received the orders in April, 2007, responding with an 'intent to claim agricultural exemption and notice of appeal'; Northeast did not pay the required $200 filing fee, claiming financial hardship. On several occasions the DEP requested additional supporting information on the fee waiver request (among other things, a properly prepared affidavit of indigency and supporting tax returns), and it sent the requests to multiple addresses. Northeast did not respond. Eventually, after much back and forth, the DEP dismissed Northeast's appeal on the ground that Northeast's appeal was untimely, though Northeast eventually did tender the $200 filing fee. Northeast filed a c. 30A appeal, which a Superior Court judge dismissed on the pleadings, generally concluding that the DEP's dismissal was 'supported by substantial evidence,' was neither arbitrary nor capricious, and otherwise was within its discretion.
'It is very clear that the plaintiff actually received the notices which were mailed to 16 Lake Ridge Road, and that it failed to respond in a timely manner with the information which the DEP reasonably requested.' The judge also dismissed Northeast's claim that it was entitled to an agricultural exemption, reasoning that 'there was no final decision concerning the plaintiff's claim for an agricultural exemption and that the plaintiff did not exhaust its administrative remedies.'
The second matter, which the parties refer to as '1123,' was an enforcement action by the DEP against Northeast. The DEP filed the action in December, 2008, generally contending that several of Northeast's actions constituted WPA violations. The DEP sought an injunction and civil penalties. The parties engaged in discovery. Northeast did not fully respond (most notably failing to respond to interrogatories and requests for production of documents). The DEP filed a motion to compel and, eventually, a motion for default. Default as to liability entered against Northeast in late March, 2009. Northeast moved for relief, generally contending that various life circumstances excused its failure to comply. After a hearing, the judge denied Northeast's motions for relief. The DEP moved for an assessment of damages (the civil penalties originally sought). After an evidentiary hearing, a judge awarded the DEP about $150,000 ($75,000 per defendant) in civil penalties and entered the requested injunction.
Northeast's counsel withdrew; new counsel did not immediately 'apprehend' the 'seriousness of the notice' for default because the cover letter only mentioned the supplemental answers to interrogatories; one of counsel's paralegals died; the defendants were involved in a number of other legal matters; and the individual defendant was 'overwhelmed' by the discovery requests and had been placed on 'medication' by his doctor.
'There is no basis to establish excusable, inadvertent or excusable neglect pursuant to Rule 60(b) as an avenue of relief for the defendant.' The DEP points out that although the defendants moved for relief pursuant to rule 60(b), the motion should have been brought under Mass.R.Civ.P. 55(c), 365 Mass. 822 (1974), which sets forth the less stringent standard for setting aside a default. The defendants never urged the applicability of rule 55(c), and although we do not suggest that its application would necessitate a different outcome, the issue has been waived.
The appeal raises procedural questions whether (i) the judge properly defaulted Northeast in 1123 as a discovery sanction and appropriately entered civil penalties and an injunction after an evidentiary hearing; and whether (ii) the DEP properly declined to consider Northeast's administrative appeal in 1215. As to 1123, Northeast makes no argument that it complied with discovery. Instead, it argues that it has a meritorious defense (the claimed agricultural exemption); that its failure to respond was due to 'excusable neglect'; and that the judge failed to properly consider the various factors that inform discretion in such circumstances. Northeast also claims that the civil penalties imposed following the evidentiary hearing constitute an illegal (or at least excessive) discovery sanction. However, the penalties were the damages requested by the DEP as a WPA enforcement penalty, not a discovery sanction. In 1123, Northeast moved for relief from the judgment, which motion was denied.
Appeal no. 11-P-1166, which is pending in this court, involves the town of Holland fire department and Northeast. In that case a Superior Court judge determined that Northeast is entitled to an agricultural exemption which precludes the town fire department from enforcing certain of its open burning regulations. The town fire department has appealed. That appeal has yet to be decided. The pendency of appeal no. 11-P-1166 was not noted by either party. There was neither a request for consolidation nor for a stay.
As to 1215, Northeast claims that the DEP's decision to reject its appeal was arbitrary and capricious because the DEP knew that Northeast often did not receive certified mail notices. Northeast's argument ignores that it more or less admits that it received all of the required notices and that, while it did eventually pay the $200 filing fee, the fee was filed more than four months late and Northeast failed to provide adequate support for its fee waiver request. In addition, Northeast again contends that it has a meritorious defense -- the agricultural exemption -- and that denying its appeal on simple 'technical' or 'procedural' grounds violates its due process rights. We are not persuaded that the DEP's action was arbitrary or capricious in the circumstances.
Judgments affirmed.
Order denying postjudgment motions
affirmed.
By the Court (Mills, Meade & Rubin, JJ.),