Opinion
WOCV200300995.
01-25-2012
Town of WESTMINSTER, et al.[1] v. John ENRIGHT.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR ENTRY OF JUDGMENT ON COMPLAINT FOR CONTEMPT
DOUGLAS H. WILKINS, Justice.
This matter comes before the Court on the Second Verified Complaint for Contempt, filed by the plaintiffs, Town of Westminster, Westminster Board of Health (" Board" ), Westminster Conservation Commission and Robert Thorell, as Building Commissioner of the Town of Westminster (collectively, " Town" ). The Town alleges violation of two orders issued by this Court on September 7, 2006 (" 2006 Order" ) and on June 8, 2008 (" 2008 Order" ), respectively. After answering through counsel, the defendant, John Enright ultimately defended against this action pro se. The Court held an evidentiary hearing on December 20, 2011, at which Westminster Health Agent, Elizabeth Swedberg, testified. The court admitted twelve exhibits into evidence. The defendant argued that the Court should not find him in contempt and should not enter the relief sought by the plaintiffs.
FINDINGS OF FACT
I make the following findings of fact by clear and convincing evidence. See Birchall, Petitioner, 454 Mass. 837 (2009).
The defendant John Enright owns property at 192 State Road West (Route 2A) in Westminster (" Property" ). His company, Enright's Construction Co., operates at the Property, using tractor-trailer rigs, trailers with excavators and other very large trucks. The driveway at the Property goes around one side of the building to the back of the building.
On July 16, 2006, the Court (Wexler, J.) issued an order on the original complaint, providing in relevant part, " Enright is ORDERED to obey state and local laws regarding sanitation, solid waste[ ] management, zoning regulations and wetland protection." Upon the plaintiff's motion to amend or alter the judgment, the Court entered an order in four parts on September 7, 2006 (" 2006 Order" ), addressing the issues regarding the defendant's Special Permit (Section I), " Board of Health/Septic System" (Section II), Solid Waste Storage & Disposal (Section III) and Conservation Commission (Section IV). Section II stated:
1. Within [sixty (60) ] days of service of this Order to cease and desist from violating the State's environmental code, 310 Code Mass. Regs. 15.301(5), by failing to take steps to upgrade the site's septic system in compliance with Title 5. The defendant shall enter into a contract within that time to correct the septic system.
2. Within [sixty (60) ] days of service of this Order to cease and desist from violating the July 16, 2001 Order of the Board to upgrade the site's septic system, and to cease occupying the site 90 days from the date of this Order until such time as the septic system is certified to be in compliance.
3. To allow the Health Agent or his designee to make inspections and investigations of the conditions on the property of the defendant at 192 State Road, Westminster, Massachusetts, including entry onto the property and the taking of photographs of the condition and use of the property. The Health Agent is to provide Mr. Enright with seven days written notice before coming to the property.
The order originally imposed a thirty-day period in paragraphs 1 and 2 of Section II, but the court later modified the order to allow a sixty-day compliance period.
On March 5, 2008, the Town filed its first Verified Complaint for Contempt under Mass.R.Civ.P. 65.3. It alleged that all the deadlines in the 2006 Order had passed and that Mr. Enright had not complied with the terms of the injunction. As pertains to Section II of the 2006 Order, the complaint alleged that Mr. Enright had not complied with the command that he cease and desist from violating Title V " of the State Environmental Code" (" Title V" ), the Board's order to upgrade the septic system, and the injunction against occupying the site until the septic system was certified in compliance with Title V.
After Mr. Enright obtained counsel, the Court scheduled the matter for trial on June 5, 2008. Rather than litigate, the parties settled the matter and submitted a proposed joint recommendation for resolution of the contempt judgment, mostly typewritten but with handwritten interlineations and deletions. The proposed resolution was signed and submitted on June 5, 2008, by counsel for the plaintiff, counsel for the defendant and by the defendant himself, entitled Agreement for Judgment. The substantive portion of the proposed resolution read as follows:
General
1. Admission of Contempt and a Judgment of Contempt to Enter.
2. That the timelines below are to be an Order of the Court entered as a Contempt Judgment.
3. That the timelines are of the essence.
4. That the Contempt Judgment order Enright to pay all town's attorneys fees and costs, not to exceed $3,500, which shall constitute a municipal lien on the property payable upon refinance, sale or transfer.
5. Portable facility until septic approval.
Septic System
1. Soil testing to be completed by on or before June 30, 2008, by a certified soil evaluator or P.E., in full and complete compliance with the requirements [sic] Title V, 310 CMR 15.00 et seq.
2. Preliminary system design to be completed and submitted to Westminster Board of Health for review on or before July 21, 2008, stamped by P.E. and in full and complete compliance with the requirements [sic] Title V, 310 CMR 15.00 et seq.
3. Installation of system to be completed and ready for final inspection within 21 days of design approval by Westminster Board of Health. If Presby Environmental Leaching System, must be installed by an installer trained by Presby Environmental on installation or the installation must be overseen by a Presby official who must filed [sic] documentation with the Board of Health certifying having overseen the installation.
Special Permit
1. All trucks and equipment behind building or off site immediately.
2. Town Counsel shall request that the Bdg. Comm'r [sic] issue a bdg permit [sic] for fence complying with requirement of special permit. Should bdg com'r [sic] decline, [a]pplication for building permit for fence filed within ten (10) days of approval of septic system by Westminster Board of Health, and fence constructed within ten (14)[sic] days.
Solid Waste Disposal
1. Parties shall request that DEP inspect [m]ound of crushed blocks, soil, etc.
2. [deleted by the parties].
The defendant himself signed the agreement. The Court (Lemire, J.) (docket # 34) endorsed the Agreement for Judgment as " approved by the Court" on June 5, 2008 (" 2008 Order" ).
He also signed a document entitled Agreement for Judgment of Contempt, which was entered as exhibit 3, but is not contained in the Court's contemporaneous files and does not bear the signature of a judge. The Court takes judicial notice of the 2008 Order as approved by Justice Lemire and treats that Order as the order of the Court. The Agreement for Judgment restates the Order in many respects, but it contains additional language that I do not treat as orders signed and issued by the Court for purposes of the contempt petition.
Mr. Enright had Global Engineering Consultants, Inc. draw up plans for a proposed sewage disposal system. The original plan date was July 7, 2008. On August 7, 2008, the Health Agent sent a letter to Mr. Enright informing him of the Board's August 6, 2008, decision on his requested approvals for the septic plan at the Property. The Board unanimously denied Mr. Enright's request for a 6-foot offset to the property line. It reasoned: " Making the system Title V compliant to the 10-foot offset to the property line still allows truck access on that side of the building and does not increase the cost of the system." Mr. Enright argued at trial that this reflects a misunderstanding of the demands and mechanics of turning the trucks that he uses. He did not, however, appeal the Board's decision, which is final. Nothing in this decision prevents him from asking the Board to reconsider, but that does not alter the fact that the Board has denied the 6-foot offset request in a final order that is no longer appealable.
The August 7 letter also reported the Board's approval of the " local upgrade approval to allow 2.29 feet offset to the estimated seasonal high ground water." After discussing alternatives, it conditioned approval in five respects as follows:
1. Bollards, steel poles filled with cement, large enough to prevent large truck[s] from mistakenly driving on the leach field, be placed around the system 8 to 12 feet apart on the sides where there will be truck access. Bollards or some other barrier such as a fence be placed on the side where cars from Kays or the side street may enter the property. The reason for this is that the Presby system will not be H-20 rated.
2. The system will have vegetative cover which will be kept mowed.
3. Nothing will be stored on top of the system including snow gathered from other areas.
4. The 2 septic tanks will be abandoned and a new tank(s) that is H-20 rated will be installed.
The Board's reasons for this are as follows:
The tanks are approximately 37 years old. We have no information that the present tanks are H-20 loading. Loaded tractor trailer trucks may be driving over the tanks. The baffles have deteriorated and need new inlet and outlet tees. The current tanks are not in compliance with current Title V requirements- ten (10) feet from slab foundation and the (10) feet from property line is required, (310 CMR 15.211 Minimum Setback Distances); " the first compartment (or tank in series) shall be sized for a minimum hydraulic detention time of 48 hours based on the design flow" (in this case 3,000 gallons), " the second compartment shall be sized for a minimum detention time of 24 hours based on the design flow" (in this case 1,500 gallons). 310 CMR 15.224, 15.225, 15.223(1)(b).
5. The revised septic design shall be submitted to the Board of Health office within 5 days of the meeting, by Monday, August 11. After review and approval by the Board of Health, the plan shall be submitted within 5 days to DEP for approval. The installation of the system shall be completed and ready for final inspection within 21 days of receiving DEP's approval. [Emphasis added].
Mr. Enright's attorney wrote a letter on September 15, 2008, articulating Mr. Enright's position that the Board's conditions were based upon erroneous information, asking that the matter be put on the calendar for reconsideration, and requesting an opportunity for Mr. Enright " to discuss downsizing the system in an effort to address the BOH's concerns and minimize the detrimental effect on the property's value." The letter discussed each of the Board's conditions. It stated that " Mr. Enright will comply" with the requirement that bollards be placed around the septic field. It also stated that " H-20 tanks are to be installed" because loaded tractor-trailer trucks may be driving over the tanks.
The Board met on October 27, 2008 to review Mr. Enright's revised septic plans and decided that the plans needed certain changes- which the Board stated " are non-negotiable" - before the Board could give final approval. Among the necessary changes were removal of language that " Proposed leach area is 6 feet from the property line," because the " plans correctly show the leach area 10 feet from property line." The Board also asked that language be added to the plans that " [t]he system will have a vegetative cover which will be kept mowed." It specifically declined to approve proposed concrete blocks as a barrier " as these are not permanent and could be moved." It then referred to a prior letter from its attorney to Mr. Enright's attorney " that is the existing tanks are water tight- ‘ to place bollards around them.’ " It directed that the plans show bollards around the tanks on 3 sides (not the building side) and around the leach area on all four sides and specified language to be included on the plans, which ultimately appeared thereon and is quoted below.
The evidence does not include a record of the Board's final approval of the plans or application in 2008. There may have been no formal additional vote. In the ordinary course, the Board approves plans, which the Health Agent then sends on to the Massachusetts Department of Environmental Protection (" DEP" ) for approval. The Health Agent did so in this case and forwarded to DEP for approval a set of plans entitled " Proposed Sewage Disposal System" by Global Engineering Consultants, Inc., revision 6, dated December 2, 2008 for the existing building at 192 State Road West (Rte 2A), Westminster, MA for client John Enright, Enright's Construction Co., Westminster, MA (" Revision 6" ). The DEP's approval of Revision 6 (discussed in the next two paragraphs) therefore demonstrates that the Board approved Revision 6. I therefore the Board approved Revision 6 after the October 27, 2008 letter. That letter was not the Board's last word.
On January 28, 2009, DEP approved Mr. Enright's application for installation of an alternative system for remedial use, namely a Presby Enviro-Septic innovative/alternative system. DEP found that the application for approval of the proposed alternative " satisfied the requirements with 15.284(2)(a) through (e)." It imposed five conditions upon the approval, including compliance with its standard conditions for the Presby Enviro-Septic system, obtaining a disposal system construction permit from the Board, prohibition of a garbage grinder, a requirement to connect to a public sewer if one becomes available, notification of the Board and remedial measures if the system fails, and a requirement that the conditions be recorded in the registry of deeds.
On January 28, 2009, DEP also endorsed Revision 6: " approved." The DEP approved plans show proposed concrete-filled bollards. In accordance with the Board's instructions, they include a " BOLLARD NOTE" which reads: " Bollards are to be 6 to 8 inch diameter steel poles filled with concrete, buried 3 to 4 feet underground and rising 4 feet above ground, positioned 4 to 6 feet apart. An alternative barrier such as a fence may be placed along the side of the leach area parallel to property line." The plans also include a " SECTION DETAIL FOR H-20 WHEEL LOADING (use only if placing pavement over leach area)." Note 2 in that section detail (" Note 2" ) states: " Bollards must remain in place until such time that system components are capable of H-20 wheel loading." The phrase, " H-20 loading" refers to a highway design capable of supporting truck traffic without damage to subsurface elements. Mr. Enright's engineer had added Note 2 sometime after his last meeting with the Board and the Health Agent. Note 2 was not one of the changes required by the Board's October 27, 2008 letter, nor does it appear to have been requested or authorized by the Board specifically in writing. The fact remains that DEP approved Revision 6, determining that Note 2, along with the rest of the plans, complied with Title V.
The " H" stands for highway. The " 20" refers to 20 tons. An H-20 rated installation will support heavy trucks.
Mr. Enright did not build the septic system within 21 days of DEP's January 28, 2009 decision. Accordingly, on March 16, 2009, the Town filed its Second Verified Complaint for Contempt. Mr. Enright's answer acknowledged that he had not yet installed a septic system on the Property. He then proceeded to arrange for construction of a new septic system, in partial compliance with the 2006 Order and the 2008 Order.
The evidence includes the as-built plans, entitled " Proposed Sewage Disposal System" by Global Engineering Consultants, Inc., revision 5, dated August 27, 2009 for the existing building at 192 State Road West (Rte 2A), Westminster, MA for client John Enright, Enright's Construction Co., Westminster, MA. Like the plans approved by DEP, they note the Board's grant of the variance for 2.29-foot separation from groundwater.
Two aspects of the as-built plans bear upon the present contempt complaint. First, the plans state that the " proposed leach area is 6 feet from property line. (310 CMR 15.211)." Second, the as-built plans show no bollards installed at the site. Nor do they include Note 2 in the Section Detail for H-20 Detail relating to retention of bollards until the system is capable of H-20 loading. There are, in fact, no bollards installed as part of the new septic system installation.
Mr. Enright has had further discussions with the Board and submitted a stamped letter from the project's registered professional engineer, Ralph R. Romano, Jr., regarding the measures needed to make the tanks capable of supporting H-20 loading. The letter referred to as-built plans dated July 7, 2008, which is the original date of the as-built plans that were later amended to yield revision 5 of the as-built plans on August 27, 2009. Among other things, the letter states that pavement need not be used over the absorption field as long as there is 12 inches of gravel over the 6 inches of sand that is already required. Mr. Enright has also submitted a letter from Presby Environmental, Inc., dated April 1, 2010, regarding the potential consequences of a collapse of the system, as well as further information regarding H-20 loading. Both the Romano and the Presby letters were received only for the limited purpose of showing what evidence has been presented to the Board, to the extent that such information may bear upon the fashioning of a remedy. Those letters were not received for the trust of the matters stated therein.
The Town's Health Agent inspected the property a day before trial. She declines to issue a certificate of compliance, because Mr. Enright has not installed bollards over the leaching area and the tanks and because he has not provided vegetative cover in compliance with the conditions included in the Board's approval of the system.
DISCUSSION
I.
" Civil contempt proceedings are ‘ remedial and coercive,’ intended to achieve compliance with the court's orders for the benefit of the complainant ... On the other hand, a criminal contempt proceeding is ‘ exclusively punitive’ " Furtado v. Furtado, 380 Mass. 137, 141 (1980) (citation omitted). The Town, as plaintiff, has the burden of proving contempt by clear and convincing evidence, rather than a mere preponderance of evidence. Birchall, 454 Mass. at 852-53. It must show that Mr. Enright's actions were a " clear and undoubted disobedience of a clear and unequivocal command." Id. 454 Mass. at 851, quoting Manchester v. Department of Envtl. Quality Eng'g, 381 Mass. 208, 212 (1980) (additional citations omitted).
II.
The first question is whether this Court's 2006 Order and 2008 Order are clear and unequivocal. A clear and unequivocal command is one which provides " all who are subject to [the] order's command [with] fair notice of the conduct the order prohibits." Sax v. Sax, 53 Mass.App.Ct. 765, 772 (2002). See Judge Rotenberg Educational Center, Inc. v. Department of Mental Retardation (No. 1), 424 Mass. 430, 448 (1997).
The Court's 2006 Order clearly and unequivocally ordered Mr. Enright to cease and desist from violating Title V; to enter into a contract within 60 days to correct the septic system; to cease and desist from violating the Board's order to upgrade the septic system; and to stop occupying the site 90 days from the date of the Order " until such time as the septic system is certified to be in compliance." The Board's then-existing upgrade order did not include the conditions upon construction of the septic system, because those conditions did not exist in 2006. The 2008 Order provided that its " timelines are of the essence" and required " installation of system to be completed and ready for final inspection within 21 days of design approval by" the Board. These orders did not lack clarity. They support a complaint for contempt in the event of non-compliance. The Town has met its burden on the first point by clear and convincing evidence.
The second question is whether the Town has shown, by clear and convincing evidence, the defendant's " clear and undoubted disobedience" of the 2006 and 2008 Orders. It is apparently an " unsettled question" whether an individual defendant may defend a contempt complaint on the ground of good faith, lack of willful disobedience or lack of intent to violate a decree. See O'Connell v. Greenwood, 59 Mass.App.Ct. 147, 150 n. 3 (2003). In this case, I find in any event that, as of the date the Town filed the petition for contempt, the defendant had not installed the septic system, was therefore in violation of both orders and that he committed this violation knowingly. He did not avail himself of available remedies to modify the order to conform to his wishes. Nor did he appeal the Board's rulings. At that time, he did not act in a good faith belief that his conduct was permitted.
The defendant argues, based upon the Health Agent's testimony, that most of the delays resulted from administrative reviews, engineering changes and revisions, as well as time for the State DEP to approve the plans. That undercuts a finding of willful and knowing violation only through the date of DEP approval, January 28, 2009. The months of non-compliance that occurred after DEP approval were not due to administrative delays. The contempt complaint was not even filed until March 16, 2009-47 days later. The defendant's answer, filed on May 13, 2009, admitted that the septic system had not been installed. Particularly where the 2008 Order provided that its timelines were " of the essence," there is no excuse for non-compliance for that period of time after DEP approval, whatever may have caused the delay prior to that time. The Town has shown by clear and convincing evidence that Mr. Enright committed contempt of the 2008 Order.
IV.
Whether the defendant continued in contempt after he caused his contractors to build the septic system without bollards is a trickier question. The 2006 Order did unequivocally order Mr. Enright to cease occupying the site 90 days after entry of the order " until such time as the septic system is certified to be in compliance." The Town does not specifically invoke that provision; nor did it prove that he continues to occupy the site. I could infer that he continues to do so, but I do not so find by clear and convincing evidence. Even if I made such a finding, the question would remain whether the Board should have certified him to be in compliance, which is not an easy question (as discussed below) and would be a difficult basis for a finding of clear and undoubted disobedience.
The other provisions of the Court's orders require Mr. Enright to come into " full and complete compliance with" - and to cease and desist from violating- Title V and the Board's order to upgrade the site. There is also a requirement that the system be " completed and ready for final inspection" by the Board. That requirement appears in paragraph 5 of the 2008 Order, which ties compliance to " the plan" approved by the Board and approved by DEP. That plan, as approved by DEP, included Note 2. Under the clear and convincing evidence standard, I cannot find that the plan finally approved by the Board was any different.
The question is whether the otherwise clear commands of the 2006 Order and 2008 Order also include a clear and unequivocal command to install bollards in the circumstances of this case. I conclude that they fall short because the Board's approvals are not themselves sufficiently clear in light of Note 2 and the DEP approval thereof (and the Board's own reference to the absence of H-20 design as a rationale). True, the Board's conditions originally did contain a clear and unequivocal command to install bollards, but, as noted above, that was not the final word, given that " the plans" approved by the Board and DEP contained Note 2.
As events played out, Mr. Enright can plausibly claim (1) compliance with Title V and the Board's order and (2) completion so as to be ready for final inspection. He argues that he has constructed the septic system to H-20 standards and, therefore, has a complete and compliant septic system, because of Note 2 to the Section Detail for H-20 Wheel Loading on the plans. After all, Note 2 provides that " Bollards must remain in place until such time that system components are capable of H-20 wheel loading."
I am aware of the murky circumstances under which Note 2 appeared, belatedly, in the plans. Note 2 itself is an aggressive interpretation of the Board's order, despite its arguable relationship to the Board's own H-20-based comments. Note 2 may well have slipped through the regulatory process unnoticed. I credit the Health Agent's testimony that it was not on an earlier version of the plans and that she did not notice it. That note is not consistent with the Board's very clear requirement for bollards, stated in its decision dated August 7, 2008 and its letter dated October 27, 2008. At the same time, Note 2 has some basis in the August 7, 2008 decision, which gave as its reason " that the Presby system will not be H-20 rated." To interpret the Board's language as implicitly allowing H-20 rated construction to obviate the need for bollards- while not the interpretation the Court would adopt in the usual context- is not so unreasonable as to prove the willful disobedience needed for a contempt proceeding, when combined with the Board's and DEP's approval of the plans with Note 2 displayed thereon.
I conclude that Mr. Enright or his engineer quietly submitted Note 2 on the plans that the Board approved, most likely hoping that no one would notice. They were right. Nevertheless, I cannot simply ignore Note 2, the Board's and DEP's approval of Note 2 and the plausible consistency between Note 2 and the Board's stated rationale for requiring bollards. Paragraph 5 of the 2008 Order keys compliance to " the plans" approved by the Board and DEP. Ignoring part of the approved plans is no more justifiable than ignoring any other statement or decision of the Board. The Courts must respect the entirety of an agency action; otherwise, by picking and choosing, they would usurp a portion of the agency's decision-making authority. If the Board claims that it was duped and that its order should be clarified or modified- or that the approval of Note 2 should be vacated, if such an action is even lawful at this point- it is for the Board, not the Court, to do so, subject to appeal.
The ambiguity in the Board's order also blunts the argument that Mr. Enright is barred from advancing his arguments in this proceeding because of his failure to appeal the Board's ruling. He has certainly waived any right to challenge the Board's decisions in 2008. See Conservation Commission of Falmouth v. Pacheco, 49 Mass.App.Ct. 737 (2000); Bonfatti v. Zoning Board of Appeals of Holliston, 48 Mass.App.Ct. 46, 50 (1999); Balcam v. Town of Hingham, 41 Mass.App.CT. 260, 266 (1996). He contends, however, that he had no reason to appeal, because was satisfied with the Board's ruling, including approval of Note 2. The mixed signals sent by the Board- which control the narrow issues presented by the contempt petition- exist regardless of any failure to appeal.
Even if I viewed the command to place bollards around an H-20 rated installation as clear, there would still be a question whether there has been " clear and undoubted disobedience" of that command. The Town encounters the same problem on this element: it is not entirely clear that Mr. Enright disobeyed the order to come into compliance with Title V where DEP approved plans containing note 2 or the order to comply with the Board's order, where the Board approved the same plans and had previously articulated a rationale based upon the lack of H-20 rated construction.
V.
Upon a finding of contempt, this court has the authority to impose a prospective, coercive fine, payable to the Commonwealth ( Labor Relations Comm'n. v. Fall River Educators' Ass'n., 382 Mass. 465, 475-76 (1981)); a retrospective, compensatory fine, payable to the plaintiff for harm caused by past violations (Fall River Educators, 382 Mass. at 474-78); coercive incarceration, including a sentence for a fixed term, if suspended for a period to allow the defendant to purge the contempt ( Barreda v. Barreda, 16 Mass.App.Ct. 918, 920-21 (1983)); and attorneys fees (Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 571 (1997)). The " formulation of the remedy is within the judge's discretion." Eldim, Inc. v. Mullen, 47 Mass.App.Ct. 125, 129 (1999), quoting Demoulas, 424 Mass. at 571.
In this case, the defendant's clear contempt has injured the plaintiff in the amount of attorneys fees necessary to bring this case. The plaintiff will be compensated for that loss.
Prospective relief is limited by the somewhat confusing nature of the Board's approval. In the first instance, the Board should address the discrepancy noted above between its letter and the presence of Note 2 on the approved plans. That will also give it the opportunity to address whether there is really a need for bollards for a H-20-rated system, as well as whether Mr. Enright has, in fact, installed an H-20-rated system. The Board can, of course address any other relevant issue within its authority. Should this Court's 2006 and 2008 Orders need clarification or further injunctive relief to accomplish the purpose of the orders, the Board may seek further relief in this Court once it has addressed the issues.
Nothing in this decision in any way precludes the Board from enforcing title V or clarifying its orders through standard administrative processes under its own statutory and regulatory authority.
ORDER
After notice, evidentiary hearing and opportunity for argument, the Court ORDERS AND ADJUDGES THAT FINAL JUDGMENT OF CONTEMPT SHALL ENTER AS FOLLOWS:
1. By clear and convincing evidence, the Court finds defendant John Enright in contempt of this Court's Order dated June 5, 2008, entered on the docket on June 14, 2010.
2. The defendant is ordered to pay attorneys fees to the plaintiff. The plaintiff shall serve a motion for fees, with supporting affidavits and exhibits, on or before February 20, 2012 and shall file the motion package under Superior Court Rule 9A on or before March 20, 2012.
3. If the plaintiff wishes to seek further injunctive relief clarifying, modifying, extending or further enforcing the 2006 and 2008 Orders, it may do so after the Board meets to address and decide the issues stated herein. The Board is not required to take any action unless it so chooses.
SO ORDERED