Opinion
BACV201700465
05-30-2019
John R. ZIZZA v. FALMOUTH CONSERVATION COMMISSION et al.[1]
FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT ON COUNT I OF COMPLAINT
Mark C. Gildea, Justice
John Zizza filed this action seeking a declaratory judgment that a decision of the Falmouth Conservation Commission denying an Order of Conditions for his proposed boulder relocation project is without legal effect.
FINDINGS OF FACT
Zizza owns a single-family home on an 18, 360-square-foot lot located at 82 Waterside Drive in North Falmouth which borders on Buzzards Bay ("the Property"). A 300-foot long breakwater or boulder field is located in the waters of Buzzards Bay, approximately 150 to 215 feet offshore from the Property. This boulder field has existed for approximately 50 years. Zizza wants to relocate six of the boulders (approximately 25% of the boulder field) in order to create three channels of navigation. On February 13, 2017, Zizza filed a Notice of Intent with the Commission seeking a permit for his boulder relocation project ("the Project") under the Wetlands Protection Act ("WPA") and the Falmouth Wetlands Protection Bylaw and Regulations ("Bylaw"). The Commission held public hearings on March 29 and July 19, 2017.
Zizza’s neighbors, who are direct abutters, opposed the Project, testified at the hearing, and hired an expert who submitted a letter in opposition to the Project.
The public hearing closed on July 19, 2017. The Commission deliberated at a public meeting on August 2, 2017 and voted to deny the Project. The Commission then executed a denial Order of Conditions.
Zizza filed this action on October 5, 2017. Count I of the complaint seeks a declaratory judgment that because the Commission did not issue a decision within twenty-one days of the close of the public hearing, its decision is without effect and DEP’s superseding order of conditions will control the Project. Count II of the complaint seeks review in the nature of certiorari of the Commission’s decision.
The parties filed cross motions for judgment on the pleadings. Zizza then filed a motion for summary judgment on his declaratory judgment claim. In a Memorandum of Decision and Order dated December 26, 2018, this Court denied that motion, concluding that there remained a factual issue for trial with respect to whether the Commission’s decision was issued by the statutory deadline. The Court took no action at that time on the cross motions for judgment on the pleadings.
The Court held a jury-waived trial on the declaratory judgment claim on April 16, 2019. The parties submitted an "Agreed Statement of Fact For Trial On the Issue of Whether The Commission’s Decision Was Issued By The Statutory Deadline" which contains the following facts. Twenty-one days from the close of the public hearing was August 9, 2017. The Order of Conditions prepared by the Commission states that the date of its issuance is August 9, 2017. On August 9, the Commission’s Administrative Assistant, Courtney Tazziz, prepared two mailings of the Order of Conditions. She placed the original Order of Conditions in an envelope addressed to Zizza’s wetlands consultant, LEC Environmental Consultants, at 12 Resnick Road, Suite 1 in Plymouth, Massachusetts. Affixed to this envelope was certified mail return receipt request No. 7009 2250 0004 3140 7642. Tazziz placed a copy of the Order of Conditions in an envelope addressed to Zizza at 38 Church Street in Winchester, Massachusetts to be mailed by first class mail. On August 9, Tazziz delivered both envelopes to the Town Hall receptionist and instructed her that both envelopes must be mailed that day.
In the usual course of business, when advised that a mailing must be completed on the day received, the receptionist adds postage using a Pitney Bowes U.S. Postage Meter and mails the envelope by placing it in the United States Postal Service mail box located outside of Town Hall before the last scheduled pickup of the day. The envelope addressed to LEC has metered mail postage of $6.56 in the upper right-hand corner with a date of August 9, 2017. The top center of this envelope shows a stamp stating, "RETURNED FOR POSTAGE" and a handwritten note stating, "Add $1.15." The additional postage was added on August 17 and the envelope stamped in black ink with the words "PROVIDENCE, R.I. THU AUG 2017" along with black ink cancellation bars. The envelope was stamped August 17, 2017.
Zizza has a part-time administrative assistant, Loretta Fermano, who helps process his mail. In August of 2017, Fermano worked on Tuesdays. On Tuesday, August 16, she processed Zizza’s mail, which included the envelope from the Commission containing the Order of Conditions. Fermano placed the envelope from the Commission in the trash and it cannot be recovered. She sent the copy of the Order of Conditions to Zizza’s son, Michael, for review.
On August 23, 2017, Zizza requested that the DEP review the Project and issue a superseding order of conditions. On March 7, 2019, DEP issued a Superseding Order of Conditions denying the Project. Zizza has timely appealed and requested an adjudicatory hearing with DEP.
RULINGS OF LAW
The WPA "sets out in some detail the application process for an order of conditions, the review process to be followed by a conservation commission, the time frames in which the conservation commission must act, and the consequences of a failure to act in a timely manner." Garrity v. Conservation Comm’n of Hingham, 462 Mass. 779, 783 (2012). The statute provides in relevant part:
if a commission, after holding [a public] hearing has failed within twenty-one days therefrom to issue an order ... the applicant ... may, by certified mail and within ten days of said commission’s order or failure to act, request the department of environmental protection [to act] ... Such order shall supersede the prior order of the conservation commission ... and all work shall be done in accordance therewith ...
G.L.c. 131, § 40. The Bylaw also contains a twenty-one-day deadline for issuance of an order of conditions. "By its terms, the act’s twenty-one-day decision deadline confers a right on an applicant to a prompt ruling from a conservation commission within a defined time frame." Garrity v. Conservation Comm’n of Hingham, 462 Mass. at 788. The deadline "bespeaks a legislative purpose of ensuring that applications for orders of conditions be considered and ruled on expeditiously." Id. The timing provisions of the WPA are obligatory and a local community is not free to expand or ignore them. Oyster Creek Preservation, Inc. v. Conservation Comm’n of Harwich, 449 Mass. 859, 866 (2007). Where a commission does not issue its decision until after the twenty-one-day period has expired, the late-issued order of conditions is without effect and DEP’s superseding order of conditions governs, even if the local bylaw is more restrictive. Garrity v. Conservation Comm’n of Hingham, 462 Mass. at 790-91 (decision mailed to applicant twenty-two days after close of public hearing); Oyster Creek Preservation, Inc. v. Conservation Comm’n of Harwich, 449 Mass. at 865 (decision postmarked twenty-four days after close of public hearing); Regan v. Conservation Comm’n of Falmouth, 77 Mass.App.Ct. 485, 489 (2010) (decision mailed twenty-two days after close of public hearing).
Bylaw § 235-5 provides: "The Commission shall issue its permit or determination in writing within twenty-one (21) days of the close of the public hearing thereon unless an extension is authorized in writing by the applicant."
Zizza first argues that the Commission’s sending him the Order of Conditions by first class mail was ineffective because it did not comply with DEP regulations, which state: "The Order ... shall be mailed by certified mail (return receipt requested) or hand delivered to the applicant or his or her agent or attorney, and a copy mailed or hand delivered at the same time to the Department." 310 Code Mass. Regs. § 10.05(6)(e). Notably, the Commission did send the Order of Conditions by certified mail to Zizza’s agent, LEC. Moreover, the Bylaw does not require any specific method of mailing. Because the Order of Conditions rested on the Bylaw and not the WPA, the failure to deliver it by certified mail is not fatal.
Zizza further contends that the Commission did not "issue" the Order of Conditions within the twenty-one-day deadline because it placed inadequate postage on the envelope, causing it to be returned to the Town and re-mailed at a later date. DEP’s regulations provide that "within 21 days of the close of the public hearing, the conservation commission shall ... issue an Order of Conditions for the protection of said [wetlands] interests on Form 5." 310 Code Mass. Regs. § 10.05(6)(a). Under DEP regulations, the "Date of Issuance" is "the date an Order is mailed, as evidenced by a postmark, or the date it is hand delivered." 310 Code Mass. Regs. § 10.04. Similarly, the Falmouth Wetlands Regulations provide: "Date of Issuance means the date a permit is mailed, as evidenced by a postmark, or the date it is hand delivered, as evidenced by a signed receipt." FWR 10.04.
It is undisputed that the Commission executed an Order of Conditions within twenty-one days of the close of the public hearing on August 9, 2017 and attempted to mail it the same day. The Commission relies on the principle that the mailing, postage prepaid, of a properly addressed letter is prima facie evidence of its receipt by the addressee, because the regular course of the mails is presumed. See Holiver v. Department of Pub. Works, 333 Mass. 18, 21 (1955) (notice of resumption of payments under contract); Anderson v. Billerica, 309 Mass. 516, 518 (1941) (notice to town clerk of injury from defect in town way); Commonwealth v. Barboza, 68 Mass.App.Ct. 180, 185 (2007) (notice of defendant’s appeal). This evidentiary presumption of delivery does not assist the Commission here, where the critical issue is not whether Zizza received notice of the Order of Conditions through the mail but whether the Commission met the strict twenty-one-day deadline for its issuance. Cf. Zuckerman v. Zoning Bd. of App. of Greenfield, 394 Mass. 663, 669 (1985) (sending decision prepaid to applicant satisfied G.L.c. 40A, § 15 mailing requirement absent showing that notice of decision was improperly addressed or had insufficient postage).
In any event, this Court agrees with Zizza that under the so-called "mailbox rule," postage prepaid necessarily means adequate postage. In light of the undisputed evidence that the Town Hall receptionist placed insufficient postage on the envelope to LEC, this Court simply cannot reasonably infer that she placed the proper postage on the missing envelope to Zizza.
Under DEP regulations as well as the Town’s wetlands regulations, the date of issuance is the date of mailing as evidenced by a postmark. 310 Code Mass. Regs. § 10.04; FWR 10.04. The United States Postal Service Glossary of Postal Terms contains the following definition of "postmark":
A postal imprint made on letters, flats, and parcels that shows the name of the Post Office that accepts custody of the mail, along with the two-letter state abbreviation and ZIP code of the Post Office, and for some types of mail the date of mailing and the time abbreviation a.m. or p.m. The postmark is generally applied, either by machine or hand, with cancellation or killer bars to indicate that the postage cannot be reused.
The fact that the Town Hall receptionist placed the envelope into the mail box for pickup on August 9 does not satisfy the regulations’ requirement that mailing be evidenced by a postmark. Moreover, the mere affixing of postage on August 9 does not show that the Post Office accepted custody of the envelope and therefore is not a "postmark." The sole envelope in evidence is postmarked August 17, not August 9.
Although the Bylaw does not require any specific method of mailing, if the Town mails an Order of Conditions issued under its Bylaw by regular mail, it is difficult to envision how the Town could ever prove timely issuance under its own Bylaw as any postmark would be on an envelope that is not in the Town’s possession. Even with mailing by certified mail, as the Bylaw provides "Date of Issuance" is "the date a permit is mailed, as evidenced by a postmark ...," the Town would be well served to not simply place Orders of Conditions in the United States Postal Service mail box located outside of Town Hall but rather obtain a postmarked sender’s receipt from a carrier or at a Post Office. See USPS Postal Operations Manual, Section 813.1.d.
Thus, because the Commission did not issue its decision within the statutory twenty-one-day deadline, its Order of Conditions is without effect and DEP’s superseding order of conditions governs, regardless of whether the Bylaw is more restrictive. See Garrity v. Conservation Comm’n of Hingham, 462 Mass. at 790-91; Oyster Creek Preservation, Inc. v. Conservation Comm’n of Harwich, 449 Mass. at 865. This conclusion renders moot the parties’ cross motions for judgment on the pleadings on Count II of Zizza’s complaint seeking review in the nature of certiorari of the Commission’s decision.
ORDER FOR JUDGMENT
For the foregoing reasons, it is hereby ORDERED that judgment enter on Count I of the complaint in favor of plaintiff John Zizza. It is DECLARED and ADJUDGED that the Commission’s Order of Conditions was "issued" within the meaning of the Wetlands Protection Act and the Falmouth Wetlands Protection Bylaw and Regulations on August 17, 2017, beyond the statutorily mandated twenty-one-day deadline. Accordingly, it is without effect, such that the DEP Superseding Order of Conditions controls the Project.