Certiorari Appeal Timeline Is A Trap For The Unwary

Posted by Richard Gallogly on January 27, 2012

In an "unpublished" decision in the case of Carney v. Town of Framingham (pdf) (further appellate review denied), a panel of the Appeals Court ruled that the statutory 60-day period for filing a certiorari appeal starts on the date the administrative agency takes its "last administrative action" – in this case a vote – not when the agency later reduces its decision to writing.

M.G.L. c. 249, § 4 provides that a certiorari petition must be filed within 60 days after the “proceeding complained of.”  In Carney, the Appeals Court panel noted that this term refers to the "last administrative action" taken by the agency.  On June 4, 2008, the Framingham Conservation Commission voted to amend a previously issued enforcement order.  The amended order issued on June 6, 2008.  On August 5, 2008 – 60 days after the written order, but 62 days after the commission's vote – the plaintiff filed its certiorari appeal in Superior Court.  The court granted the town’s motion to dismiss on the ground that the appeal was untimely, holding that it was the commission's vote – not its written decision two days later – that was the commission's "last administrative action" triggering the statutory appeal period.

This decision, which was issued pursuant to the Appeals Court's Rule 1:28 (pdf), and therefore is of limited precedential value, has particular relevance to wetland orders of conditions issued under local by-laws.  Frequently, conservation commissions will issue a written decision days or weeks after voting on a matter.  Interested parties should monitor agency proceedings closely, and be sure that they appeal within 60 days of the board's "last administrative action" – which may very well be its vote.

Supreme Court Case Could Curtail EPA Enforcement Authority

Posted by Johanna W. Schneider on January 13, 2012

This week the U.S. Supreme Court heard argument in a case that has the potential to change the way federal environmental statutes are enforced and how recipients of EPA administrative compliance orders respond to those orders.Priest Lake

Sackett v. EPA involves a couple who own a .63 acre undeveloped parcel near Priest Lake in Idaho.  In 2007, the Sacketts cleared and filled a portion of their property without a Clean Water Act (CWA) permit.  EPA determined that the fill violated the CWA because the parcel contained a jurisdictional wetland and issued an administrative compliance order directing the Sacketts to remove the fill and restore the parcel to its original condition.  The order also threatened financial penalties if the Sacketts failed to comply. 

The Sacketts sought pre-enforcement judicial review of the compliance order under the Federal Administrative Procedure Act, but were denied by both the District Court and the 9th Circuit on the grounds that pre-enforcement review is not available under the CWA.  Notably, neither the CWA nor any other major federal environmental statute except CERCLA contains an explicit prohibition on pre-enforcement review; most courts have, however, supported EPA’s view that these statutes contain an “implied bar” to such challenges.  The Sacketts sought certiorari review by the Supreme Court.

EPA takes the position that although it can issue compliance orders directing violators to get a permit and remedy any damage they caused, to enforce an order, the agency has to sue in federal court; it doesn't have the authority to take action against a violator on its own.  Thus, according to EPA, because the order issued to the Sacketts did not itself seek enforcement and was not a final judgment against the couple, at this point in the dispute, there is nothing for a court to review.  

The Sacketts – who, despite some conflicting evidence, maintain that they didn't know there were wetlands on their property - argue that lack of judicial review of the compliance order violated their due process rights.  During the argument, several justices appeared sympathetic to the Sacketts, with Justice Alito observing that, “if you related the facts of this case . . . to an ordinary homeowner, . . . most ordinary homeowners would say this kind of thing can’t happen in the United States.”

EPA has noted that it views compliance orders as a warning, and often uses them as a tool that allows the agency to press landowners to negotiate regarding mitigation of environmental harms.  EPA also contends that compliance orders actually help regulated parties comply with the CWA before risking potential civil liability in an enforcement action.  Supporters of the Sacketts, who include developers, corporations, utilities, libertarians and conservative members of Congress, characterize compliance orders as heavy-handed enforcement by EPA.

Sackett potentially has broad implications for enforcement actions and related litigation under federal environmental statutes.  If the Supreme Court holds that the Sacketts are entitled to pre-enforcement judicial review, the case will limit the usefulness of compliance orders as a streamlined means of enforcing environmental laws, as resolution of challenges in court inevitably will be time consuming.  On a related note, environmental groups have raised the prospect that pre-enforcement review could undermine the EPA’s ability to quickly address environmental emergencies.  Down the road, it will be interesting to see whether a decision against EPA in this case prompts Congress to clarify its intent with respect to compliance orders.  If it's the case that Congress did intend to bar pre-enforcement review under the CWA and other environmental statutes, in the event of an EPA loss in Sackett, Congress could (depending on the political winds) act to amend these statutes to mirror CERCLA’s express prohibition on pre-enforcement review.

The Supreme Court's decision is expected later this year.

Federal Wetlands Jurisdiction Still Murky

Posted by Michael Parker on December 19, 2011

The federal Clean Water Act (CWA) prohibits the discharge of pollutants from any point source into "navigable" waters of the United States without a Section 404 Permit issued by the Army Corps of Engineers (Corps).  Once this permit has been issued, the Environmental Protection Agency (USEPA) monitors permit compliance, sharing concurrent jurisdiction with the Corps.

DJB wetlands blog photoThere has been a longstanding jurisdictional problem stemming from the CWA's definition – and courts' and agencies' subsequent interpretations – of the term navigable waters.  The easy cases are rivers and streams that are clearly navigable; the more difficult cases lie in how much of the associated wetlands and more isolated waters are also subject to CWA jurisdiction.  As you can imagine, the Corps and USEPA view CWA jurisdiction broadly, while the regulated community complains that non-navigable waters are outside the CWA's ambit.  The issue was brought to a head when the Supreme Court's decision in SWANCC v. U.S. Army Corps of Engineers (pdf) quashed the Corps' attempt to exercise CWA jurisdiction, by way of the Migratory Bird Act, over a water-filled abandoned sand and gravel pit – a classic example of bad facts making bad law.  Further muddying the waters is the Supreme Court's 2006 plurality decision in Rapanos v. United States (pdf), which announced two conflicting tests to determine CWA wetlands jurisdiction:  Justice Scalia's continuous surface connection" test articulated in the plurality opinion, and Justice Kennedy's "significant nexus" test set forth in the concurring opinion. 

The Rapanos plurality test requires a wetland to have continuous surface connection, or "no clear demarcation between 'waters and wetlands.'"  Under this test a wetland encompasses "only those relatively permanent standing or continuously flowing bodies of water," placing outside of CWA jurisdiction "channels through which water flows intermittently . . . or [which] provide drainage for rainfall."  Justice Kennedy's significant nexus test does not rely on a physical barrier, but examines the wetlands' characteristics on a case-by-case basis to determine whether "the wetlands, either alone or in a combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable.'" 

Due to arcane principles regarding the interpretation of non-majority and concurring opinions, the First and Eighth U.S. Circuit Courts of Appeals have held that wetlands are subject to CWA jurisdiction if their characteristics satisfy either Justice Scalia's or Justice Kennedy's tests, while the Seventh and Eleventh Circuits apply only one test - Justice Kennedy's.  Recently, in United States v. Donovan (pdf), the Third Circuit joined the First and the Eight Circuits in applying both tests, causing a 3-2 split in the Circuits.  The obvious problem in all of this is uncertainty:  one test could result in CWA jurisdiction when the other would not.  Unfortunately, neither the Supreme Court nor Congress has shown any desire to step up and articulate clear guidelines for CWA wetlands jurisdiction.  Until then, CWA wetlands jurisdiction is as clear as mud.        

Conservation Commission's Late "Determination of Applicability" Is DOA

Posted by Donald Pinto on July 15, 2011

In a recent unpublished decision, an Appeals Court panel again strictly applied the 21-day deadline for conservation commission action under the state Wetlands Protection Act (WPA) (see related commentary here).  In Huie v. Conservation Commission of Scituate (pdf), the plaintiffs sought certiorari review of a Determination of Applicability (DOA) that the Scituate Conservation Commission issued with regard to their neighbor's beachfront property.  The Superior Court dismissed the plaintiffs' action on the ground that it had not been timely filed.  The Appeals Court panel affirmed, but on a different ground:  the Conservation Commission's failure to issue the DOA within 21 days of the landowner's request for it, as required by the WPA.  The panel noted that the DOA was postmarked 28 days after the landowner's request, and, citing the Supreme Judicial Court's 2007 decision in Oyster Creek Preservation v. Conservation Commission of Harwich (pdf), ruled that the DOA was therefore "a nullity."  This means that the town's wetlands by-law is no longer in play, and further proceedings will be governed solely by the WPA and any superseding determination that may be issued by the Massachusetts Department of Environmental Protection.

Appeals Court Awards Attorneys' Fees To Developer Harassed By "10 Citizens" Group

Posted by Daniel Bailey on February 09, 2011

The Appeals Court recently awarded nearly $20,000 in attorneys’ fees – the full amount sought – to a developer whose project was delayed for several years by the serial appeals of a so-called “10 Citizens” group opposed to the project.  (Disclosure:  I am real estate counsel to the developer, and my colleagues Don Pinto and Erica Mastrangelo handled the litigation, including protesters.jpgthe successful motion for attorneys’ fees).

The project is a mixed-use development on formerly contaminated land in Rockport, Massachusetts.  In February, 2007, the project received an approval known as an Order of Conditions (OOC) from the Rockport Conservation Commission.  The plaintiff “10 Citizens” group – not even one member of which actually lives in Rockport – twice attempted to appeal the OOC to the Massachusetts Department of Environmental Protection (DEP), using DEP’s administrative appeal process.  (Followers of development on the North Shore will no doubt recognize the name of the lead appellant, Stevan Goldin, who has filed appeals in many waterfront projects using this device).  DEP dismissed the group's administrative appeals, and in October, 2007, the group appealed those dismissals to Superior Court.  In October, 2008, the Superior Court granted our motion to dismiss the court appeal based on the group’s “unreasonable delay” in prosecuting the case.  The group then appealed that ruling to the Appeals Court, where we sought not only dismissal of this further appeal, but also an award of our client’s appellate attorneys’ fees on the ground that the appeal was frivolous and had been filed solely to further delay the project.  In a March, 2010 decision, the Appeals Court dismissed this further appeal and invited us to file a separate motion to recover our client’s attorneys’ fees.  We did so promptly, and last week the Appeals Court finally allowed that motion and awarded our client 100% of its fees – $19,689.20. 

It’s important to note that, while the statute that empowers all courts to impose sanctions for the filing of frivolous claims – M.G.L. c. 231, § 6F – creates a high, often insurmountable bar (the defendant must prove that the claim has no factual or legal support whatsoever and that it was brought in bad faith), there is a separate rule that gives the Appeals Court and the Supreme Judicial Court more leeway with respect to appeals.  Rule 25 of the Massachusetts Rules of Appellate Procedure, entitled “Damages for Delay,” simply says that if an appellate court decides that an appeal is frivolous, “it may award just damages and single or double costs to the appellee, and such interest on the amount of the judgment as may be allowed by law.”  It was this rule under which the Appeals Court awarded our client its appellate attorneys’ fees in the case at hand.

As far as we know, this is the first time a Massachusetts court has awarded attorneys’ fees to a developer as a sanction against a “10 Citizens” group for filing a frivolous appeal.  This will be a salutary development if it emboldens trial courts to more carefully scrutinize claims made by such groups (at least where it appears the group may be asserting groundless claims solely to hold up or kill a project), and if it deters citizens from blithely joining such groups (which often are organized by one or two highly motivated ringleaders like Mr. Goldin) without first satisfying themselves that the group’s claims have some factual and legal basis.  

SJC on Regulatory Takings: That Word Does Not Mean What You Think It Means

Posted by Robert Foster on October 17, 2010

It is a truth universally acknowledged that property owners don't like restrictions on how they may use their land.  It is a truth equally acknowledged, however, that state and local governments can enact laws and regulations — zoning bylaws, environmental rules, nuisance statutes — that limit what landowners can do with their land.  Just when a law intended to protect the public goes too far, and limits the private use of land too much, so that it becomes a "regulatory taking" requiring compensation under the U.S. and Massachusetts constitutions, is a question that has long bedeviled both the U.S. Supreme Court and our own Supreme Judicial Court (SJC).

The most recent response came in the SJC's August 26, 2010 decision in Blair v. Dept. of Conservation and Recreation (pdf).  The Blair case concerned the Watershed Management Act, which prohibits alterations to land within 200 feet of the banks of waters within the watershed system that supplies drinking water.  The Blairs own a 2.87-acre parcel on Demond Pond in Rutland that contains a small cottage and a 60-foot sand beach on the pond.  They were barred from expanding the beach and constructing a retaining wall because that portion of their property is in the buffer zone.  The Blairs asserted that this restriction on their use of their property was a regulatory taking.

The SJC disagreed.  Relying on existing U.S. Supreme Court and SJC precedent, the court found that the statute on its face was not a taking, and did not constitute a physical taking of the property since it didn't create an easement — it simply restricted use.

The main issue was whether the statute effected a regulatory taking.  This hinged on whether the regulation as applied to the Blairs' property deprived them of all economically viable use of their parcel of land.  This question further hinges on how you define the "parcel."  The U.S. Supreme Court has said that under the 5th Amendment, the relevant parcel is the entire parcel, not just the portion affected by the regulation.

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Lyon v. Duffy

Posted by Donald Pinto on October 08, 2010

Plaintiffs bought a single-family residence and learned after closing that the property was subject to a recorded Order of Conditions (OOC) that required a substantial amount of work on an ocean-facing coastal bank.  The prior owners had not completed the required work.  The plaintiffs sued their lender's attorney, who had certified that they were receiving good title to the property.  The Appeals Court held that the unfulfilled OOC did not constitute a defect in title, saying in relevant part, "[i]t is well established that building or zoning laws are not encumbrances or defects affecting title to property . . ." and "[a]n individual can hold clear title to a parcel of land, although the same parcel is valueless or considered economically unmarketable bnecause of some restriction or regulation on its use."  

Lyon v. Duffy (pdf), Appeals Court decision dated September 29, 2010.

Missed Deadline Deprives Conservation Commission of Jurisdiction, Even if Project Plans Change

Posted by Daniel Bailey on September 27, 2010

DJB wetlands blog photoOn August 26, 2010 in Regan v. Conservation Commission of Falmouth (pdf), a divided Appeals Court panel held that the Falmouth Conservation Commission didn't have authority to review revised development plans where the Commission had earlier failed to act within the 21 days required under the local wetlands by-law.  The permitting process in Regan was not unusual.  The landowners applied for permission to construct a pier, ramp and floating dock.  The Commission denied the request,  but unfortunately (for the Commission) mailed the denial on the 22nd day after the close of the public hearing.  The landowner filed a request for a superseding order of conditions and appealed the local by-law denial to Superior Court.

The landowner then redesigned its plan during the course of the superseding order proceedings.  DEP issued a superseding order approving the revised plan.  The landowners asked the Commission to reconsider its earlier denial.  The Commission held a public hearing but decided to reject the revised plans.  This time, however, the Commission acted within 21 days following the close of the hearing.

The Superior Court found for the Commission, on the basis that the landowner had waived any procedural issue related to the first decision by going back to the Commission for approval of the revised plans.  The Appeals Court reversed, however, based on the Supreme Judicial Court's 2007 decision in Oyster Creek Preservation v. Conservation Commission of Harwich (pdf).  The Appeals Court read Oyster Creek to mean that anytime a conservation commission fails to act within 21 days after the public hearing, it loses jurisdiction entirely – even over any changes to the development plan – and the superseding order of conditions controls.

Regan seems to be a very favorable decision for the landowner.  Read literally, it means that once a conservation commission loses jurisdiction, the superseding order of conditions controls, even if the landowner makes material changes to the development plans.  In this case the commission lost jurisdiction because it failed to timely act.  What happens, however, if the commission loses jurisdiction because a Superior Court finds that the local by-law is no broader than the Wetlands Protection Act?  Does Regan mean that in such a case the local commission has entirely lost jurisdiction over any changes to the project that occur during the superseding order proceedings?  Counsel for landowners will certainly argue that the commission has lost jurisdiction.