RIAD RISKALLA & Another v. TOWN OF NORTH READING & Others. ( 2024 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-720
RIAD RISKALLA & another1
vs.
TOWN OF NORTH READING & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Riad and Nabila Riskalla, appeal from a
judgment upholding an enforcement order issued against them by
the conservation commission (commission) of the town of North
Reading (town). The order requires the plaintiffs to remove
certain unpermitted improvements on their residential property
because they violate the town's wetlands protection bylaw
(bylaw). The plaintiffs brought an action in the nature of
certiorari under G. L. c. 249, § 4, in the Superior Court. On
1 Nabila Riskalla.
2North Reading Conservation Commission; and Leah Basbanes,
Lori Mitchener, Tomas Sanchez, Melissa Campbell, Lauren Beshara,
James Cheney, and Randall Mason, all in their capacities as
agents or members of the conservation commission.
cross motions for judgment on the pleadings, the judge granted
the commission's motion, affirmed the commission's decision, and
dismissed the complaint. Because the commission did not act
arbitrarily and capriciously or otherwise abuse its discretion
in issuing the enforcement order, we affirm.
Background. The purpose of the Wetlands Protection Act,
G. L. c. 131, § 40 (act), "is to preserve and protect coastal
and other wetlands bordering rivers and other bodies of water."
Garrity v. Conservation Comm'n of Hingham, 462 Mass. 779, 785
(2012). The act's protections extend to activities in areas
"within 100 feet" of a protected area, known as the buffer zone,
if, "in the judgment of the issuing authority," the activity
will alter an area subject to protection. 310 Code Mass. Regs.
§ 10.02(2)(b) (2014). Municipal conservation commissions have
authority to issue enforcement orders to correct violations of
the act and associated regulations. G. L. c. 131, § 40; 310
Code Mass. Regs. § 10.08. The town's bylaw protects "[a]ny
freshwater wetland" and "[a]ny land within 100 feet of [the
wetland]," bylaw § 1.3 (2001), and accompanying regulations
provide that improvements to a property may not encroach upon
twenty-two percent or more of protected lands. Id., § 4.7(c).
In 2010, the town issued an order of conditions to the
prior owners of the property in connection with their planned
construction of a four-bedroom house. The order of conditions
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directed the owners, upon completion of the work, to provide the
commission with an "As-Built plan" of the improvements to the
property, including "[a]ny deviations from the approved plans,"
and also to request a certificate of compliance from the
commission based upon that plan. The plan submitted with the
2010 application included only drawings for a four bedroom house
and did not contemplate additional improvements around the house
structure. The house was built, and the town's building
inspector issued a certificate of occupancy in May 2013. No
certificate of compliance from the commission was ever issued.
The prior owners did not submit an "As-Built plan" of the
property to the commission until November 2021. The "As-Built
plan" showed a paved driveway, walkway, outdoor patios, fire
pit, and small sports court, none of which were included in the
2010 application. At a hearing on December 8, 2021, the
commission determined that the "As-Built plan" did not match the
plan submitted to the commission in 2010, and the improvements
exceeded and violated the buffer zone encroachment limit. The
next day, the commission issued an enforcement order requiring
the removal of the improvements by June 30, 2022. Meanwhile,
the prior owners had entered into a purchase and sale agreement
with the plaintiffs on October 20, 2021. On December 10, a
representative of the plaintiffs reached out to the commission
and said that "[t]hey are a bit confused as to what actually
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needs to be done. Who is supposed to be doing the work?" The
plaintiffs acquired the property by quitclaim deed on December
14.
On March 9, 2022, the commission reviewed correspondence
from another representative of the plaintiffs stating that they
did not wish to comply with the 2021 enforcement order but
rather wanted "to find a way to keep [the] sport court, patio,
and . . . to create resolutions for the board to agree to in
order to allow this." On April 19, 2022, the commission issued
a new enforcement order to the plaintiffs. The order contained
identical requirements to the order issued on December 9, 2021,
requiring removal of the paved driveway, walkway, patios, fire
pit, and sports court. The plaintiffs then filed this action.
Discussion. "In a review under certiorari, the court is
limited to correcting substantial errors of law apparent on the
record adversely affecting material rights" (quotation omitted).
FIC Homes of Blackstone, Inc. v. Conservation Comm'n of
Blackstone, 41 Mass. App. Ct. 681, 684 (1996). We review a
decision allowing a motion for judgment on the pleadings de
novo. Delapa v. Conservation Comm'n of Falmouth, 93 Mass. App.
Ct. 729, 733 (2018). "In an action in the nature of certiorari
challenging a wetlands permit decision made by a conservation
commission pursuant to a local by-law, our review is limited at
most to whether the commission's decision is supported by
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substantial evidence in the administrative record, whether the
commission's action was arbitrary and capricious, and whether
the commission committed an abuse of discretion or other error
of law." Id. at 733-734.
The plaintiffs argue that they need not comply with the
2022 enforcement order issued against them because, under the
statute of limitations set forth in G. L. c. 131, § 91, the
commission was required to issue any enforcement order within
two years after the improvements were built, presumably around
the same time construction on the house was completed in April
2013. The act, however, provides that "[a]ny person" who
acquires property on which work has been done in violation of
the act "shall forthwith comply with any such order or restore
[the property] to its condition prior to any such violation;
provided, however, that no action . . . shall be brought . . .
unless such action is commenced within three years following the
recording of the deed." G. L. c. 131, § 40. In Conservation
Comm’n of Norton v. Pesa, 488 Mass. 325, 326 (2021), the Supreme
Judicial Court held that this three-year statute of repose is
"personal" to each new owner. That means that once a property
"changes hands," the act "permits the commission to commence an
action against the subsequent owner, so long as it does so
within three years of the triggering event -- the recording of
the deed or date of death by which title was acquired." Id. In
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this case, the commission had three years after the date the
plaintiffs acquired the property, December 14, 2021, to issue an
enforcement order against them. Its April 19, 2022 order was
therefore timely.3
Nor is the 2022 enforcement order void due to what the
plaintiffs call the "surprise exemption" in Pesa. No such
exemption exists. In Pesa, the Supreme Judicial Court explained
that "[i]nterpreting the statute of repose to apply personally,
and to permit enforcement against each subsequent owner," is
consistent with the act's recording scheme because both orders
of conditions and certificates of compliance must be recorded in
the registry of deeds or in the Land Court. Pesa, 488 Mass. at
336. This recording scheme prevents potential purchasers of a
property from being surprised that "any work accomplished under
[an order of conditions] may have been done in violation of the
order." Id. As in Pesa, the plaintiffs here cannot claim to
We do not address the validity of the 2021 enforcement
3
order because the plaintiffs failed to commence this action
within sixty days of its issuance, as G. L. c. 249, § 4,
requires, see McLellan v. Commissioner of Correction, 29 Mass.
App. Ct. 933, 934 (1990), and because, in any event, the
validity of the 2021 enforcement order against the prior owners
is immaterial to the authority of the commission to issue a new
order against the plaintiffs as subsequent owners. General Laws
c. 131, § 40, allows a conservation commission to bring an
enforcement order "within three years of each subsequent
acquisition of property" even if it could not have lawfully
issued an order against the prior owner. Pesa, 488 Mass. at
335.
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have been surprised by the 2022 enforcement order because the
order of conditions issued in 2010 and the commission did not
issue a certificate of compliance thereafter. Indeed, the
record shows that the plaintiffs knew about the enforcement
order issued against the prior owners on December 9,
2021 -- less than a week before the plaintiffs closed on the
property -- and in fact inquired at that time as to who had to
remove the encroaching improvements. As discussed supra, the
2022 enforcement order issued against the plaintiffs is
identical in substance to the 2021 order issued against the
prior owners.
The judge also properly rejected the plaintiffs' argument
that, under the doctrines of collateral estoppel and promissory
estoppel, the town's issuance of a certificate of occupancy in
May 2013 precludes any enforcement action against them now. As
a factual matter, a certificate of occupancy is distinct from a
certificate of compliance, which the 2010 order of conditions
required to be obtained based on the "As-Built plan" of the
house's construction, and there is no requirement that the
commission issue a certificate of compliance before the town's
building inspector issues a certificate of occupancy. As a
legal matter, because no pertinent issue of fact or law was
"actually litigated and determined by a valid and final
judgment" in a prior action, collateral estoppel does not apply.
7
McLaughlin v. Lowell, 84 Mass. App. Ct. 45, 56 (2013), quoting
Alba v. Raytheon Co., 441 Mass. 836, 841 (2004). More
generally, "[e]stoppel theories generally do not apply against
the government," Harrington v. Fall River Hous. Auth., 27 Mass.
App. Ct. 301, 308 (1989), and they are particularly disfavored
where their application would "negate requirements of the law
intended to protect the public interest [quotation omitted]."
O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555, 558
(1986). Because the relief that the plaintiffs seek would
negate the purpose of the wetlands protection bylaw and
regulations, which promote flood and erosion protection,
biodiverse habitats for wildlife, water purification processes,
and other public benefits, principles of estoppel do not apply.4
Finally, we agree with the judge that the plaintiffs'
claims under the Massachusetts Civil Rights Act, G. L. c. 12,
§§ 11H, 11I, fail because they do not allege that any individual
government official interfered or attempted to interfere with
4 The plaintiffs also cite a letter from an environmental
consulting firm that contends that the total impervious surface
of the improvements is 17.6%, under the twenty-two percent
encroachment limitation set forth in the regulations. The
letter is dated October 12, 2023, well after the Superior Court
entered judgment and the plaintiffs filed their notice of
appeal. Because in a certiorari proceeding "judicial review is
confined to the record of the administrative proceedings below,"
Mello Const., Inc. v. Division of Capital Asset Mgmt., 84 Mass.
App. Ct. 625, 631 n.12 (2013), we do not consider the letter or
the plaintiffs' arguments concerning it now.
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their constitutionally protected rights, and because a
municipality is not a "person" that may be sued under that law.
See Howcroft v. Peabody, 51 Mass. App. Ct. 573, 591-592 (2001).
See also Batchelder v. Allied Stores Corp., 393 Mass. 819, 822-
823 (1985). Further, the plaintiffs' assertion that the
enforcement order violates various constitutional provisions is
generally unsupported by reasoned analysis or relevant authority
and, as such, fails to rise to the level of adequate appellate
argument as required by Mass. R. A. P. 16 (a) (9) (A), as
appearing in 481 Mass. 1628 (2019). See Cameron v. Carelli, 39
Mass. App. Ct. 81, 85-86 (1995). In addition, the plaintiffs'
claim that the enforcement order amounts to an unconstitutional
taking fails because they have suffered neither the physical
occupation or invasion of their property nor the deprivation of
all of its economically viable use. See Lucas v. South Carolina
Coastal Council, 505 U.S. 1003, 1015-1016, 1028 (1992); Blair v.
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Department of Conservation & Recreation, 457 Mass. 634, 639, 641
(2010).5
Judgment affirmed.
Order denying motion for
reconsideration affirmed.
By the Court (Meade,
Hershfang & Toone, JJ.6),
Clerk
Entered: October 8, 2024.
5 To the extent we have not specifically addressed any of
the plaintiffs' arguments, we have considered all of them and
see no basis on which to disturb the judgment.
6 The panelists are listed in order of seniority.
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