FRANK N. GOBBI, JR., Trustee v. TOWN OF DEDHAM & Another.

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
22-P-165
FRANK N. GOBBI, JR., trustee,1
vs.
TOWN OF DEDHAM & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Frank N. Gobbi, Jr., as trustee of the Gobbi
Revocable Trust, appeals from a Superior Court judgment
upholding the decision of the Conservation Commission of Dedham
(commission) to deny his after-the-fact application for a
stormwater management permit. On appeal, the plaintiff contends
that the commission improperly applied revised regulations that
were adopted while his application was pending and acted
arbitrarily and capriciously in denying his permit application.
The plaintiff also appeals from an order denying his
postjudgment motion to expand the record to include meeting
minutes that purportedly evince the commission's intent to
1 Of the Frank N. Gobbi Revocable Trust.
2 Conservation Commission of Dedham.
exempt pending applications from the revised regulations. We
affirm.
Background. 1. Regulatory framework. In 1996, the town
of Dedham (town) adopted a stormwater management bylaw (bylaw)
to "protect, maintain and enhance the public health, safety,
environment and general welfare of the Town by establishing
minimum requirements and procedures to control the adverse
effects of soil erosion and sedimentation, construction site
runoff, [and] increased post-development stormwater runoff and
nonpoint source pollution associated with new development and
redevelopment." To advance that objective, the bylaw requires
residents to obtain a stormwater management permit (permit) from
the commission before commencing any project that alters or
disturbs land area in excess of 500 square feet. The permitting
process allows the commission to monitor and manage the impact
of such projects on the community.
Pursuant to its authority under the bylaw, the commission
adopted stormwater rules and regulations governing project
requirements and the permitting process. Two different versions
of the regulations are relevant here: the version adopted in
2008 (2008 regulations) and the version adopted on November 15,
2018 (2018 regulations). Both versions require redevelopment
projects to improve existing conditions at the project site and
comply with stormwater management standards issued by the
2
Massachusetts Department of Environmental Protection (DEP
standards). DEP standard 3 requires projects to include
infiltration measures that minimize or eliminate the loss of
annual recharge to groundwater. DEP standard 4 states that
projects must include stormwater management systems designed to
remove eighty percent "of the average annual post-construction
load of Total Suspended Solids (TSS)." DEP standard 7 states
that redevelopment projects need only comply with DEP standards
3 and 4 to "the maximum extent practicable."
The 2018 regulations introduced several new requirements
that did not appear in the 2008 regulations. Specifically,
§ 5.A.3 of the 2018 regulations requires projects be designed to
"[r]etain the volume of runoff equivalent to, or greater than,
two (2) inches multiplied by the total post-construction
impervious surface area on the site" (hereinafter, "the two-inch
storage requirement"). Section 5.A.3 additionally requires all
development projects to include a stormwater management system
that removes eighty percent of TSS, thus negating the exemption
in DEP standard 4 allowing redevelopment projects to remove
eighty percent of TSS to "the maximum extent practicable."
Under the 2018 regulations, after a permit application is
submitted, the commission "may request the submission of
additional information," including, but not limited to,
information "to describe the site, the work, or the effect of
3
the work on water quality and runoff volume." The commission is
authorized to approve a permit application "upon finding that
the proposed project will protect water resources and meets the
objectives and requirements" of the bylaw, or to deny the
application "due to non-compliance with Design Standards."
2. The project. The plaintiff owns a commercial property
in the town that consists of a retail building, parking lot, and
plantings. In June of 2018, the town's building commissioner
learned that the plaintiff planned to regrade and repave
portions of the property's parking lot (project), purportedly to
meet certain requirements of the Americans with Disabilities
Act.3 On June 12, 2018, the town's conservation agent, Elissa
Brown, sent the commissioner an e-mail message stating that she
had determined, pursuant to the commissioner's request, that the
project would require a permit.4
On August 2, 2018, the plaintiff's project engineer, John
Glossa, of Glossa Engineering, Inc., sent Brown a letter
summarizing the plan for the project (project plan) and stating
his opinion that the work would not trigger the permit
requirements of the bylaw. On August 8, 2018, Brown sent Glossa
3 The record is unclear as to how the building commissioner
learned of the project.
4 There is no evidence that the plaintiff was informed that Brown
had evaluated the site and determined the project would require
a permit until August of 2018, as discussed infra.
4
an e-mail message explaining that a permit would, in fact, be
required, because the project involved regrading more than 500
square feet of land. Over the next few days, Glossa and Brown
exchanged several additional e-mail messages disputing the
necessity of a permit, unwavering in their respective positions.
On August 15, 2018, the plaintiff commenced the project
without a permit. The commission issued a stop work and
enforcement order to the plaintiff the following day. On August
17, 2018, the commission received a letter from the plaintiff's
attorney disputing the necessity of a permit and stating that
the plaintiff intended to continue the project without one.
3. The application. On August 28, 2018, the plaintiff
submitted an after-the-fact permit application (application)
seeking retroactive approval of the project.5 The project plan
accompanying the application did not include any proposed
stormwater infiltration measures or indicate how it would
otherwise improve existing conditions.
The commission held nine public hearings on the application
between September 6, 2018, and March 21, 2019.6 During the
5 The application stated that approximately 18,434 square feet of
the property had already been repaved and regraded and that
another 3,938 square feet of the property would need to be
repaved and regraded to complete the project.
6 The hearings were held on September 6, 2018; September 20,
2018; October 4, 2018; October 18, 2018; November 1, 2018;
5
public hearing process, the plaintiff resisted numerous
directives to incorporate stormwater improvements into the
project plan and failed to comply with the commission's requests
for information it needed to assess whether the project plan was
feasible and consistent with the requirements of the regulations
and bylaw.7
The plaintiff's resistance to the commission's directives
is perhaps best demonstrated by the way he and his
representatives responded to the commission's requests to add
stormwater infiltration measures to the project plan. At the
first public hearing, on September 6, 2018, Glossa stated that
infiltration measures would be "a potential liability" given the
property's proximity to railroad tracks and status as a former
coal yard. At the same hearing, Glossa was informed that even
if there was coal in the soil (the commission noted the absence
of documentation to that effect), it was not considered a
hazardous material that would exempt the plaintiff from the
infiltration requirements of the regulations. Glossa and the
December 6, 2018; December 20, 2018; February 21, 2019; and
March 21, 2019.
7 The evidence in the record strongly suggests that the
plaintiff's recalcitrance was rooted in a belief that he was, or
should be, exempt from permit requirements. The plaintiff
unsuccessfully raised this issue in his Superior Court appeal
and, in briefing the instant appeal, did not challenge the
Superior Court judge's determination that a permit was required.
6
plaintiff nevertheless continued at subsequent hearings to cite
the potential presence of coal in rejecting the commission's
directives to incorporate infiltration measures.
At a hearing on December 6, 2018, a representative of the
plaintiff told the commission that infiltration "would not be
impactful" due to the poor quality of the soil at the property.
The commission responded that the regulations did not exempt the
property from infiltration requirements based on its soil type,
and advised the plaintiff and his representative of various ways
the project could be engineered to alleviate concerns about
groundwater breakout and contamination. Yet at the next
hearing, on December 20, 2018, Glossa stated that due to the
presence of residual coal in the property's soil, "he would not
design the project to the specifications of the Commission," and
that "in his opinion" the commission's recommendation to
incorporate infiltration measures in the upper parking area of
the property "would not be feasible." In response, a
commissioner told Glossa that Glossa had "a responsibility to do
his due diligence, and prove [his] claims," by using a licensed
site professional to review the soil data and support the claims
of potential contamination. He never did.
Glossa submitted a new project plan in early January of
2019, accompanied by a letter stating that the plan did "not
show [the] storm water recharge that was recommended by the
7
Commission" because "[i]t would be extremely expensive . . . to
install a viable recharge system," "[g]iven the impermeable soil
conditions . . . , it is likely that any recharge system will
fail in a short period of time," and, due to the "possibility"
that recharging stormwater would "cause severe problems
including sink holes and a discharge to the ground of harmful
materials." Following a January 17, 2019, meeting between the
plaintiff's representatives, the commission, and the town's
building and engineering departments, Glossa revised the project
plan again on January 23, 2019 (final project plan).
At a hearing on February 21, 2019, Glossa pointed out that
the final project plan included a subsurface galley that would
accommodate .10 inches of recharge. When a commissioner advised
him that the soil type at the property required .30 inches of
recharge and noted that the final project plan did not satisfy
the two-inch storage requirement that had been introduced in the
2018 regulations, Glossa responded that the plaintiff "was
opposed to the 2-inch storage requirement." At the same
hearing, Glossa told the commission that the plaintiff was
"unwilling" to clean a drainpipe bisecting the property, as the
town's engineering department and commission had requested. The
plaintiff also refused to comply with the commission's request
that he determine the exact location of the drainpipe, claiming
that it would be an "undue hardship."
8
On March 21, 2019, the commission voted to close the public
hearing.8 The commission issued a decision denying the
plaintiff's application the same day.
4. The commission's decision. The commission found that
the plaintiff had not met his burden to demonstrate "by a
preponderance of the credible evidence that the work proposed in
the application will not have unacceptable adverse or cumulative
effect on the resource areas protected" by the bylaw, and that
he had likewise failed to submit "adequate evidence to show the
effect the proposed project may have on the surface water or
ground waters of the Commonwealth, and/or the storm drainage
system of the Town of Dedham." The commission cited, among
other things, the plaintiff's failure to provide evidence of
abutter notification or submit a site plan with a precise
location of the drainpipe bisecting the property. See 2018
regulations, § 6.B and appendix B.
The commission also determined that the final project plan
did not comply with the DEP standards as required by § 5.A of
the 2018 regulations. Specifically, the commission found that
the final plan did not comply with DEP standard 3, because it
did not use infiltration to minimize loss of annual recharge to
8 The decision denying the plaintiff's application says the
hearing was closed on March 7, 2019, but the minutes indicate
the hearing was closed on March 21, 2019.
9
groundwater "to the maximum extent practicable"; DEP standard 4,
because the surface water management system the plaintiff had
proposed only removed forty-four percent of TSS, and therefore,
did not meet the requirement to remove eighty percent of TSS "to
the maximum extent practicable"; DEP standard 7, because the
final plan did not meet the other DEP standards to the "maximum
extent practicable"; and DEP standard 10, because the plaintiff
had failed to file an illicit discharge compliance statement.
Further, the commission concluded that the final plan did
not meet the requirements of § 5.A.3 of the 2018 regulations
because it did not fulfill the two-inch storage requirement or
remove eighty percent of TSS. The commission stated that it had
been unable to determine whether the final project plan met the
third requirement of § 5.A.3, for stormwater management systems
to remove sixty percent of the average annual load of total
phosphorus, because the plaintiff had failed to provide any
calculations regarding the removal of total phosphorus at the
property.
The commission also denied the plaintiff's request for
waivers exempting him from requirements to remove eighty percent
of TSS and to locate all existing stormwater utilities because
the plaintiff "did not provide any supporting information"
concerning the hardship he had alleged those requirements
imposed.
10
5. Superior Court appeal. On May 17, 2019, the plaintiff
brought a certiorari action in Superior Court seeking judicial
review of the commission's decision and asserting claims to
quiet title and for trespass related to the drainpipe under the
property. In turn, the commission asserted counterclaims for
injunctive relief, to enforce the bylaw, and for a civil
penalty.
On November 6, 2020, a Superior Court judge issued an order
denying the plaintiff's motion for judgment on the pleadings and
allowing the commission's cross motion with respect to the
plaintiff's certiorari claim and the commission's counterclaim
for injunctive relief. In his memorandum of decision, the judge
rejected the plaintiff's contention that the commission
improperly applied the 2018, rather than the 2008, regulations,
and held that the plaintiff's application and requests for
waivers had been properly denied. The parties later agreed to
stay the injunctive order pending the outcome of the instant
appeal and stipulated to the dismissal of the claims for
trespass, quiet title, and a civil penalty. Judgment entered on
July 28, 2021, and the plaintiff timely appealed.
In January of 2022, the plaintiff filed a motion in the
Superior Court pursuant to G. L. c. 30A, § 14 (4), and Mass. R.
A. P. 8 (e) (1), as appearing in 481 Mass. 1611 (2019), seeking
to expand the administrative record to include minutes of the
11
commission's November 15, 2018, meeting. In support, the
plaintiff asserted that the minutes evinced the commission's
intent to apply the 2018 regulations prospectively -- that is,
only to applications received from November 15, 2018, forward.
A second Superior Court judge denied the motion on January 31,
2022. Again, the plaintiff timely appealed. The two appeals
were consolidated.
Discussion. 1. Motion to expand the record. The
plaintiff challenges the Superior Court order denying his motion
to expand the record and encourages us to consider the November
15, 2018, meeting minutes sua sponte as part of the record in
the instant appeal.9 See Mass. R. A. P. 8 (e) (1) (appellate
court may cure material omissions from record on motion of
parties or on its own motion). Assuming we obliged, at most,
the minutes would support the proposition that the 2018
regulations applied to new applications, without regard to
pending applications. Thus, the absence of the minutes from the
record would not be a material omission, as the minutes are
silent on the applicability of the 2018 regulations to pending
applications such as the plaintiff's application.
9 Ordinarily, we would review the order denying the plaintiff's
motion to expand the record for an abuse of discretion. See
Commonwealth v. Roxbury Charter High Pub. Sch., 69 Mass. App.
Ct. 49, 53 (2007). The plaintiff's request that we consider the
minutes sua sponte appears to be an attempt to circumvent this
deferential standard of review.
12
Nevertheless, the plaintiff's contention that the minutes
should be included in the record is waived because it is
untimely. "It is implicit in [rule 8 (e)] and in the very
nature of the appellate process that any correction to the
record must take place before the appeal has been decided"
(emphasis added). Hamed v. Fadili, 408 Mass. 100, 104 (1990).
In this case, the plaintiff did not file his motion to expand
the record until January 5, 2022 -- well over one year after his
appeal of the commission's decision to the Superior Court was
decided (though judgment did not enter until July 28, 2021).
During oral argument, the plaintiff's counsel stated that she
discovered the November 15, 2018, minutes when she began
preparing for the instant appeal and "searched all the different
minutes to see if there was anything for when the actual
regulations were put into place." The plaintiff has offered no
valid reason why he could not have searched for the minutes, and
moved to expand the record to include them, earlier. See
Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 312-313
(2009).
Accordingly, the plaintiff's motion to expand the record
was properly denied, and our review of the commission's decision
must proceed on the same record on which the first Superior
13
Court judge based his decision.10 See Evancho v. Director of
Div. of Employment Sec., 375 Mass. 280, 283 (1978) (postjudgment
letter advising judge of document omitted from administrative
record "was not timely" and document could not be considered as
part of record on appeal). Cf. Commonwealth v. Aboulaz, 44
Mass. App. Ct. 144, 147 (1998) ("a rational system of further
appellate review best fulfills its function if both appellate
courts deal with the same record").
2. The commission's decision. a. Standard of review.
"We review the allowance of a motion for judgment on the
pleadings de novo." Boston v. Conservation Comm'n of Quincy,
490 Mass. 342, 345 (2022), quoting Kraft Power Corp. v. Merrill,
464 Mass. 145, 147 (2013). "When considering a case under
certiorari, the standard of review may vary according to the
nature of the action for which review is sought." Fafard v.
Conservation Comm'n of Reading, 41 Mass. App. Ct. 565, 567
(1996). "In the context of this review of a conservation
commission denial of a permit, we ask whether the commission's
action was arbitrary or capricious, based upon error of law, or
unsupported by substantial evidence." Conroy v. Conservation
10We acknowledge the defendants' contention that the plaintiff's
motion was untimely because Superior Court Standing Order 1-96
requires motions for leave to present additional evidence under
G. L. c. 30A, § 14 (6), to be brought within twenty days after
the administrative record is filed.
14
Comm'n of Lexington, 73 Mass. App. Ct. 552, 558 (2009). The
commission's selection between two conflicting evidentiary views
will not be disturbed on appeal as long as that selection was
reasonable. See Conservation Comm'n of Falmouth v. Pacheco, 49
Mass. App. Ct. 737, 739 n.3 (2000) (Pacheco).
b. Application of the 2018 regulations. We are not
persuaded by the plaintiff's contention that the commission
improperly applied the 2018 regulations and should have instead
applied the 2008 regulations that were in effect when he filed
his application.11 In the absence of a vested right, "[a] change
made in the law pending [an] application for a permit . . .
rather than the law existing at the time of filing is to govern
action on the application." R.V.H., Third, Inc. v. State
Lottery Comm'n, 47 Mass. App. Ct. 712, 716 (1999), quoting
Selectmen of Topsfield v. State Racing Comm'n, 324 Mass. 309,
11The plaintiff also contends that the 2018 regulations are
invalid because certain provisions conflict with the bylaw and
expand the scope of what the bylaw requires. The only time the
plaintiff raised this issue below was in a footnote of the
memorandum he submitted to the Superior Court in support of his
motion for judgment on the pleadings. Therein, the plaintiff
asserted that the "2018 Regulations are partially or entirely
invalid for reasons including their inconsistency with the
applicable Bylaws." The plaintiff then acknowledged that he had
yet to even examine the issue. Although we conclude that the
issue is not properly before us, see Ten Local Citizen Group v.
New England Wind, LLC, 457 Mass. 222, 232 n.15 (2010), and cases
cited, it is worth noting that the bylaw expressly states that
where there is a conflict between the bylaw and the regulations,
"the more stringent provisions shall apply."
15
314 (1949). Cf. Ziffrin, Inc. v. United States, 318 U.S. 73, 78
(1943) ("a change of law pending an administrative hearing must
be followed in relation to permits for future acts. Otherwise
the administrative body would issue orders contrary to the
existing legislation"). As explained below, there is no
evidence that the plaintiff had a vested right to have his
application considered under the 2008 regulations, and
therefore, the 2018 regulations were properly applied.
In Massachusetts, the mere filing of a permit application
does not give the applicant any vested rights to the issuance of
a permit. See Caputo v. Board of Appeals of Somerville, 330
Mass. 107, 111 (1953) ("The fact that the plaintiff filed his
application for a permit before the ordinance was amended gave
him no vested rights"); Spector v. Building Inspector of Milton,
250 Mass. 63, 71 (1924) (filing of permit application gave
plaintiff no vested rights because "petitioner held his property
subject at all times to every valid exercise of the police
power"); Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass.
App. Ct. 245, 249 (2010) (applicant "acquired no rights simply
by filing the permit application"). Instead, the right to a
permit vests "at the time the applicant is unconditionally
entitled to its issuance." Albahari, supra at 250.
Before the 2018 regulations were adopted on November 15,
2018, the commission had already held five public hearings on
16
the plaintiff's application. During each of those hearings,
members of the commission cited deficiencies with the project
plan that needed to be resolved before the plaintiff's
application could be approved. At the November 1, 2018,
hearing, which was the last hearing before the 2018 regulations
were enacted, the plaintiff had yet to incorporate required
infiltration measures into the project plan and was instructed
to continue working with the town's engineering department to
address its concerns about the drainpipe bisecting the property
and an oil and grit separator the plaintiff had proposed to
install to remove TSS. Because the plaintiff failed to submit
an acceptable plan before the 2018 regulations were enacted, he
had no vested right to a permit under the 2008 regulations. See
Albahari, 76 Mass. App. Ct. at 250.
Although exceptions to the general rule have been made to
prevent "manifest injustice," see Thorpe v. Housing Authority of
Durham, 393 U.S. 268, 282 & n.43 (1969), no threat of injustice
is present here. Section 246-4 of the bylaw permits the
commission to "adopt, and periodically amend," its rules and
regulations. Given the commission's authority to periodically
modify its regulations, it was unreasonable for the plaintiff to
assume that his application would be forever immunized from
regulatory changes, particularly where he did not submit his
final project plan until approximately two months after the 2018
17
regulations were adopted. Additionally, the commission's
request that the plaintiff fulfill criteria that were exclusive
to the 2018 regulations, such as the two-inch storage
requirement, further underscores the fact that the plaintiff
should have anticipated his application would be evaluated under
the 2018 regulations.
Accordingly, the 2018 regulations were properly applied.12
c. Denial of the plaintiff's application. There is no
merit to the plaintiff's assertion that his application was
improperly denied. We agree with the first Superior Court
judge's conclusion that the commission's decision to deny the
plaintiff's application was appropriate based on the plaintiff's
failure to comply with § 5.A.3 of the 2018 regulations alone.
Specifically, the final project plan did not fulfill the two-
12The cases the plaintiff relies upon in his brief, Biogen IDEC
MA, Inc. v. Treasurer & Receiver Gen., 454 Mass. 174 (2009), and
Fleet Nat'l Bank v. Commissioner of Revenue, 448 Mass. 441(2007), are readily distinguishable from this case. In Biogen,
454 Mass. at 191, the Supreme Judicial Court held that the
Treasurer of the Commonwealth could not retroactively apply
amended regulations requiring the plaintiff to factor a new
category of funds into its annual payments under abandoned
property laws. In Fleet, 448 Mass. at 450, the Supreme Judicial
Court held that the Commissioner of Revenue could not
retroactively apply a legislative amendment extinguishing the
right of taxpayers to receive interest on overpayments from the
date of the overpayment. Fleet and Biogen thus stand for the
proposition that an amended law cannot be applied to usurp
rights that were conclusively determined under the antecedent
version of the law. In this case, however, the plaintiff did
not vest any rights before the amended regulations were adopted.
18
inch storage requirement or remove eighty percent of TSS, and
the plaintiff failed to provide calculations necessary to
determine whether the final plan would remove the required sixty
percent of total phosphorus.
The plaintiff's contention that the commission's decision
was arbitrary and capricious because it lacked "any evidence" to
conclude that he failed to satisfy DEP standards 3 and 4 "to the
maximum extent practicable" lacks merit. As an initial matter,
the absence of evidence that the plaintiff failed to meet DEP
standards 3 and 4 did not establish that the plaintiff did, in
fact, satisfy those requirements. Because the burden of proof
rested with the plaintiff, the commission could reasonably
conclude that the requirements had not been met based on the
plaintiff's failure to submit sufficient evidence that they had.
With respect to DEP standard 3, which requires the use of
infiltration to minimize or eliminate the loss of recharge, the
Massachusetts Stormwater Handbook (handbook)13 states that
meeting the standard "to the maximum extent practicable" means
that:
"(1) The applicant has made all reasonable efforts to meet
the Standard;
"(2) The applicant has made a complete evaluation of all
possible applicable infiltration measures, including
environmentally sensitive site design that minimizes land
13The 2018 regulations require projects to comply with the DEP
standards "and accompanying Stormwater Management Handbook."
19
disturbance and impervious surfaces, low impact development
techniques, and structural stormwater best management
practices; and
"(3) If the post-development recharge does not at least
approximate the annual recharge from pre-development
conditions, the applicant has demonstrated that s/he is
implementing the highest practicable method for
infiltrating stormwater."
The plaintiff did not satisfy any of the foregoing standards
here. To the contrary, he repeatedly refused to consider, let
alone evaluate, the additional infiltration measures that were
recommended by the commission. Further, although the plaintiff
and his representatives cited fears of soil contamination in
rejecting the commission's recommendations, the plaintiff never
submitted evidence substantiating the claim that soil
contamination was a legitimate concern.
The plaintiff's assertion that Glossa's opinion was
sufficient to prove that he had met DEP standards 3 and 4 "to
the maximum extent practicable" is unpersuasive. The commission
was not required to credit Glossa's opinion, especially
considering that Glossa failed to hire a licensed site
professional to validate his claims, as the commission had
specifically requested. A commissioner also noted at one point
that Glossa had provided inconsistent reasons in support of his
opinion, further casting doubt on its validity. This, coupled
with the failure to hire a licensed site professional, provided
ample reason to doubt Glossa's expertise and reliability. See
20
Pollard v. Conservation Comm'n of Norfolk, 73 Mass. App. Ct.
340, 349 n.10 (2008) ("An agency may justifiably reject an
expert's opinion on the basis of facts in the record that make
the rejection of the expert evidence reasonable, including facts
of a nontechnical nature . . . [and] where there are flaws in
the methodology or assumptions upon which the opinion depends or
where the opinion is based upon conjecture of guesswork").
The plaintiff also contends that denying his application
prevented him from "significantly enhanc[ing] stormwater
treatment at the Property," and thus contravened the purpose of
the bylaw. However, the purpose of the bylaw is not only to
control the effects of stormwater runoff and pollution, but to
"establish[] minimum requirements and procedures" applicable to
measures taken in furtherance of that objective. Because the
plaintiff failed to satisfy those minimum requirements, the
denial of his application did not contravene the purpose of the
bylaw.
On the record presented, the plaintiff has not sustained
his burden to establish the invalidity of the commission's
decision.14 See Garrity v. Conservation Comm'n of Hingham, 462
Mass. 779, 792 (2012).
14To the extent that the plaintiff's appeal raises other
arguments not discussed here, such as his challenges to the
commission's findings that he failed to notify abutters and
provide an illicit discharge statement, we have not overlooked
21
d. Denial of waiver requests. We discern no error in the
commission's denial of the plaintiff's waiver requests. The
plaintiff did not submit any documentation to substantiate his
claims that compliance with TSS removal requirements and
locating all existing stormwater utilities would impose an undue
hardship. See GreenRoots, Inc. v. Energy Facilities Siting Bd.,
490 Mass. 747, 756 (2022), quoting Mederi, Inc. v. Salem, 488
Mass. 60, 67 (2021) ("A decision is not arbitrary and capricious
unless there is no ground which reasonable persons might deem
proper to support it"). Moreover, even if the plaintiff had
substantiated his claims of hardship, the commission would still
have had the discretion to decline his request. See 2018
regulations § 1.E (stating that the commission "may" waive
strict compliance with certain requirements).
e. Injunctive relief. Last, the plaintiff contends that
the Superior Court did not have jurisdiction to grant injunctive
relief on the commission's counterclaim. The counterclaim was
brought pursuant to § 246-8(A) of the bylaw, which empowers the
commission to seek injunctive relief "in a court of competent
jurisdiction" against any person who violates the provisions of
the bylaw, "or any associated regulations, permit, notice, or
order issued thereunder . . . restraining the person from
those arguments, but conclude that they do not merit discussion.
See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
22
activities which would create further violations or compelling
the person to perform abatement or remediation of the
violation." Therefore, after the first Superior Court judge
determined that the plaintiff was not entitled to a permit under
the 2018 regulations and bylaw, he could properly order
injunctive relief for the commission on its counterclaim for
enforcement. See Pacheco, 49 Mass. App. Ct. at 744-745.
Judgment affirmed.
Order denying motion to
expand the record affirmed.
By the Court (Neyman,
Desmond & Grant, JJ.15),
Clerk
Entered: March 2, 2023.
15 The panelists are listed in order of seniority.
23