Contents:

INTRODUCTION

I. DISMISSAL

A. Dismissal Based Upon Lack of Jurisdiction

1. Untimeliness

2. Lack or loss of standing

3. Lack of subject matter jurisdiction

4. Failure to state a claim upon which relief can be granted

5. Mootness

1. Lack of prosecution

2. Withdrawal of appeal or stipulation of dismissal

II. SUMMARY DECISION

A. Making the Motion

B. Opposing the Motion

C. Deciding the Motion

A. The Basics: What, When and How

B. Deciding the Motion

APPENDIX A: Decisions on Dismissal

APPENDIX B: Decisions on Summary Decision

APPENDIX C: Decisions on Directed Decision

FOOTNOTES

Introduction

The DEP Adjudicatory Hearing Rules, 310 CMR 1.01 (1995 rev.) ("the Rules"), provide for three types of dispositive motions in adjudicatory appeals: motions to dismiss, motions for summary decision, and motions for a directed decision. As in civil practice, the dispositive motions share a similar objective--accelerating the decision of one or more claims that present no factual issues, or that are improperly brought, unprovable, unproven or legally unsustainable. The grounds for these motions differ, however, and they are appropriate at different stages of an adjudicatory appeal.

When it is made properly and effectively, a successful dispositive motion saves time and spares unnecessary effort by the parties and the Administrative Law Judge; in short, it promotes the "just and speedy determination" contemplated by the Rules. It may do this by allowing the issuance of a Final Decision in an adjudicatory appeal without conducting a full-blown evidentiary hearing, for example if there is no genuine or material factual issue to resolve, or if the appeal presents nothing that the Department can decide.

When it is mistimed or supported inadequately, however, a dispositive motion can be a monument to time wasting, file papering and budget busting.

The material below is intended to furnish a quick overview of dispositive motions under the Rules: what they are, what they do, what Rules apply to them, how and when they work, and what doesn't work. More detail is available from DEP adjudicatory decisions, some of which are cited here.

I. DISMISSAL

In a nutshell, the thesis of a motion to dismiss, or of an Administrative Law Judge's order to show cause why an appeal should not be dismissed, is that an adjudicatory appeal does not belong or has overstayed its welcome. There are two general grounds for dismissal that the Rules recognize and that non-appealing parties who move to dismiss an adjudicatory appeal tend to assert: lack of jurisdiction and lack of prosecution.

A. Dismissal Based Upon Lack of Jurisdiction

Dismissal for lack of jurisdiction may be sought and ordered on one or more of the following grounds.

1. Untimeliness. An appeal is untimely if it was not filed within the time to appeal that is prescribed by a statute or a Department regulation. Generally, the time to appeal begins to run when the Department issues a permit, an order or an administrative penalty. Generally, too, if the last day to appeal falls on a Saturday, Sunday, holiday or other day on which the Department is not open for business, the appeal period ends on the next business day. An untimely appeal must be dismissed. In unusual instances, an appeal filed after the last day for doing so may survive a motion to dismiss for untimeliness. That happens if the appeal clock never began to run on the appealing party (the petitioner) or started running later than was supposed, for example if the permit or order appealed from was not sent to the petitioner on the indicated date.1

2. Lack or loss of standing. A petitioner has standing if he or she has a right or a legitimate reason to appeal. A petitioner lacks standing if he or she has no statutory or Constitutional right to appeal, or if he or she is not aggrieved or is not substantially and specifically affected by the permit or order that is being appealing.

The permit, order or penalty being appealed may state who may appeal it; so, too, may the regulations under which the permit, order or penalty was issued.

3. Lack of subject matter jurisdiction. If the Department can't decide or determine what is being appealed, it lacks subject matter jurisdiction to decide the appeal. The Department cannot review enforcement orders issued by a Conservation Commission, for example, and an appeal from such an order would therefore be dismissed for lack of subject matter jurisdiction.

4. Failure to state a claim upon which relief can be granted.

The notice of claim for adjudicatory hearing--the filing that begins the appeal--must state what relief the petitioner seeks. Dismissal for failure to state a claim upon which relief can be granted is appropriate if the Department has no authority to grant or order what the petitioner wants, even if he or she wins the appeal.

A dismissal on this ground is also appropriate if the petitioner's claims are not stated clearly and concisely in the notice of claim for adjudicatory hearing, and are instead vague and ambiguous. In that case, however, dismissal is generally a two-step process. The petitioner will first be given an opportunity to correct a defective notice of claim for adjudicatory hearing. This opportunity comes in the form of an order to replead. A defective repleading invites the deferred dismissal for failure to state a claim.

5. Mootness. An appeal may be dismissed as moot (or "academic") if there is no longer a live issue, for example when a project allowed or denied by an appealed permit has been abandoned by the applicant.

B. Dismissal On Other Grounds

1. Lack of prosecution. A lack of prosecution dismissal is a sanction against a petitioner whose appeal is otherwise proper but who is alleged to have defaulted in a substantive way, meaning in a way that does not amount to merely "missing a step in the dance." A motion to dismiss for lack of prosecution seeks this ultimate sanction.

Theoretically at least, dismissal for lack of prosecution could be ordered in response to any of a number of possible defaults, including noncompliance with an order or a regulation, failure to respond to an order to show cause, not appearing for a prehearing conference, and failure to file prefiled testimony. The sanction is not automatic, however. A less drastic sanction can be granted if the Administrative Law Judge determines that dismissal is too harsh in the circumstances, although none of the alternative sanctions would be particularly welcome news either. Other possible sanctions include, for example, orders that restrict the defaulting petitioner's ability to prove facts, contest issues, or otherwise support his or her claims.

A petitioner's failure to file prefiled testimony is a substantive, and serious, default that is likely to result in a lack of prosecution dismissal; in essence, the petitioner has failed to show up for a hearing or present its case. Dismissal for lack of prosecution is also a likely result if the petitioner defies an order allowing an inspection of his or her land, since that conduct tends to prevent other parties from learning relevant facts needed to rebut the petitioner's claims.

2. Withdrawal of appeal or stipulation of dismissal. In contrast, a dismissal based upon the appeal's withdrawal by the petitioner (usually communicated in a letter to the ALJ, with copies to the other parties), or upon a stipulation of dismissal signed by all of the parties, is voluntary and is generally welcomed by all and opposed by none. A dismissal upon stipulation is often the product of a settlement by all of the parties to an adjudicatory appeal.

The withdrawal of an appeal requires ALJ approval, and approval results in a Final Decision dismissing the appeal as moot.

C. Applicable Rules: A Comparative Table

Which Rule covers which dismissal ground? The answer depends both on the basis for proposing dismissal and on whether dismissal is proposed by a party or by the Administrative Law Judge in an order to show cause. The table below correlates each of these factors with the appropriate dismissal rule.

LACK OF JURISDICTION 

            

            For untimeliness, mootness, lack or loss of petitioner's

            standing, or lack of subject matter jurisdiction (other than

            failure to state a claim).

            

     Where a party moves to dismiss.........310 CMR 1.01(11)(d)1

            

     Where the ALJ dismisses sua sponte.....310 CMR 1.01(5)(a)2 

            

     Old Rule: 310 CMR 1.01(7)(d)3 (1986 rev.)

            

For failure to state a claim.

            

    Where a party moves to dismiss..........310 CMR 1.01(11)(d)2

            

    Where the ALJ dismisses sua sponte......310 CMR 1.01(5)(a)2 

            

    Old Rule: 310 CMR 1.01(7)(d)3 (1986 rev.)

            

            LACK OF PROSECUTION

            For reasons other than withdrawal of appeal (e.g., failure 

            to file required documents; failure to respond to notices, 

            correspondence or motions; failure to comply with orders or

            schedules; or for otherwise demonstrating an intent not to 

            proceed with the appeal).

            

     Where a party moves to dismiss..........310 CMR 1.01(11)(d)1

            

       Old Rule: 310 CMR 1.01(7)(d)3 (1986 rev.)

            

     Where ALJ dismisses sua sponte, 

            

      as a sanction..........................310 CMR 1.01(10)(e)

            

       Old Rule: 310 CMR 1.01(7)(d)2 (1986 rev.)

            

            WITHDRAWAL OF APPEAL (by petitioner) [310 CMR 1.01(6)(e)]

            

            

        Old Rule: lack of prosecution, 310 CMR 1.01(7)(d)2        

            1986 rev.)

            

            DISMISSAL UPON STIPULATION OF ALL PARTIES [310 CMR 1.01(11)(d)1] 

            Old Rule: settlement, 310 CMR 1.01(11)(b) (1986 rev.)

            

SUMMARY DECISION

A party moving for dismissal challenges an appeal's legitimacy. A party moving for summary decision, in contrast, challenges an appeal's substance; it asserts that there is no factual issue to be decided, that no hearing is necessary, and that it is entitled to an accelerated decision in its favor as a matter of law.

A motion for summary decision tests for the presence of genuine and material factual issues--issues that cannot be decided without a hearing, in other words. Stated another way, the motion tests the need for a hearing. A hearing is not needed to determine irrelevant facts, or to determine relevant facts that are not seriously contested.

For these reasons a motion for summary decision (assuming that it is properly made) is made more appropriately before a hearing begins. Once the hearing is underway there is usually little if anything to be gained from debating whether there are factual issues to be heard. The focus shifts, instead, to whether the party having the initial burden of going forward (the petitioner in a permit appeal, for example) has sustained its direct case.2 The appropriate dispositive motion at that stage is a motion for a directed decision, discussed below (at Section III).

The procedural rule governing summary decision is 310 CMR 1.01(11)(f) (1995 rev.). In cases subject to the previous revision of the DEP Adjudicatory Hearing Rules, the summary decision rule is 310 CMR 1.01(7)(f) (1986 rev.). There is no significant difference between the 1986 and present versions of the summary decision rule.

A. Making the motion

A motion for summary decision must be made and supported as 310 CMR 1.01(11)(f) requires. What this means is that the moving party must show, using such material as competent affidavits, documentary evidence and materials obtained through discovery, that there is no genuine issue as to any material fact and that it is entitled to a final decision in its favor as a matter of law. Conclusory statements alone won't make this showing; neither will expressions of doubt about the merits of another party's position or its ability to prove a case.

The motion papers may consist of:

(1) a one or two page motion identifying the party making it ("the movant"), the claims on which summary decision is sought, a brief summary or listing of the grounds on which the motion is made, and a list of the supporting materials attached to the motion;

(2) a supporting memorandum presenting a summary of the relevant facts and the movant's reasoning and arguments, and any caselaw or other authority on which it relies;

(3) documents on which the movant relies in seeking summary decision; and

(4) affidavits supporting the motion.

If supporting affidavits are filed, they must, per 310 CMR 1.01(11)(f), "be made on personal knowledge" and must "set forth such facts as would be admissible in evidence in Massachusetts courts." Supporting affidavits must also "show affirmatively that the affiant is competent to testify to the matters stated in the affidavit" and have attached to them "[s]worn or certified copies of all papers or parts of papers" to which they refer.

Multiple or split motions for summary decision are strongly disfavored as a matter of administrative economy. A rare exception is where a second motion for summary decision (after the failure of the first one) clearly makes disposal of the entire appeal possible. A party that intends to file a motion for summary decision should assume that the ALJ will entertain only one such motion, and is thus well advised to make it a good one. It should also be timed sensibly. It makes no sense to file a motion for summary decision when the hearing is about to begin. As a practical matter, there is no assurance that a last-minute motion for summary decision can be decided in time to head off an unnecessary hearing. Partly to avoid this problem, summary decisions (and motions to dismiss) are "frontloaded" into the prehearing process, meaning that the Prehearing Conference Order will require that such motions be filed and served before prefiled testimony is due, often within a short time after the prehearing conference is held.

B. Opposing the motion

Responding papers--those filed by a party opposing a motion for summary decision--must be filed with the Docket Clerk and served on the other parties within 14 calendar days after the motion for summary decision is filed (under the 1986 Rules, the response time was 10 days). If the motion for summary decision is made and supported as the Rules require, the party opposing summary decision must:

(1) show "by affidavits or as otherwise provided" in the Rules "specific facts showing that there is a genuine issue for hearing on the merits"; in other words, the party opposing summary decision can't defeat the motion with unsupported assertions; or

(2) show, with good reason, that the party opposing summary decision "cannot present by affidavit facts essential to justify opposition to the motion" and requires a continuance to allow affidavits to be obtained or discovery to be conducted.

The opposing party need not show either of these things, and need not file any opposing papers at all, if the motion for summary decision is not made as the Rules require. The sufficiency of the motion is for the ALJ to determine, however. Few parties, consequently, have been willing to risk filing no opposing papers on the assumption that the ALJ will find the motion for summary decision to be deficient, even if the deficiency is obvious.

C. Deciding the motion

Issues of fact cannot be determined on a motion for summary decision; all that can be determined fact-wise is whether there are genuine and material factual issues that must be adjudicated via a hearing.

A motion for summary decision presents the ALJ with three gateway questions. The first two are (1) is the motion made and supported as the Rules require? and (2) if so, has the movant shown that the issues in question are not the subject of a genuine issue of material fact? If the answer to either question is "no," the motion should be denied. If the answer to both questions is "yes," the next question is whether the party opposing the motion has shown that any of the issues is the subject of a genuine and material factual dispute. A "yes" answer requires the motion's denial as to that issue. If the answer is "no," however, the issue in question can be decided summarily, as a matter of law.

Witness credibility is generally not weighed when a motion for summary decision is decided. If a case turns on credibility--whether the ALJ considers one party's witness on a particular factual issue to be more believable than another party's witness on the same issue--the motion should be denied.

A finding that an issue is not the subject of a genuine or material factual dispute does not mean necessarily that the movant prevails. It means only that the issue can be decided as a matter of law. The movant's papers must establish that, as a matter of law, the issue should be decided in its favor. If the record shows, otherwise, however, the movant may lose on the issue. Summary decision may thus prove to be a double-edged sword; 310 CMR 1.01(11)(e) provides that "[s]ummary decision, when appropriate, may be made against the moving party."

After the motion for summary decision and responding papers have been filed, the ALJ may (but is not required to) allow oral argument on the motion for summary decision if one or more of the parties requests it. If it is allowed, oral argument is not an evidentiary hearing and no witnesses testify. Instead, each party is given a short time to argue its position on the motion and, if the ALJ allows it, to present an even shorter rebuttal argument.

Oral argument is for the ALJ's benefit; it is not an invitation to a party or its representative to make a speech or read out loud what has been filed in writing. It gives the ALJ an opportunity to clarify points raised by the motion or by an opposing party's response. The ALJ may interrupt a party's argument to ask a question or request that a point be clarified.

A party appearing for oral argument should anticipate such interruption.

A summary decision "upon the whole case" (a full summary decision issued in the form of a Final Decision) makes a hearing (and, therefore, the filing of prefiled testimony) unnecessary. In a permit appeal, a full summary decision also results in the permit appealed from being made final, modified or vacated in accordance with the Final Decision.

A partial summary decision terminates further proceedings on the issues that are summarily decided; the scope of both the testimony and the hearing is therefore restricted to those issues that are not summarily decided.

III. DIRECTED DECISION / DISMISSAL FOR FAILURE TO SUSTAIN CASE

A. The Basics: What, When and How

After the petitioner files and serves its prefiled testimony (or at the close of its live direct testimony if it is not prefiled) an opposing party may move to dismiss one or more of the petitioner's claims for failure to sustain a direct case. The ALJ may also order the petitioner to show cause why such a dismissal should not issue. A dismissal of this sort is a directed decision; "directed decision" and "dismissal for failure to sustain a case" have the same meaning in DEP adjudicatory appeals. The applicable rule is 310 CMR 1.01(11)(e) (1995 rev.) ("the directed decision rule"); its predecessor was 310 CMR 1.01(7)(d)1 (1986 rev.).

The directed decision rule assumes that the petitioner (the "initiating party" in the 1986 version) has the burden of presenting its direct case first. That is usually the case, especially in permit appeals, but there are exceptions.

One of these may occur in a wetlands permit appeal. Assume, for purposes of illustration, that the Department issues a superseding order of conditions denying a project proposed by an applicant. The applicant appeals the denial by filing a notice of claim for an adjudicatory hearing. The Wetlands Protection Regulations provide that the party contesting the Department's position has the burden of going forward, per the Wetlands Protection Regulations, see 310 CMR 10.03(2), meaning that its direct case must present "at least some credible evidence from a competent source" in support of its position. In our scenario that party is initially the applicant, who is also the petitioner by virtue of having started the appeal. Assume further that the petitioner-applicant and the Department reach agreement on permitting a revised project but another party--an intervenor, for example--opposes the project revision.

The intervenor displaces the applicant as the party contesting the Department's position. It now has the initial burden of going forward and it, rather than the applicant, will present its case first. The applicant--our original petitioner--can then file a motion for a directed decision once the intervenor prefiles its direct case. True, 310 CMR 1.01(11)(e) provides only for directed decision motions at the close of the petitioner's direct case, but in our scenario the applicant is no longer functioning as the petitioner. That notwithstanding, the Rules allow any party to make a motion seeking "any order or action consistent with law and with 310 CMR 1.01 that will assist in resolving issues expeditiously," 310 CMR 1.01(11)(a)1. That rule would make the applicant's directed decision motion possible even if 310 CMR 1.01(11)(e) did not.

The Rules give less responding time to a party opposing a motion for a directed decision than they do to a party opposing a motion for summary decision. Papers opposing a motion for a directed decision must be filed and served within seven business days after the motion is filed. See 310 CMR 1.01(11)(a)1 [Motions- General Requirements- Presentation and Objection to Motions]; 310 CMR 1.01(3)(c) [Computation of Time].

The Rules do not prescribe the contents of a motion for a directed decision or of papers opposing this relief. This is very much a matter of common sense. There are several questions that both the motion papers and the opposing papers should answer clearly.

The first question is "what are the issues to be adjudicated?" Generally, these issues are identified in the prehearing conference report, although issues may have been eliminated, added or restated after the prehearing conference by agreement or by orders and rulings issued by the ALJ.

The second question is "which party had the relevant evidentiary burden on each of these issues?" The relevant evidentiary burden is usually the initial burden of going forward, since most motions for a directed decision are made after prefiled direct testimony has been filed; usually, too, the party that was required to file its prefiled testimony and exhibits first has the initial burden of going forward. If the motion is made after all of the parties have filed their prefiled testimony and exhibits, or after witnesses have been cross-examined, there is more in the record on which to weigh the sufficiency of a party's case than its prefiled direct testimony--its rebuttal testimony can be taken into account, for example--and so the relevant burden may be both the burden of going forward and the burden of proof. It may also be a shifted burden. If the petitioner sustained its burden of going forward on an issue in a permit appeal, for example, the issue may have shifted to another party (the applicant, if it is not the petitioner, or the Department) to come forward with countervailing evidence; at that point, the petitioner with the initial evidentiary burden, who is usually at the receiving end of a motion for a directed decision, may itself make the motion.

Assuming that the party with the relevant evidentiary burden--Party X--has now been identified, the third question is "what testimony and other evidence did Party X present on each of the issues?" It is helpful to summarize who Party X's witnesses were, what they observed or concluded, and the observations or other facts on which the witnesses based their conclusions or opinions. References to pages and paragraphs where the summarized testimony can be found are also helpful. Party X's relevant documents should also be summarized; if they are maps or photographs, it may be useful to make marks on legible copies to highlight areas or features that feature prominently in Party X's testimony.

The fourth question is "did Party X sustain its burden on each of the issues?" If the movant argues that Party X did not sustain its burden of going forward, it will want to show how or why X's case presented no evidence from a credible source in support of its position on one or more issues. It may also want to identify what proof was missing from X's direct case--perhaps the testimony of a needed expert, perhaps observations or field data to support a bare conclusion--and why that is fatal to its sufficiency. Party X, on the other hand, will want to show that its direct case presented sufficient evidentiary support for its position.

A motion for a directed decision is not an opportunity to supplement one's case. Both the moving and opposing party should focus on the sufficiency of a case that has already been placed in the record of the proceeding. There is consequently little or no justification for either the motion or the opposing papers to include new affidavits or other new evidence. New material may be stricken if its receipt would allow a party to evade an expired deadline for filing testimony and exhibits.

B. Deciding the Motion

A directed decision on an issue may be granted where the party having the burden of going forward has failed to present some credible evidence in support of its position. That support must be found within the four corners of the party's direct case meaning, in most instances, within its prefiled testimony and exhibits.

Contents of prefiled testimony that invite a directed decision against the party who filed it include unsworn statements, factually unsupported or poorly supported conclusions, expert-type opinion testimony unsupported by expert qualification, lay opinion unsupported by observations, and legal opinion or argument. Failure to address issues for adjudication that were identified in the Prehearing Conference Report also invites an adverse directed decision.

Historically, few parties sought dismissal for failure to sustain a case even though the 1986 Rules revision made this relief available, and there was almost no adjudicatory caselaw on such dismissals until 1994. Directed decision motion practice has since increased. The increase coincided with the Department's efforts to reduce an adjudicatory appeal backlog, in significant part by imposing adjudicatory timelines and adopting a "judge-driven process" approach to ensure a more timely and orderly disposition of cases.

While directed decisions are still infrequent, parties to adjudicatory appeals are more likely to be aware of this remedy than they were several years ago, and are more likely to seek it than they were formerly. In view of this it has been the regular practice, since the present DEP Adjudicatory Hearing Rules became effective in July, 1995, to include deadlines for filing directed decision motions in the schedule established at the prehearing conference.

Most of the directed decisions granted thus far have been prompted by the absence of any evidence supporting a petitioner's claims or the position it has taken on an issue to be adjudicated. A directed decision may also be granted, however, against a party even though it sustains its burden of going forward with some credible evidence. Several directed decisions have been based upon a petitioner's failure to sustain its case by a preponderance of the evidence (a standard misstated in earlier decisions as one of "substantial evidence"). In those cases the motion for a directed decision was made after all of the parties had filed their respective cases, including both prefiled direct and rebuttal testimony.

At that stage, however, a directed decision may be harder to come by as a practical matter. It may result in an insignificant saving of effort. The record may not become much more complex if witness cross-examination is allowed. Conflicting testimony may make it more likely that the Final Decision will turn on witness credibility, something that is easier to evaluate after the witnesses have been seen and heard. In that circumstance there is certainly no error in allowing cross-examination. If, after all of the evidence is in and the witnesses have been cross-examined, it is clear that the petitioner has shown no right to relief on its claims as a matter of law, a directed decision can still be granted.

A full directed decision ends the hearing; a partial directed decision terminates further hearing proceedings as to one or several of the issues that are decided directly, and the hearing proceeds only on the remaining issues. In a permit appeal, a full directed decision against the petitioner results in a Final Decision dismissing the petitioner's appeal for failure to sustain its case, and the finalization of the permit or permit denial from which the petitioner appealed.

Adjudicatory decisions on motions to dismiss are legion; some examples are cited and summarized below.3

1. DISMISSAL FOR LACK OF PROSECUTION

Matter of Erickson, Docket No. 90-099, Final Decision (February 2, 1993), reconsideration denied (May 6, 1993), aff'd sub nomine Erickson v. Department of Department of Environmental Protection, Memorandum and Order Pursuant to Rule 1:28 (Mass. App. Ct., October 5, 1995).

Wetlands enforcement order appeal dismissed when, after an Administrative Law Judge granted the Department's motion for discovery by entry upon land, the petitioner landowner refused to allow such discovery.

Matter of Clark, Docket No. 94-005, Final Decision (October 4, 1994).

Appeal dismissed because petitioner (1) failed to file prefiled testimony when it was due, and (2) submitted unsworn documents and letters instead of testimony following an order to show cause why the appeal should not be dismissed.

Matter of Cormier Construction Co., Docket No. 93-071, Final Decision, 1 DEPR 159 (June 30, 1994).

Appeal dismissed because the petitioner failed to file the full written text of its witness' direct testimony, and instead filed only a summary of it.

Matter of Samoset Auto Service, Inc., Docket No. 94-003, Final Decision- Order of Dismissal (May 24, 1994).

Appeal dismissed when the petitioner did not respond to a motion to dismiss.

Matter of President and Fellows of Harvard College, Docket No. 88-192, Final Decision- Order of Dismissal (April 15, 1993), reconsideration denied (June 25, 1993).

Wetlands permit appeal dismissed after persistent failure by petitioners to file prefiled testimony, which they attributed to a dispute with their consultants; petitioners' offer to file testimony for the first time only after they filed a late motion for reconsideration of the dismissal was too little, too late.

Matter of Ruggiero, Docket No, 89-077, Decision and Order on Motion to Dismiss (February 26, 1993).

Petitioner's belated attempts to respond to discovery requests and orders sufficed to stave off dismissal for lack of prosecution, but earned it an order of preclusion.

Matter of Weber, Docket No. 89-031, Final Decision- Order of Dismissal (February 17, 1993).

Appeal dismissed when petitioner did not appear for the scheduled Prehearing Conference or respond to a subsequent order to show cause why the appeal should not be dismissed.

2. DISMISSAL FOR LACK OF JURISDICTION

a. Untimeliness

i. Untimely adjudicatory appeal

Matter of Massachusetts Bay Transportation Authority (Canton Viaduct Rehabilitation Project), Docket No. 97-060, Final Decision- Order of Dismissal, 4 DEPR 105 (July 21, 1997).

Appeal was filed on date shown by postmark on envelope in which the notice of claim for adjudicatory hearing was mailed, rather than on the earlier date appearing on the request itself; accordingly, the Conservation Commission's appeal was timely. As the appeal was mailed to the applicant on the same postmark date, it was timely served upon the applicant.

Matter of Grannis, Docket No. 96-019, Final Decision- Order of Dismissal, 3 DEPR 99 (May 22, 1996).

Title 5 variance appeal filed beyond the 21-day appeal period dismissed as untimely.

Matter of Lenk, Docket No. 95-077, Final Decision, 3 DEPR 18 (February 6, 1996).

A copy of the Department's wetlands superseding determination of applicability was not sent to petitioner Conservation Commission. While that tolled the Commission's time to appeal, the toll ended on the day that the Commission received, from a second-hand source, a copy of the cover letter accompanying the superseding determination. The cover letter fully communicated all information that the superseding determination contained. Even when the 10-day appeal period was computed from that later date, however, the Commission's appeal was filed after the appeal period expired and was therefore dismissed as untimely.

Matter of Papscun, Docket No. 95-076, 2 DEPR 233 (November 8, 1995)

Mailing of wetlands superseding determination of applicability to petitioner's business address--the address furnished on his original request for determination of applicability--rather than to his environmental consultant or to his home address where he preferred to receive mail, was not ineffective service and did not toll petitioner's time to appeal the superseding determination. The appeal was therefore dismissed as untimely.

Matter of Bianco, Docket No. 93-063, 2 DEPR 227 (November 7, 1995)

Failure to mail a copy of a wetlands superseding order of conditions to an abutter who identified herself and requested denial of the proposed project during the superseding order review process tolled her time to appeal the superseding order. Her appeal was timely commenced within ten days from the date on which she called the Department, learned that the superseding order had been issued, and requested that a copy be sent to her.

Matter of Massachusetts Bay Transportation Authority, Docket No. 94-084, Final Decision, 2 DEPR 11 (December 23, 1994).

Under Wetlands Program Policy 88-4 (in effect from April 11, 1988 until March, 1995, when the Department did not reissue it as part of its program policy package] the applicant was presumed prejudiced by the petitioner's failure to serve a wetlands appeal upon it. The presumption was not rebutted in this wetlands variance appeal. Even though the applicant received constructive notice of the appeal four business days after the appeal period expired, it relied reasonably upon the apparent lack of an appeal by issuing a notice of contract for the public works project in question (an interchange for the Old Colony Railroad restoration) and preparing the public works contract for execution.

Matter of Cormier Construction Co., Docket No. 93-071, Decision and Order on Motion to Dismiss (November 23, 1993).

Motion to dismiss wetlands permit appeal for lack of timely service on other parties denied; certified mail receipts, together with petitioner's uncontradicted representation of service, showed timely service of the appeal upon the Conservation Commission and the applicant within the ten day appeal period prescribed by the Wetlands Protection Regulations (at 310 CMR 10.05(7)(j).

Matter of City of Gardner Department of Municipal Grounds, Docket No. 90-265, Decision and Order on Motion to Dismiss (October 15, 1993).

Motion to dismiss civil administrative penalty appeal as untimely denied; petitioner's simple letter objecting to the penalty, filed within the 21-day penalty appeal period, sufficed to commence the appeal; the formal notice of claim for adjudicatory hearing that petitioner's counsel filed afterward was a pleading amendment rather than a late-filed appeal, and was allowed as such.

ii. Untimely pre-adjudicatory proceeding

Matter of Cross Point Limited Partnership, Docket No. 95-088, Final Decision, 3 DEPR 82 (April 30, 1996), reconsideration denied, 3 DEPR 161 (July 22, 1996).

Petitioners' wetlands permit appeal was dismissed because their earlier request to the Department for a superseding order of conditions denying applicant's proposed project was untimely. The ten-day period prescribed by the Wetlands Protection Regulations for filing a request for a superseding order after the local conservation commission issued an order of conditions for the proposed project [see 310 CMR 10.05(7)(c)] is jurisdictional and cannot be extended. Petitioners' time to request a superseding order may have been tolled because they did not receive notice of the applicant's original permit filing with the Conservation Commission (the notice of intent) or because the Conservation Commission's order of conditions for proposed project was not sent to them and they learned about it belatedly. Even if this tolled the time period for filing a superseding order request, however, the petitioners did not request a superseding order of conditions within ten days after they actually received a copy of the Conservation Commission's order of conditions.

Matter of Heras, Trustee, Irwin Road Realty Trust, Docket No. 94-103, Final Decision- Order of Dismissal, 2 DEPR 147 (July 5, 1995).

Petitioners' reliance upon the Conservation Commission's incorrect computation of time to file a request for a wetlands superseding order of conditions was unreasonable; the request was therefore properly dismissed as late, and that lateness was a jurisdictional defect barring further project review via an adjudicatory appeal.

b. Lack of Standing

Matter of Massachusetts Highway Department (Charles River Crossing), Docket No. 96-079, Decision and Order on Motion to Dismiss, 3 DEPR 216 (December 2, 1996), renewal and reargument denied, 4 DEPR 4 (January 8, 1997), confirmed by Final Decision, 4 DEPR 10 (February 7, 1997).

A city lacked standing as an aggrieved person to challenge a waterways license allowing construction of the Charles River Crossing portion of the Central Artery/Tunnel Project. It alleged no harm to any property it owned and it lacked any regulatory authority under M.G.L. c. 91 with which the project would interfere. It also lacked the requisite personal stake to pursue, as a representative of the public interest, claims that the license and the project violated the Department's Waterways Regulations. The city also lacked standing to appeal as an "affected municipality" since the Department's Waterways Regulations, 310 CMR 9.00 (1990 rev.) allowed an appeal only by specified municipal officials who submitted written comments during the public comment period on the waterways license application, none of whom had filed such comments on the city's behalf. The city did have standing, however, to pursue its claim (rejected ultimately on the merits) that M.G.L. c. 91, 14, second clause, allowed it to veto the proposed bridge.

Matter of Shwartz, Docket No. 96-075, Ruling on Motions to Dismiss, 3 DEPR 226 (December 20, 1996).

Motion to dismiss waterways license appeal for lack of standing denied. While failure to file written comments on the license application or to request intervention during the public comment period waives appeal rights under the Department's Waterways Regulations [see 310 CMR 9.13(4)(c)], petitioners' failure to do these things resulted in no such waiver because they did not receive notice of the license application and public comment period.

Matter of Massachusetts Highway Department (Routes 7/20), Docket Nos. 96-036, 96-041, Ruling on Motion for Summary Decision, 3 DEPR 203 (October 30, 1996).

A town lacked standing as an aggrieved person to appeal a wetlands variance allowing the widening of a state highway in an adjoining town based upon the project's traffic impacts, since those impacts were not within scope of interests identified by the Wetlands Protection Act. The town could, however, intervene in a ten residents group's appeal of the variance.

Matter of Town of Nantucket Marine Dept., Docket No. 96-023, Decision and Order re Standing, 3 DEPR 178 (August 20, 1996).

An unincorporated association lacked standing to appeal a wetlands superseding order of conditions. Although named members of the association had authority to pursue claims on behalf of the association and its membership, they failed to specify how the association or its membership would be affected adversely by the project in question. Named members could intervene collectively, however, as a ten citizens group to protect the environment in an appeal brought by other individual petitioners.

Matter of Town of Hull, Docket Nos. 95-068, 95-069, Decision and Order re Dismissal, 3 DEPR 53 (March 25, 1996), confirmed by Final Decision, 3 DEPR 196 (October 15, 1996).

An unincorporated association lacked standing to appeal a wetlands superseding order of conditions, as it neither identified its members nor asserted that any of them was authorized to pursue an appeal on behalf of the members or the association.

Matter of Clean Harbors Kingston Facility Corp., Docket No. 93-077, Final Decision, 1 DEPR 385 (June 13, 1994).

Petitioner lacked standing as an aggrieved person to appeal a groundwater discharge permit issued to a private water supplier as it could not show the requisite unique injury. It was uncontradicted that the petitioner's home was serviced by a municipal water supply and that the facility in question was not within the water supply's zone of groundwater contribution.

Matter of Labrie Stone Products, Inc., Docket No. 93-066, Final Decision- Order of Dismissal, 1 DEPR 41 (February 11, 1994).

A ten residents group lost standing to appeal when 13 of its 18 identified members withdrew and its requisite numerosity was not restored by adding new members to the group.

Matter of Burnham Land Trust, Docket Nos. 90-077, 90-078, 90-080, Decision on Motion to Dismiss and for a More Definite Statement (June 6, 1991).

A conservation commission and water supply board of town #1 had standing as aggrieved persons to appeal a wetlands permit for development in town #2 in an area adjacent to the towns' common boundary and to a lake located in both towns that was a public water supply for town #1.

c. Lack of Subject Matter Jurisdiction

Matter of Valovcin, Docket No. 96-062, Final Decision, 3 DEPR 210 (October 31, 1996).

Petitioner challenged Department's superseding determination that Beach Association's proposed walkway would not alter a wetland resource area on ground that walkway would encroach partially on her right of way. Appeal dismissed, since superseding determination did not authorize construction on petitioner's property and Department lacked jurisdiction to adjudicate property disputes.

Matter of Carls, Trustee, Annex Realty Trust, Docket No. 89-302, 2 DEPR 247 (December 15, 1995).

Claim by applicant appealing wetlands superseding denial order that it had contractual right to use abutting town property to provide compensation for flood storage loss resulting from proposed work was dismissed, since Department could not determine property rights or resolve contractual disputes in an adjudicatory appeal.

Matter of DiOrio Bros., Docket No. 89-004, Final Decision- Order of Dismissal, 2 DEPR 240 (November 17, 1995).

Notice of noncompliance issued by Department was not appealable. The notice simply warned of noncompliance and stated the deadline for coming into compliance, but did not determine the recipient's rights or duties.

d. Failure to State a Claim

Matter of B & M Fitzgerald Builders, Inc., Docket No. 97-081, Decision and Order on Motion to Dismiss, 4 DEPR 183 (October 24, 1997).

Although it was not a model pleading, abutters' notice of claim for adjudicatory hearing articulated a sufficient core wetlands claim regarding flood damage prevention--that proposed homes allowed by appealed superseding order of conditions would cause floodwater to drain onto abutting properties.

Matter of Massachusetts Bay Transportation Authority (Canton Viaduct Rehabilitation Project), Docket No. 97-060, Final Decision- Order of Dismissal, 4 DEPR 105 (July 21, 1997).

Petitioner Conservation Commission's assertion that Amtrak, rather than MBTA, was really the project applicant and that MBTA filed notice of intent for proposed railroad work to avoid project review under local wetlands bylaw because it was exempt from such review failed to state a claim on which relief could be granted. Even if the Commission's factual assertions were accepted as true, the Department could not determine local wetlands bylaw issues.

Matter of T & M Realty Corp., Docket No. 96-088, Final Decision, 4 DEPR 49 (March 27, 1997).

Conservation Commission's appeal of wetlands superseding order of conditions dismissed for failure to state a claim on which relief could be granted. The Commission could not contest the applicant's delineation of bordering land subject to flooding, because it had approved the delineation in a previous, and still-valid, determination of applicability. In addition, since the Wetlands Protection Regulations protected rare species habitat only in certain wetlands resource areas and not in buffer zones to such areas, the Commission's claim that the project would disrupt passage by rare turtle species across the buffer zone of bordering vegetated wetlands presented nothing that could be adjudicated in a wetlands permit appeal.

Matter of Town of Falmouth Department of Public Works, Docket No. 93-032, Decision and Order on Motion to Dismiss, 1 DEPR 217 (September 2, 1994).

A claim may be dismissed as legally insufficient if it appears beyond doubt that the petitioner is entitled to no relief on it even if its factual allegations are taken as true and it is given the benefit of all inferences. The claim may also be dismissed if it raises issues beyond the scope of what may be adjudicated, and/or if alleged wetlands impacts are remote, accidental, speculative or otherwise based upon conclusion rather than fact. In this appeal of a wetlands superseding order allowing the extension of a public highway, a claim that the extension was improperly designed and would cause cars to careen off into surrounding wetlands was dismissed for failure to state a claim on which relief could be granted. The claim was purely conclusory; in addition, the Department could not adjudicate the claim even if it were factually supported, since the legislature prescribed an exclusive procedure for determining the layout, alteration or relocation of a town way.

Matter of Cormier Construction Co., Docket No. 93-071, Decision and Order on Renewed Motion to Dismiss, 1 DEPR 32 (February 7, 1994).

In a wetlands permit appeal, the applicant renewed its motion to dismiss for failure to state a claim after the petitioner filed a more definite statement. The petitioner's repleading identified at least one statutory wetland interest (flood control) that the proposed project would allegedly harm, and furnished grounds for this assertion (the location of the proposed compensatory flood storage area and filling on the site). Neither the restated claims' alleged lack of merit nor the appeal's alleged unlikelihood of success was relevant to the repleaded claims' sufficiency.

Matter of Cormier Construction Co., Docket No. 93-071, Decision and Order on Motion to Dismiss (November 23, 1993).

Petitioner ordered to file and serve a more definite statement of its claims, because its notice of claim for adjudicatory hearing did not identify clearly and concisely the grounds on which it alleged that the superseding order of conditions it challenged was not consistent with the Wetlands Protection Act or Regulations.

e. Mootness

Matter of Callahan, Docket No. 95-004, Final Decision, 3 DEPR 225 (December 20, 1996).

Unappealed Superior Court decision sustaining project denial under local wetlands bylaw made futile any project review by the Department under the Wetlands Protection Act, since the project could not comply with the standard wetlands permit condition requiring compliance with local laws; accordingly, the superseding order of conditions allowing the project was vacated and the appeal of the superseding order was dismissed as moot.

Matter of Dragone, Docket No. 95-070, Decision on Motion to Dismiss, 2 DEPR 226 (November 1, 1995).

Petitioners' failure to appeal to court the portion of a wetlands determination of applicability that was issued under the local wetlands bylaw did not render moot their appeal of the portion made under the Wetlands Protection Act, in view of significant differences between the bylaw and Act as to regulatory scope and wetland resource area definitions.

Matter of Bombara, Trustee, Buttermilk Bay Realty Trust Associates, Docket No. 88-190, Final Decision, 2 DEPR 158 (July 20, 1995).

Following (1) a prior Final Decision vacating a wetlands superseding order as abandoned after the successor applicant lost the subject property through foreclosure, (2) a decision granting reconsideration of the Final Decision on motion of a bank that foreclosed on the property and substituting the bank as applicant, the superseding order was again vacated, and the appeal was again dismissed, this time for mootness. Even though 40 months had elapsed since it took title through foreclosure, the bank-applicant had failed to obtain the required local septic system approval or to diligently pursue the issuance of a final order of conditions for the project allowed by the superseding order of conditions.

Matter of Crafts, Docket No. 88-255, Final Decision (December 27, 1994)

An unquestionably final local wetlands bylaw denial made it impossible for the proposed project to comply with wetlands General Condition 3, which requires compliance with all applicable federal, state or local statutes, ordinances bylaws or regulations; accordingly, the superseding order of conditions allowing the project was vacated, and the appeal of the superseding order was dismissed as moot.

3. WITHDRAWAL DISMISSALS

Matter of Busby, Docket No. 96-039, Final Decision- Order of Dismissal, 4 DEPR 1 (January 1, 1997).

An abutter appealed a wetlands superseding determination of applicability, claiming that its scope was too limited and that it should have identified all of the wetlands resource areas on the property in question rather than only the areas for which the owner had sought a determination. The Administrative Law Judge issued an order to show cause why the appeal should not be dismissed for failure to state a claim, and the parties briefed the issue. At that point the abutter moved for leave to withdraw its appeal. The motion was denied and the appeal was dismissed, instead, for failure to state a claim for relief. The motion to withdraw was filed too late and after too much effort had been expended in determining the sufficiency of the abutter's claim. Moreover, the availability of the relief requested on appeal--a more expansive determination of applicability than the original requesting party had sought--was an important issue and its determination here, made possible by the parties' briefing, would be helpful in other appeals where similar relief was or could be sought.

While the principles governing summary decision do not vary from case to case, the decisions themselves are factually unique. They are most useful, therefore, as illustrations of how summary decision principles are applied in specific circumstances rather than as predictors of likely outcomes in future cases.

1. FULL SUMMARY DECISION GRANTED

Matter of Town of Sharon Recreation Dept., Docket No. 96-115, Final Decision, 4 DEPR 151 (September 29, 1997),

A summary decision in this appeal approved a proposed final order of conditions for a town ballfield that was agreed upon by the Department and town applicant but not by the petitioner. The petitioner filed no response to the motion for summary decision, but additional project conditions that she had requested earlier were considered as if they were meant to be such a response. The proposed additional conditions were insufficient to raise a genuine issue of material fact barring summary decision. The additional conditions were not shown to be necessary or feasible, or were not within the scope of conditioning that could be ordered under the Wetlands Protection Act--for example, a requested prohibition of sound and lighting equipment use at the ballfield, and a requested ban on golfing.

Matter of American-Norwegian Fish Farm, Inc., Docket No. 87-187, Final Decision, 4 DEPR 47 (March 27, 1997).

A town was granted summary decision in its appeal of a waterways license allowing the applicant's proposed aquaculture project, and the license was vacated. It was undisputed that the applicant had refused to apply for a wetlands permit. The applicant was precluded from relitigating the need for a wetlands permit in view of an unappealed final decision against it on this issue in a prior wetlands permit appeal to Department. In view of its continuing refusal to apply for a wetlands permit, the applicant could not comply with the waterways licensing requirement that all other necessary authorizations be obtained before construction commenced.

Matter of Graphics Cogeneration Partnership, Docket No. 94-018, Final Decision on Renewal and Reargument of Cross Motions for Summary Decision, 4 DEPR 24 (February 6, 1997).

The applicant sought an air quality permit for the its proposed cogeneration facility. The facility was designed to use a water-injected gas turbine to control emissions. The Department determined that this was not best available control technology (BACT) for pollution control, and therefore denied the permit, prompting this appeal. The Department's motion for summary decision was granted; (1) the applicant's choice of a water-injected gas turbine as baseline from which to measure emissions and costs in determining what technology was BACT was incorrect because the proper baseline was a turbine with no emissions control; (2) in determining that the water- injected gas turbine did not qualify as an "inherently lower polluting process" that could be used as the baseline for BACT analysis, the Department reasonably interpreted "inherently lower polluting process" to mean a process that prevented pollutant formation across a broad spectrum, as opposed to one that (as applicant emphasized) prevented the formation of one type of pollutant; (3) whether the applicant chose water injection-based emissions control technology to increase power output rather than to control pollution was not material to a determination whether this technology was an "inherently lower polluting process;" (4) since the Department's permit evaluation went no further than determining that the applicant had used the wrong baseline to determine what emissions control technology was BACT, summary decision affirming that determination left no material issues of fact to adjudicate; and (5) accordingly, factual issues such as whether pollution control technology the Department believed to be BACT was technically infeasible, too costly or unacceptable based upon its environmental or energy impacts were not material and thus did not preclude summary decision.

Matter of Peabody, Trustee, Bowen Estate I Realty Trust, Docket No. 96-018, Final Decision, 3 DEPR 197 (October 18, 1996).

A residential subdivision developer claimed that its application for approval of a "shared" subsurface sewage disposal system was "deemed approved by the Department" under Title 5 of the State Environmental Code. The issue was purely legal; its determination required an interpretation of Title 5 regulations prescribing time periods for the review of such applications and of Department fee regulations stating how those time periods were to be computed. None of the relevant background facts were disputed. The issue was therefore appropriate for summary decision. Held: the Department's request for additional information "stopped the clock" from running out on the initial 60-day review period prescribed by 310 CMR 15.293(1), the clock never started running again as there was no evidence that the applicant supplied the requested information, and consequently no new 60-day review period ever started running, meaning that the shared disposal system application was never "deemed approved" for lack of timely Department review.

Matter of Drohan, Docket No. 95-083, Final Decision, 3 DEPR 39 (March 1, 1996).

In a wetlands permit appeal, the petitioners claimed that the proposed construction of a single family house within the 100-foot buffer zone of a bordering vegetated wetland violated the terms of a settlement agreement, including an agreed-upon final order of conditions, reached in a prior adjudicatory appeal regarding roadwork and drainage within the same subdivision. However, the prior final order of conditions clearly required a separate wetlands permit filing for the house. The superseding order of conditions allowing the house clearly incorporated the conditions from the prior final order that applied to the house lot. In addition, (1) the unrebutted affidavit of a professional engineer accompanying the applicant's motion for summary decision showed that the proposed septic system would be located outside the buffer zone and was therefore beyond the Department's regulatory jurisdiction; (2) contrary to petitioners' claim that the septic system was moved from a location agreed upon in the prior settlement, the project plans referenced in the prior final order of conditions did not show a septic system and instead showed only the location of a test pit; and (3) a photograph allegedly showing high water levels in an already-built detention pond was insufficient to show a material factual issue regarding the detention pond's performance; the detention pond was not part of the house project, and petitioners' claim that the detention pond would harm unspecified "property interests" could not be determined in wetlands permit appeal.

Matter of Barbrick, Docket No. 93-051, Final Decision, 1 DEPR 378 (December 9, 1994).

The wetlands superseding order appealed in this case allowed construction of a pile-supported dwelling on oceanfront property. The applicant obtained a partial summary decision establishing that filling in land subject to coastal storm flowage would not destabilize the coastal bank. The issues remaining for determination, as identified in the prehearing conference report, were (1) whether the Department was required to ensure the project's compliance with Federal Emergency Management Agency (FEMA) regulations and, if so, whether the project complied with them, and (2) whether the proposed filling would adversely affect the storm damage prevention and flood control functions of land subject to coastal storm flowage. Another round of summary decision motions followed. Summary decision was granted in favor of the applicant and the Department on the FEMA issues as a matter of law because the Wetlands Protection Act and Regulations do not mandate that the Department ensure compliance with FEMA regulations in issuing a superseding or final order of conditions. Both parties also were granted summary decision on the filling impacts issue. The applicant's motion included the affidavit of an expert who presented fact-based opinions regarding the distance between the lowest floor elevation of the proposed house and the site grade after filling, the absence of storm surge and large wave exposure at site, and the filling's lack of measurable impact on coastal storm flowage and flood levels at the site or on neighboring properties. Neither these opinions nor the facts on which they were based were addressed or rebutted by the petitioner's opposing affidavits.

Matter of Peters, Docket No. 89-066, Final Decision (February 27, 1992).

The applicant's initial summary decision motion was denied as insufficiently made and supported, since all it did was reiterate conclusions recited in the wetlands superseding order that the petitioners challenged on appeal. The applicant's second motion for summary decision, however, was granted. This time, the motion was supported by the competent affidavit of an environmental scientist. The affidavit showed without contradiction, by describing the project site's physical characteristics and presenting an opinion based upon them, that the site was properly classified as land subject to coastal storm flowage rather than as coastal dune, as the petitioners alleged.

Matter of Wasserman, Docket No. 89-125, Final Decision (June 26, 1990).

In a wetlands permit appeal, the applicant agreed to the relief sought by petitioner ten residents group--the addition of nine special conditions regarding such matters as snow stockpiling, landscaping, construction techniques, and a detention basin maintenance plan. The ten residents group nonetheless refused to agree to the issuance of a final order of conditions incorporating these additional permit requirements. The applicant's motion for summary decision on the proposed final order of conditions was not opposed by the ten residents group, and was granted. The claim of one member of the group that a portion of the applicant's proposed detention basin would lie within area to which she had acquired title by adverse possession could not be adjudicated in this forum, and therefore did not bar summary decision; at any rate, the final order of conditions stated (at general condition 2) that it did not authorize injury to or invasion of private property.

2. PARTIAL SUMMARY DECISION GRANTED

Matter of Ogren, Docket No. 94-038, Partial Summary Decision: Issue #1, 2 DEPR 211 (September 26, 1995).

The parties requested an advance ruling as to whether the Department had authority in a wetlands superseding determination of applicability to establish the location and boundary of wetland resource areas on the subject property. This request was treated as a motion for partial summary decision. N one of the parties asserted that the issue was the subject of a genuine or material factual dispute. Held: the Department did not exceed its authority under the Wetlands Protection Act or Regulations by determining the location and boundary of the bordering vegetated wetland and bordering land subject to flooding on the property, or of three areas that were determined not to be isolated land subject to flooding.

3. SUMMARY DECISION DENIED

Matter of Fitchburg Redevelopment Authority, Docket No. 95-064, Decision and Order on Motions for Summary Decision or Stay, Discovery by Entry Upon Land, and Scheduling Revisions (January 3, 1996).

Motion for summary decision denied; the absence of MEPA "Section 61 findings" in a wetlands superseding order of conditions was not fatal to the Department's jurisdiction and did not require a stay of the appeal challenging the superseding order pending project review under MEPA, M.G.L. c. 30, 61-62H. "Section 61 findings" could be made appropriately at the conclusion of the appeal, in a final order of conditions.

Matter of Emond, Docket No. 95-003, Decision and Order on Motion for Summary Decision, 2 DEPR 108 (May 23, 1995).

Petitioner-applicant appealed a wetlands superseding order of conditions denying his proposed pond-wide application of an herbicide because of its impact on the habitat of a rare dragonfly and damselfly. His motion for summary decision was denied. The Department lacked jurisdiction to determine his claims that the insects in question should be delisted as species of special concern; that could only be done by the Secretary of the Executive Office of Environmental Affairs. The remainder of the petitioner-applicant's motion for summary decision was not sufficiently made and supported. His assertion that the herbicide would not have short or long adverse effects on the insects was not supported by affidavit, and rested solely upon the alleged incredibility of a witness whose field observations were relied upon by the Massachusetts Natural Heritage and Endangered Species Program in determining that the pond in question was a habitat for the two insects. The credibility of the witness and her field observations could not be resolved summarily.

4. CONTINUANCE TO OBTAIN NEEDED DISCOVERY

Matter of Salem Suede, Inc., Docket No. 86-008, Decision and Order on Motion to Strike, and for Dismissal, Decision on the Pleadings and Partial Summary Decision (January 29, 1992).

A request to defer ruling on a motion for summary decision until discovery is completed may be denied where the discovery sought is not relevant, where there has already been sufficient discovery, or where the claim on which summary decision is sought is not shown to be sufficient as a matter of law--in this case, "selective enforcement" of air pollution control laws.

APPENDIX C: DECISIONS ON DIRECTED DECISION

1. DIRECTED DECISION GRANTED

Matter of Anderson, Docket No. 05-085, Final Decision- Order of Dismissal, 4 DEPR 56 (April 8, 1997).

The petitioners appealed a wetlands superseding order of conditions allowing the construction of single family dwelling and septic system in land subject to coastal storm flowage (LSCSF). They claimed that the installation of the septic system would be located too close to a well they used as a private water supply. After the petitioners filed their prefiled testimony and exhibits, the Department and applicant moved to dismiss for failure to sustain a direct case. The motion was granted. Even if the LSCSF in question was assumed to be significant to protection of private water supply and groundwater supply from salt water intrusion, as the petitioners' professional engineer concluded in his prefiled testimony, his testimony nonetheless presented no evidence that the proposed septic system would affect this interest adversely by changing soil permeability or by otherwise allowing salt water intrusion into groundwater; nor did it explain how this would occur.

Matter of Ottman Custom Processors, Inc., Docket No. 96-029, Final Decision- Order of Dismissal, 4 DEPR 35 (March 4, 1997).

Petitioner's failure to file prefiled direct testimony is equivalent to failing to appear for a hearing to present a direct case; that failure, plus petitioner's failure to explain it, justified the dismissal of petitioner's appeal for failure to sustain its case.

Matter of Town of Hull, Docket Nos. 95-068, 95-069, Decision and Order re Dismissal and Stay, 3 DEPR 58 (April 18, 1996), reargument denied, 3 DEPR 88 (May 15, 1996), confirmed by Final Decision, 3 DEPR 196 (October 15, 1996).

This wetlands permit appeal was dismissed for failure to sustain a direct case; the petitioners did not file prefiled direct testimony, as the prehearing conference order required them to do.

Matter of Town of Truro, Docket No. 94-066, Final Decision, 2 DEPR 179 (August 21, 1995), aff'd sub nomine Worthington v. Town of Truro, Civ. No. 95-5192-B, Memorandum of Decision and Order on Plaintiff's Complaint for Judicial Review (Suffolk Super. Ct., May 30, 1996.

Petitioner appealed a waterways license allowing the town applicant to construct a public boat ramp. The town moved for a directed decision after the petitioner filed prefiled direct testimony and completed its live direct examination of a subpoenaed witness. Motion granted; petitioner's direct testimony did not demonstrate that the project failed to meet standards recited in the Department's Waterways Regulations for boat ramp construction, safe navigational ingress and egress, and parking [see 310 CMR 9.00 (1978 rev.)], as the petitioner claimed, and the live direct testimony in fact undercut this claim.

Matter of Central Water District Associates Limited Partnership, Docket No. 92-037, Final Decision, 2 DEPR 228 (November 7, 1995).

Directed decision for the Department in applicant's appeal of a wetlands superseding order of conditions denying its proposal to lower a pond impounded by a dam. The applicant's direct case lacked any evidence (1) that the pond was created by excavation rather than by impoundment, and therefore failed to sustain claim that Department lacked regulatory jurisdiction over the proposed work; or (2) that there was no bank, bordering vegetated wetland or other wetland resource area associated with the pond. The applicant's remaining jurisdictional objections were barred because they were raised specifically by petitioner's predecessor in interest in a related penalty appeal, and rejected in a final decision that was affirmed by the Superior Court.

Matter of Crowley, Docket No. 89-152, Final Decision and Order of Dismissal (July 19, 1995).

Motion by Department and applicant for full directed decision granted in this wetlands permit appeal. The petitioner alleged that the proposed work would occur within a wetland resource area rather than outside wetland boundaries, as the Department had found. Its direct case failed, however, to provide (1) any evidence that the proposed drainage outfall was within the boundary of a bordering vegetated wetland, contrary to what the project plan approved by the Department showed, or that it would alter the wetland; or (2) evidence overcoming the presumption that the boundary of Bordering Land Subject to Flooding shown on the project plans was accurate, which applied because the boundary was determined by reference to the 100-year floodplain shown on the Flood Insurance Rate Map for the community in question [see 310 CMR 10.57(2)(a)3].

Matter of Hobson, Docket No. 94-068, Final Decision, 2 DEPR 151 (July 12, 1995).

Directed decision for the Department in an appeal of a negative wetlands superseding determination of applicability. The petitioner failed to produce any credible evidence in support of its position that the landowner had altered an area subject to protection under M.G.L. c. 131, 40, and thus failed to meet its burden of going forward; having failed to meet that burden, petitioner could not sustain its case.

Matter of Pride Convenience Stores, Inc., Docket No. 94-099, Final Decision, 2 DEPR 106 (May 16, 1995).

Directed decision for applicant in wetlands permit appeal following order to show cause why such relief should not be granted: petitioner's prefiled testimony failed to address any of the issues identified for adjudication by the prehearing conference report, and therefore failed to sustain its direct case].

Matter of Oxford Housing Authority, Docket Nos. 92-026, 93-008, Final Decision, 1 DEPR 5 (January 21, 1994), reconsideration denied, 1 DEPR 55 (February 22, 1994), aff'd in part (as to availability of a directed decision and dismissal for failure to sustain the direct case) sub nomine Widen v. Oxford Housing Authority, Civ. No. WOCV94-004130, Memorandum and Order on Defendant's Motions to Dismiss (Worcester Super. Ct., October 20, 1994).

Petitioner appealed a wetlands superseding order allowing applicant Housing Authority's proposed construction of affordable housing on a vacant site. The applicant's motion for a directed decision was granted. The petitioner's prefiled testimony showed "without question that he determined an area of the project site to be Isolated Land Subject to Flooding (ILSF) via storm runoff calculations which, without justification, assumed frozen ground conditions and used the highest possible runoff curve number for impervious surfaces, contrary to the required standard methodologies ("TR-55" and "NEH 4"). As to ILSF in another area of the project site, the petitioner "ha[d] no surveyed data to refute either the existence of an outlet at the ILSF boundary elevation, or the less extensive ILSF boundary, shown by the topographical survey prepared by the applicant and accepted by the Department." In addition, there was "no question that the applicant's ILSF-related calculations, which the Department accepts, used values reflecting both average conditions and the mixture of soils and land uses found at the project site, and were performed in accordance with the standard methodologies made applicable by the Wetlands Protection Regulations."

2. DIRECTED DECISION DENIED

Matter of Ahern, Docket No. 94-041, Ruling on Motion for Directed Decision and Other Motions, 2 DEPR 112 (May 30, 1995).

In a wetlands permit appeal, a joint motion by the applicant, Department and Conservation Commission for summary decision, after petitioner filed its prefiled testimony, was converted to a motion for a directed decision and denied. While petitioner's prefiled testimony was scant and generally adverse to its claims, it was entitled to present direct testimony by a subpoenaed town official who had prepared a report on the proposed project's drainage impacts, and its direct case was therefore not yet complete.

FOOTNOTES

1/ A motion to dismiss for untimeliness, or an order to show cause why an appeal should not be dismissed as untimely, raises two key questions:

(1) What time limitation applies, and where is it found?

(a) Wetlands permit appeal: 10 days [310 CMR 10.05(7)(j)], computed using business days only [310 CMR 10.05(1)]; (b) Administrative penalty appeals: must be received by Department within 21 days following the date on which the penalty assessment notice ("PAN") is issued, M.G.L. c. 21A, 16, 5; 310 CMR 5.35; (c) Where there is no specifically prescribed time period: "within 21 days from the date that the notice of Department action was sent to a person," 310 CMR 1.01(6)(a).

(a) Check the computation of the time to appeal, especially the starting date. (b) Check for conduct that might have tolled the expiration of the time to appeal (for example, a prejudicially late mailing or delivery to the appealing party of the permit, order or other action being appealed). (c) In a wetlands permit appeal: did the petitioner fail to serve another party entitled to service of the request for an adjudicatory hearing during the appeal period and, if so, was the unserved party prejudiced by nonservice? [return to text]

2/ Generally, a hearing begins when the party having the burden of going forward files and serves its prefiled direct testimony or (in less frequent instances where testimony is not prefiled) when it begins presenting its live direct case. [return to text]

3/ A substantial number of the decision citations below include parallel citations to the volume and page of "DEPR," the Massachusetts DEP Reporter, at which the decision may also be found. DEPR is a compilation of Massachusetts Department of Environmental Protection adjudicatory decisions published privately by Landlaw, Inc. (Brookline, Massachusetts). The compilation begins with adjudicatory decisions issued in 1994; thus, 1 DEPR contains 1994 decisions, 2 DEPR refers to the volume for 1995 decisions, and so forth. DEPR is available from Landlaw or from public libraries that subscribe to this private Reporter. [return to text]