In the Matter of JOSEPH DeMAIO
Docket No. 97-063
File No. 76-887
Wareham
April 9, 1998
Edna H. Travis, Administrative Law Judge
FINAL DECISION - ORDER OF DISMISSAL
Summary
Department's denial of request for wetlands superseding order of conditions on the grounds that it was untimely is sustained and the appeal is dismissed.
Procedural History
This is a wetlands appeal brought by Christopulos Realty and Investments, Inc., the owner of lots adjacent to property of the applicant, Joseph DeMaio, in Wareham. The Wareham Conservation Commission approved Mr. DeMaio's request to construct a pier by issuing an Order of Conditions on July 27, 1995, which it subsequently amended on December 10, 1996. On February 26, 1997, following construction of the pier and well beyond the ten day appeal period, the petitioner requested that the Department issue a superseding order of conditions. Its letter stated that "we only recently became aware of the pier and that was when actual construction began." The Department denied the request as untimely.
Following a prehearing conference, on September 10, 1997 I issued an order identifying the issues on appeal, which included "when did the petitioner Christopulos Realty and Investments, Inc. receive the statutorily required. notice" 1 and "was the request for a superseding order of conditions received within 10 days of the time notice was received?"
Subsequently, the parties stipulated that the petitioner "mistakenly" did not receive the statutorily required notice. The applicant filed a motion for summary decision, accompanied by an affidavit and various letters, all of which addressed the time period in which Florence Patterson, Clerk/Treasurer of Christopulos Realty and Investments, Inc. became aware of the construction of Mr. DeMaio's pier. The Department supported the applicant's motion. On December 1, 1997 the petitioner responded to the applicant's motion and filed a motion for remand. The petitioner attached affidavits of its own, to the effect that Deborah Patterson, the daughter of Florence Patterson, had first received notice on February 13, 1997 when she received a copy of the order of conditions via Federal Express from a real estate attorney. If February 13,1997 were treated as the operative date, the appeal was timely.
I concluded that while there appeared to be no factual dispute as to when the petitioner received a copy of the order of conditions, there appeared to be a genuine issue of material fact as to when the petitioner was aware, or should have been aware, of an order of conditions had issued for the project. I held an evidentiary hearing on that issue on January 12, 1998. The petitioner called Deborah Patterson, Assistant Clerk of the Land Court, the real estate attorney David Delaney, Florence Patterson, and Mary McAulliffe, the president of the Jefferson Shores Association, a local landowners' group. Mr. DeMaio testified for himself, as did K. D. Tripp, the contractor who had built the pier, and Barbara Colletti, a neighbor and past officer of the Jefferson Shores Association. The Department presented no witness testimony. Following the hearing I ordered the parties to file briefs. 2
In addition to arguing that the date within which to appeal should run from February 13, 1997, the date Deborah Patterson actually received a copy of the order of conditions from Mr. Delaney, the petitioner argues that the effect of the applicant's failure to comply with the statutory notice provisions is to deny the petitioner due process. It seeks to have the wetlands permit application remanded to both the conservation commission and the Department's Regional Office for a "total review of File No. SE 76-887." Both the Department and the applicant contend that the time should run, at the very latest from February 7,1998, the date Florence Patterson observed the pier and Deborah Patterson spoke to the conservation commission administrator and was informed of the existence of "permits" for the pier.
Discussion
To be timely, a request for a superseding order of conditions must be filed within ten business days of the issuance of an order of conditions. 3 310 CMR 10.05(7)(c); 310 CMR 10.05(1). This statutory ten day period is jurisdictional. Generally, an applicant may rely on the period's expiration to commence work on an allowed project.
We have nevertheless, in rare circumstances, tolled the ten day period where parties who were entitled to notice failed to receive it. In those cases, we have held, in the context of appeals from the issuance of a superseding order of conditions, that the time to appeal does not begin to run against a party entitled to receive the SOC until issuance of the SOC was in fact communicated to that party. Matter of Lenk, Docket No. 95-077, Final Decision, 3 DEPR 18 (February 6, 1996) [appeal period tolled until petitioner conservation commission received copy of Department's cover letter which accompanied determination of applicability; appeal dismissed as untimely because not within 10 days of that date]; Matter of Bianco, Docket No. 93-063, Decision on Department's Motion to Dismiss, 2 DEPR 227 (November 7, 1995)[petitioner had ten days after the SOC was sent to her within which to file an appeal]; Matter of Bay Park Development Trust, Docket No. 88-29 1, Final Decision-Order of Dismissal, 7 MELR 1255 (March 31, 1989)[time within which to appeal SOC begins when petitioner receives copy of SOC; appeal dismissed as untimely because not within 10 days of that date]. See also, Matter of Cross Point Limited Partnership, Docket No. 95-088, Final Decision-Dismissal, 3 DEPR 82 (April 30, 1996), reconsideration denied, 3 DEPR 161 (July 22, 1996)[applying the same principle to a request for a superseding order of conditions from the Department's regional office].
In Matter of Cross Point a petitioner claiming to be an abutter entitled to notice did not receive a copy of the order of conditions until well after the ten day period to request an SOC had run. Its consultant discovered the permit in a set of documents disclosed in connection with a court action. The petitioner requested an SOC, but the Department denied the request as untimely. Without determining whether defects in notice of proceedings before a conservation commission are reviewable in this forum, ALJ James Rooney followed the reasoning of earlier cases that had tolled the ten day period in appeals of SOCs. Writing for the Commissioner, he held that the ten day period within which to request an SOC was tolled until the petitioner had received notice. He then concluded that the appeal should be dismissed in any event since more than ten days had passed between the date the petitioner received notice and the date the request was brought.
There, as here, the petitioner expressed due process concerns, arguing that a "post-deprivation" remedy did not suffice and that the applicant should be required to have its project reviewed again at the local level. Without deciding whether constitutional due process claims were properly brought in this forum, ALJ Rooney concluded that due process was satisfied by a tolling of the ten day appeal period in any event, since that provided the petitioner with an opportunity to be heard before the time to request an SOC had expired.
Consistent with Matter of Cross Point, I conclude that the period of time within which the petitioner had to bring its request for an SOC was tolled until notice of the issuance of the permit was communicated to the petitioner. Even assuming that a constitutional due process challenge were property before me, tolling would be the remedy, if any, to which the petitioner was entitled. Id. at fn. 7.
Under Massachusetts law "a person has notice of a fact when, from all the information at his disposal, he has reason to know of it." Michelin Tires (Canada) Ltd v. First National Bank of Boston, 666 F.2d 673, 682 (1st Cir. 1981). Moreover, "the party to a transaction, whose rights are liable to be injuriously affected by notice, cannot willfully shut his eyes to the means of acquiring knowledge which he knows are at hand and thus escape the consequences which would flow from the notice had it been actually received." Conte v. School Committee of Methuen, 4 Mass. App. 600, 356 N.E. 2d 261, 265 (1976). Consistent with our previous administrative decisions and with Massachusetts case law, I hold that where, as here, the ten day period within which to appeal is tolled, it begins to run from the time information has been communicated to an appealing party from which it could reasonably conclude that it needed to act to protect its rights.
Based on the testimony and the affidavits, the following facts are uncontroverted. Beginning at least on July 31, 1993, Florence Patterson attended a number of meetings of the Jefferson Shores Association at which Mr. DeMaio's plan to build a pier was discussed. The Notice of Intent was provided to the Jefferson Shores Association on April 14, 1995 and was published in the Wareham Courier on April 27,1995. During the summer of 1996, one of the adult members of the Patterson family inspected stakes which had been placed at the site outlining the eventual contours of Mr. DeMaio's pier. Between January 25 and 30,1997, K. D. Tripp, the contractor who built the pier, drove piles at the site preparatory to construction of the pier. He completed construction of the pier on approximately February 14, 1997.
Most importantly, Deborah Patterson testified that on February 7, 1997 she received a phone call from her mother who had just driven down to the Wareham property from her home in Worcester. Her mother reported to her that construction work had begun on Mr. DeMaio's pier. On that same day, Deborah Patterson called the Town Hall and spoke to the conservation commission administrator, who advised her that Mr. DeMaio had "the necessary permits" to build a pier. 4 She then hired Mr. Delaney, who searched the Registry of Deeds and sent her a copy of the permit, which she received on February 13, 1997.
I conclude that notice of the issuance of the permit was communicated to the petitioner 5 on February 7, 1997. That was the date Florence Patterson observed the pier construction and the date she telephoned Deborah Patterson, who spoke to the conservation commission administrator and was told of the existence of the permit. From all the information at Deborah Patterson's disposal on that date, she had reason to know that the permit had issued. The ten day period commenced on February 7,1997. Ten business days from February 7, 1997 was February 24, 1997. As the petitioner did not file its SOC request until February 26,1997, the request was untimely. 6
Disposition
The Department's dismissal of the request for an SOC is sustained and this appeal is therefore dismissed for lack of jurisdiction, pursuant to 3 10 CMR 1.0 1 (1 1)(d) 1.
Reconsideration and Appeal
The parties to this proceeding are hereby notified of their right to file a Motion for Reconsideration of this Decision, pursuant to 3 10 CMR 1.01(14)(d). Such a motion must be filed with the Docket Clerk and served on all parties within seven business days of the postmark date of this Decision.
Any party may appeal this Decision to the Superior Court pursuant to the Massachusetts Adminisuative Procedure Act, G.L. c. 30A, 14(l). The complaint must be filed in the Court within thirty days of receipt of this Decision. The foregoing Decision is hereby adopted as my Final Decision in this case.
[signed] David B. Struhs, Conunissioner
Notes
1. M.G.L. ch. 131, sec. 40, provides that a copy of the notice of intent is to be sent to "all abutters within one-hundred feet of the property line of the land where the activity is proposed."
2. I identified two legal issues:
1. Where the petitioner is an abutter who failed to receive the statutorily required notice set forth in M.G.L. ch. 131, sec. 40, paragraph 2, and assuming that the time within which to file an appeal is tolled until the petitioner receives notice, how should the date of notice be determined:
a. is it the date the petitioner received a copy of the order of conditions or should an earlier date be applied? If an earlier date should be applied, what is that date and why should it be applied?
b. what significance should be afforded to the publication of notice in the Wareham Courier and the mailing of notice to the Jefferson Shores Association, of which the petitioner is a member?
2. What relief does the petitioner seek in this forum and why?
3. Likewise, an appeal of a superseding order or determination of applicability must be filed within ten business days of the issuance of a superseding order of conditions. 310 CMR 10.05(7)(j); 310 CMR 10.05 (l).
4. In theur briefs following the evidentiary hearing, both the Department and the applicant submitted affidavits of David C. Pichette, the Conservation Administrator of the Wareham Conservation Commission. The Department also included the affidavit of Daniel Gilmore, the Department analyst. The petitioner objects to any reference to the Pichette affidavit and has moved to strike both affidavits on the grounds that the evidentiary portion of the hearing has been closed. This decision is based entirely on evidence from the hearing itself, and I have not relied on either of the affidavits. Therefore, the motion to strike the affidavits is denied as moot.
5. The petitioner is a corporation founded by a Mr. Christopolus, Deborah Patterson's grandfather, and is controlled entirely by family members. From the testimony it became clear that although Deborah Patterson is not an officer of the corporation, she frequently acts as on behalf of the corporation and has been authorized by the corporation to do so. There is no dispute that notice to her can be treated as notice to the corporation.
6. In light of the untimeliness of the request for an SOC, I need not consider whether cases grounded in a defect of notice at the conservation commission level are properly brought in this forum.
