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
25-P-340
BRIAN COPPENRATH & another1
vs.
E.J. PONTIFF CRANBERRIES, INC., & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Brian and Kelsey Coppenrath, appeal from a
judgment entered by a Superior Court judge that dismissed for
lack of standing their complaint brought under the certiorari
statute, G. L. c. 249, § 4. The complaint alleged that the town
of Carver's earth removal committee (ERC) improperly issued an
earth removal permit (permit) to defendant E.J. Pontiff
Cranberries, Inc. (Pontiff).3 The complaint also sought a
declaratory judgment, pursuant to G. L. c. 231A, § 1,
1 Kelsey Coppenrath.
2 Earth removal committee of Carver.
3The ERC did not file a brief or otherwise participate in this appeal. invalidating the permit. Primarily at issue on appeal is the
third requirement for certiorari review -- whether the
plaintiffs suffered a substantial injury or injustice to
establish standing. See Indeck v. Clients' Sec. Bd., 450 Mass.
379, 385 (2008). We agree with the Superior Court judge and
affirm.
Background. Pontiff is a cranberry grower that purchased
the site at issue in 2023, although permits were issued since
2006 by the ERC to the prior owner that allowed earth removal
for the purpose of constructing cranberry bogs. In 2022, the
plaintiffs moved to a home that is considered an abutter to the
site. After Pontiff applied for the permit, the ERC held three
public hearings to consider the application as well as public
comments. In 2024, the ERC granted the permit to Pontiff with
conditions for the earth removal, including the hours of
operation, truck routes, maximum number of trucks permitted per
day, dust mitigation measures, and other safety precautions.
The plaintiffs filed a complaint in the Superior Court
seeking judicial review of the permit, pursuant to G. L. c. 249,
§ 4. They claimed that the application was submitted as a
"pretense [to] evade prohibitions against [commercial] sand and
gravel mining." They contended that the application and permit
failed to comply with the town's bylaws and that the ERC was
improperly constituted.
2 As relevant here, the plaintiffs alleged that they suffered
"[p]otential contamination of private wells"; "[a]irborne
release of medically harmful silica"; "[d]eposit[s] on their
properties of sand, gravel, and trash"; "[i]nfestation of
predatory animals threatening pets and humans"; "[c]oncussive
noise and vibration"; "[i]ncreased noise"; "[r]uination of
natural vista"; and "[d]ecreased property values."
The defendants moved to dismiss the complaint for lack of
standing pursuant to Mass. R. Civ. P. 12 (b) (1), 365 Mass. 754
(1974), arguing that the alleged injuries were "too generalized,
conclusory, speculative, and unrelated to the area of concern
addressed by the applicable bylaw to provide a basis for
standing."4 In opposition, the plaintiffs submitted an affidavit
from plaintiff Brian Coppenrath that averred, among other
things,
4 At the time of these proceedings, the purpose of the bylaw, c. 9, § 9.1.1,
"[wa]s to promote the health, safety, and general welfare of the residents of the [t]own of Carver, and to ensure that permanent changes in the surface contours of land resulting from the removal and regrading of earth materials will leave the land in a safe and convenient condition for appropriate reuse without requiring excessive and unreasonable maintenance or creating danger of damage to public and private property, as well as to provide that earth removal activities shall be conducted in a safe manner and with minimal detrimental effect upon the district in which the activities are located."
3 "The trucks and equipment used for the earth removal on the [s]ite enter and exit onto Tremont Street. Trucks and equipment that head south [from the site] pass by my house. . . . When I leave my house to go on to Tremont Street, I encounter truck traffic from the earth removal operations at the [s]ite. . . . On a near daily basis, I observe and hear the earth removal operations and the trucking of sand and gravel at the [s]ite starting early in the morning. . . . [They] cause a significant amount of noise. . . . On a near daily basis, I hear noise from truck traffic on Tremont Street. . . . [T]he number of trucks driving up and down Tremont Street has increased significantly. . . . The trucks also cause vibrations when they pass by [my house]. . . . Large earth removal trucks come down my residential street to turn around and some pull . . . in front of my house. . . . My entire house shakes from time to time from the trucking operations. . . . The additional noises and shaking of my house frequently disturb my newborn baby and often disrupt my baby's and my family's sleep patterns. . . . There is dirt and dust all over Tremont Street from [Pontiff's] earth removal operations[.] On many occasions, that dirt and dust blows or otherwise ends up on . . . my land and my house. . . . [Pontiff's operations] have had an adverse impact on my use and enjoyment of my [h]ome[, and] my personal health and wellbeing, including through . . . stress and anxiety."
The plaintiffs claimed that this was sufficient to confer
standing because they showed particularized and nonspeculative
injuries within the bylaw's zone of interests. The defendants
countered that the plaintiffs "fail[ed] to establish
individualized injuries to protected interests." The judge
agreed with the defendants and dismissed the complaint for lack
of standing. This appeal followed.
Discussion. 1. Legal standards. An action in the nature
of certiorari, G. L. c. 249, § 4, "serves to correct errors of
law in administrative proceedings where judicial oversight
4 otherwise is not available." Lippman v. Conservation Comm'n of
Hopkinton, 80 Mass. App. Ct. 1, 5 (2011). "To obtain certiorari
review of an administrative decision, the following three
elements must be present: (1) a judicial or quasi judicial
proceeding, (2) from which there is no other reasonably adequate
remedy, and (3) a substantial injury or injustice arising from
the proceeding under review." Indeck, 450 Mass. at 385.
Because there is no dispute that the first two requirements of
the statute have been met, the only question is whether the
plaintiffs suffered "a substantial injury or injustice arising
from" the issuance of the permit. Id. Put differently, we must
determine whether the plaintiffs have standing to challenge the
permit, see Friedman v. Conservation Comm'n of Edgartown, 62
Mass. App. Ct. 539, 541-543 (2004), "review[ing] the judge's
legal rulings . . .
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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
25-P-340
BRIAN COPPENRATH & another1
vs.
E.J. PONTIFF CRANBERRIES, INC., & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Brian and Kelsey Coppenrath, appeal from a
judgment entered by a Superior Court judge that dismissed for
lack of standing their complaint brought under the certiorari
statute, G. L. c. 249, § 4. The complaint alleged that the town
of Carver's earth removal committee (ERC) improperly issued an
earth removal permit (permit) to defendant E.J. Pontiff
Cranberries, Inc. (Pontiff).3 The complaint also sought a
declaratory judgment, pursuant to G. L. c. 231A, § 1,
1 Kelsey Coppenrath.
2 Earth removal committee of Carver.
3The ERC did not file a brief or otherwise participate in this appeal. invalidating the permit. Primarily at issue on appeal is the
third requirement for certiorari review -- whether the
plaintiffs suffered a substantial injury or injustice to
establish standing. See Indeck v. Clients' Sec. Bd., 450 Mass.
379, 385 (2008). We agree with the Superior Court judge and
affirm.
Background. Pontiff is a cranberry grower that purchased
the site at issue in 2023, although permits were issued since
2006 by the ERC to the prior owner that allowed earth removal
for the purpose of constructing cranberry bogs. In 2022, the
plaintiffs moved to a home that is considered an abutter to the
site. After Pontiff applied for the permit, the ERC held three
public hearings to consider the application as well as public
comments. In 2024, the ERC granted the permit to Pontiff with
conditions for the earth removal, including the hours of
operation, truck routes, maximum number of trucks permitted per
day, dust mitigation measures, and other safety precautions.
The plaintiffs filed a complaint in the Superior Court
seeking judicial review of the permit, pursuant to G. L. c. 249,
§ 4. They claimed that the application was submitted as a
"pretense [to] evade prohibitions against [commercial] sand and
gravel mining." They contended that the application and permit
failed to comply with the town's bylaws and that the ERC was
improperly constituted.
2 As relevant here, the plaintiffs alleged that they suffered
"[p]otential contamination of private wells"; "[a]irborne
release of medically harmful silica"; "[d]eposit[s] on their
properties of sand, gravel, and trash"; "[i]nfestation of
predatory animals threatening pets and humans"; "[c]oncussive
noise and vibration"; "[i]ncreased noise"; "[r]uination of
natural vista"; and "[d]ecreased property values."
The defendants moved to dismiss the complaint for lack of
standing pursuant to Mass. R. Civ. P. 12 (b) (1), 365 Mass. 754
(1974), arguing that the alleged injuries were "too generalized,
conclusory, speculative, and unrelated to the area of concern
addressed by the applicable bylaw to provide a basis for
standing."4 In opposition, the plaintiffs submitted an affidavit
from plaintiff Brian Coppenrath that averred, among other
things,
4 At the time of these proceedings, the purpose of the bylaw, c. 9, § 9.1.1,
"[wa]s to promote the health, safety, and general welfare of the residents of the [t]own of Carver, and to ensure that permanent changes in the surface contours of land resulting from the removal and regrading of earth materials will leave the land in a safe and convenient condition for appropriate reuse without requiring excessive and unreasonable maintenance or creating danger of damage to public and private property, as well as to provide that earth removal activities shall be conducted in a safe manner and with minimal detrimental effect upon the district in which the activities are located."
3 "The trucks and equipment used for the earth removal on the [s]ite enter and exit onto Tremont Street. Trucks and equipment that head south [from the site] pass by my house. . . . When I leave my house to go on to Tremont Street, I encounter truck traffic from the earth removal operations at the [s]ite. . . . On a near daily basis, I observe and hear the earth removal operations and the trucking of sand and gravel at the [s]ite starting early in the morning. . . . [They] cause a significant amount of noise. . . . On a near daily basis, I hear noise from truck traffic on Tremont Street. . . . [T]he number of trucks driving up and down Tremont Street has increased significantly. . . . The trucks also cause vibrations when they pass by [my house]. . . . Large earth removal trucks come down my residential street to turn around and some pull . . . in front of my house. . . . My entire house shakes from time to time from the trucking operations. . . . The additional noises and shaking of my house frequently disturb my newborn baby and often disrupt my baby's and my family's sleep patterns. . . . There is dirt and dust all over Tremont Street from [Pontiff's] earth removal operations[.] On many occasions, that dirt and dust blows or otherwise ends up on . . . my land and my house. . . . [Pontiff's operations] have had an adverse impact on my use and enjoyment of my [h]ome[, and] my personal health and wellbeing, including through . . . stress and anxiety."
The plaintiffs claimed that this was sufficient to confer
standing because they showed particularized and nonspeculative
injuries within the bylaw's zone of interests. The defendants
countered that the plaintiffs "fail[ed] to establish
individualized injuries to protected interests." The judge
agreed with the defendants and dismissed the complaint for lack
of standing. This appeal followed.
Discussion. 1. Legal standards. An action in the nature
of certiorari, G. L. c. 249, § 4, "serves to correct errors of
law in administrative proceedings where judicial oversight
4 otherwise is not available." Lippman v. Conservation Comm'n of
Hopkinton, 80 Mass. App. Ct. 1, 5 (2011). "To obtain certiorari
review of an administrative decision, the following three
elements must be present: (1) a judicial or quasi judicial
proceeding, (2) from which there is no other reasonably adequate
remedy, and (3) a substantial injury or injustice arising from
the proceeding under review." Indeck, 450 Mass. at 385.
Because there is no dispute that the first two requirements of
the statute have been met, the only question is whether the
plaintiffs suffered "a substantial injury or injustice arising
from" the issuance of the permit. Id. Put differently, we must
determine whether the plaintiffs have standing to challenge the
permit, see Friedman v. Conservation Comm'n of Edgartown, 62
Mass. App. Ct. 539, 541-543 (2004), "review[ing] the judge's
legal rulings . . . de novo," Pishev v. Somerville, 95 Mass.
App. Ct. 678, 682 (2019).
The declaratory judgment statute, G. L. c. 231A, § 1,
creates no substantive rights, see Galipault v. Wash Rock Invs.,
LLC, 65 Mass. App. Ct. 73, 83-84 (2005), and "does not provide
an independent statutory basis for standing," Enos v. Secretary
of Envtl. Affairs, 432 Mass. 132, 135 (2000), citing Pratt v.
Boston, 396 Mass. 37, 42-43 (1985). Its purpose is "to afford
[plaintiffs] relief from . . . uncertainty and insecurity with
respect to rights, duties, status[,] and other legal relations"
5 (citation omitted). Lippman, 80 Mass. App. Ct. at 6.
Plaintiffs "must establish both an actual controversy and legal
standing before the[ir] complaint [for declaratory judgment] may
be heard." Pishev, 95 Mass. App. Ct. at 682. Here, if the
plaintiffs fail to establish standing under the certiorari
statute, their complaint seeking a declaratory judgment must
likewise fail. See Galipault, supra.
2. Analysis. The plaintiffs argue that they have standing
because the activity under the permit caused them direct,
substantial, nonspeculative injuries that were distinguishable
from those suffered by the general public and were within the
bylaw's zone of interests. They also claim that failure to
grant them standing in this case would "essentially freeze out
anyone seeking to challenge an earth removal permit." We are
not persuaded.
The case of Fiske v. Selectmen of Hopkinton, 354 Mass. 269,
270-271 (1968), is instructive. In Fiske, the court affirmed
the dismissal of the certiorari action, concluding that the
allegations were speculative and damages were generalized; "it
[did] not appear from the petition . . . how [the plaintiffs
were] substantially injured beyond the hypothetical injuries to
the town . . . as a whole." Id. at 271. Indeed, the
"requirements for abutters seeking to establish and retain
standing are formidable." Friedman, 62 Mass. App. Ct. at 544.
6 They must demonstrate a reasonable likelihood that they have
suffered substantial injury to a protected legal right or
manifest injustice. See Higby/Fulton Vineyard, LLC v. Board of
Health of Tisbury, 70 Mass. App. Ct. 848, 850-851 (2007), citing
Fiske, supra. This the plaintiffs did not do.
First, some of the plaintiffs' claims were speculative --
neither the complaint nor the affidavit established that well
contamination, infestation of predatory animals, natural vista
ruination, harmful silica emission, or property value reduction
had occurred or will occur, and the plaintiffs do not contend
otherwise. See Hickey v. Conservation Comm'n of Dennis, 93
Mass. App. Ct. 655, 658 (2018) (injuries speculative where
raised "in a conclusory fashion" and "unsupported by expert
evidence, technical analysis, or particular facts in the record
that establish the purported risks" [brackets omitted]).
Second, to the extent that the injuries were not
speculative, they were generalized -- the plaintiffs failed to
establish how the permit "resulted in 'substantial injury' or
'manifest injustice' to them, rather than to the public in
general." Friedman, 62 Mass. App. Ct. at 545, quoting Fiske,
354 Mass. at 271. See id. at 270-271 ("disagreeable dust and
noise," "unsightly waste," depressed property values, and
burdensome traffic caused by earth removal were generalized
damages).
7 We are not unsympathetic to the plaintiffs' concerns, but
standing as a matter of law "is not measured by the intensity of
the[ir] interest[s] or the fervor of [their] advocacy." Pratt,
396 Mass. at 42, quoting Valley Forge Christian College v.
Americans United for Separation of Church & State, 454 U.S. 464,
486 (1982). Because the plaintiffs failed to demonstrate a
reasonable likelihood of substantial injury or manifest
injustice directly resulting from the permit, they do not have
standing and the complaint was properly dismissed.5 See Fiske,
354 Mass. at 271.
We are also not persuaded that the result here sets an
"insurmountable bar" to establish standing that no other
plaintiff will be able to overcome. For abutters, demonstrating
standing is "formidable," Friedman, 62 Mass. App. Ct. at 544,
5 Because the plaintiffs' certiorari claim fails, so too does their request for declaratory relief. See Galipault, 65 Mass. App. Ct. at 83-84.
8 but not impossible. They must allege sufficient injuries to
carry their burden, something the plaintiffs did not do here.
Judgment affirmed.
By the Court (Blake, C.J., Neyman & Grant, JJ.6),
Clerk
Entered: March 2, 2026.
6 The panelists are listed in order of seniority.