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
24-P-1201
JAMES JONES & another1
vs.
CONSERVATION COMMISSION OF BARNSTABLE & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, James Jones and Beth Sullivan, brought a
Superior Court action in the nature of certiorari challenging an
order of conditions (order) issued by the Town of Barnstable
Conservation Commission (commission) to the defendant Washington
SGG Nominee Trust (Washington SGG). On cross motions for
judgment on the pleadings, Washington SGG's motion was allowed,
and the plaintiffs' motion was denied. The plaintiffs appeal,
and we affirm.
A civil action in the nature of certiorari under G. L.
c. 249, § 4, is "to relieve aggrieved parties from the injustice
1 Beth Sullivan.
2 Washington Street SGG Nominee Trust. arising from errors of law committed in proceedings affecting
their justiciable rights when no other means of relief are
open." Figgs v. Boston Hous. Auth., 469 Mass. 354, 361 (2014),
quoting Swan v. Justices of the Superior Court, 222 Mass. 542,
544 (1916). "The scope of judicial review for an action in the
nature of certiorari under G. L. c. 249, § 4, is limited."
Retirement Bd. of Somerville v. Buonomo, 467 Mass. 662, 668
(2014). The judge's role on certiorari review is to "correct
substantial errors of law apparent on the record adversely
affecting material rights." Doucette v. Massachusetts Parole
Bd., 86 Mass. App. Ct. 531, 540–541 (2014), quoting Firearms
Records Bur. v. Simkin, 466 Mass. 168, 180 (2013). We review
the record to determine whether the municipality's decision was
"arbitrary and capricious, unsupported by substantial evidence,
or otherwise an error of law." Hoffer v. Board of Registration
in Med., 461 Mass. 451, 458 n.9 (2012). Finally, we review a
decision allowing a motion for judgment on the pleadings de
novo. Delapa v. Conservation Comm'n of Falmouth, 93 Mass. App.
Ct. 729, 733 (2018).
1. Motion to supplement. Along with the plaintiffs'
motion for judgment on the pleadings, they filed a motion to
supplement the administrative record, which Washington SGG
opposed. The judge denied the motion and noted that the
2 proposed supplemental record materials3 were not presented to the
commission at the time it allowed the order, and accordingly,
the judge would not consider them as part of the certiorari
action. The plaintiffs claim the denial of this motion was an
abuse of discretion. We disagree.
We review the denial of a motion to supplement the
administrative record for an abuse of discretion. Massachusetts
Ass'n of Minority Law Enforcement Officers v. Abban, 434 Mass.
256, 265-266 (2001), citing Northeast Metro. Regional Vocational
Sch. Dist. Sch. Comm. v. Massachusetts Comm'n Against
Discrimination, 35 Mass. App. Ct. 813, 817 (1994). "An
appellate court's review of a [motion] judge's decision for
abuse of discretion must give great deference to the judge's
exercise of discretion; it is plainly not an abuse of discretion
simply because a reviewing court would have reached a different
result." Vazquez Diaz v. Commonwealth, 487 Mass. 336, 344
(2021), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014). "[A] judge's discretionary decision constitutes an
abuse of discretion where we conclude the judge made a clear
error of judgment in weighing the factors relevant to the
3 The proposed supplemental materials included an August 14, 2023, letter from the Department of Environmental Protection (DEP), and town regulations related to wetland buffer zone activity and coastal banks.
3 decision, such that the decision falls outside the range of
reasonable alternatives." Vazquez Diaz, supra at 345, quoting
L.L., supra.
Here, as the judge properly determined, the proposed
additional record materials were not presented to the commission
when it made its decision to grant the order. In that posture,
it would have been improper for the judge to consider them in a
certiorari action. See Board of Selectmen of Oxford v. Civil
Serv. Comm'n, 37 Mass. App. Ct. 587, 588 n.4 (1994) ("As review
in the nature of certiorari is limited to the record before the
governmental body or officer that made the order complained of,
the taking of fresh evidence in the Superior Court was not
appropriate"); Superior Court Standing Order 1-96(5) (under
certiorari review, "[n]o testimony or other evidence shall be
presented at the hearing, and the review shall be confined to
the record").
Moreover, the plaintiffs did not offer any evidence before
the commission supporting the existence of inland flood zones,
potential vernal pools, vernal pool habitat, isolated vegetated
wetlands, coastal bank or buffer zone as resource areas. The
plaintiff's expert agreed that the commission lacked
jurisdiction over any vegetation. Furthermore, the commission
concluded that there were no performance standards that applied
4 to the proposed project in that regard. Because the only
applicable resource was the Land Subject to Coastal Storm
Flowage (LSCSF), the town's regulations that related to wetland
buffer zone activity and coastal banks were not implicated.
Also, the DEP's 2016 review of the properties did not reference
any coastal banks. There was no abuse of discretion in denying
the motion to supplement the administrative record.
2. The order. The plaintiffs also claim that the motion
judge erred by concluding that the commission's order was not
arbitrary and capricious, was supported by substantial evidence,
and was not legally erroneous. We disagree.
Unless there is no ground which a reasonable person might
deem proper to support it, we will not consider the commission's
actions arbitrary and capricious. T.D.J. Dev. Corp. v.
Conservation Comm'n. of N. Andover, 36 Mass. App. Ct. 124, 128
(1994). See Cotter v. Chelsea, 329 Mass. 314, 318 (1952). We
also owe the commission substantial deference to its
interpretation of statutes or regulations within its
jurisdiction. See Conservation Comm'n of Falmouth v. Pacheco,
49 Mass. App. Ct. 737, 739 n.3 (2000). See also Carey v.
Commissioner of Correction, 479 Mass. 367, 369-370 (2018).
In large measure, the plaintiffs' argument is premised on
their claim that the commission should have considered the
5 materials that were excluded, and the failure to do so rendered
the decision to issue the order arbitrary, capricious, and not
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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
24-P-1201
JAMES JONES & another1
vs.
CONSERVATION COMMISSION OF BARNSTABLE & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, James Jones and Beth Sullivan, brought a
Superior Court action in the nature of certiorari challenging an
order of conditions (order) issued by the Town of Barnstable
Conservation Commission (commission) to the defendant Washington
SGG Nominee Trust (Washington SGG). On cross motions for
judgment on the pleadings, Washington SGG's motion was allowed,
and the plaintiffs' motion was denied. The plaintiffs appeal,
and we affirm.
A civil action in the nature of certiorari under G. L.
c. 249, § 4, is "to relieve aggrieved parties from the injustice
1 Beth Sullivan.
2 Washington Street SGG Nominee Trust. arising from errors of law committed in proceedings affecting
their justiciable rights when no other means of relief are
open." Figgs v. Boston Hous. Auth., 469 Mass. 354, 361 (2014),
quoting Swan v. Justices of the Superior Court, 222 Mass. 542,
544 (1916). "The scope of judicial review for an action in the
nature of certiorari under G. L. c. 249, § 4, is limited."
Retirement Bd. of Somerville v. Buonomo, 467 Mass. 662, 668
(2014). The judge's role on certiorari review is to "correct
substantial errors of law apparent on the record adversely
affecting material rights." Doucette v. Massachusetts Parole
Bd., 86 Mass. App. Ct. 531, 540–541 (2014), quoting Firearms
Records Bur. v. Simkin, 466 Mass. 168, 180 (2013). We review
the record to determine whether the municipality's decision was
"arbitrary and capricious, unsupported by substantial evidence,
or otherwise an error of law." Hoffer v. Board of Registration
in Med., 461 Mass. 451, 458 n.9 (2012). Finally, we review a
decision allowing a motion for judgment on the pleadings de
novo. Delapa v. Conservation Comm'n of Falmouth, 93 Mass. App.
Ct. 729, 733 (2018).
1. Motion to supplement. Along with the plaintiffs'
motion for judgment on the pleadings, they filed a motion to
supplement the administrative record, which Washington SGG
opposed. The judge denied the motion and noted that the
2 proposed supplemental record materials3 were not presented to the
commission at the time it allowed the order, and accordingly,
the judge would not consider them as part of the certiorari
action. The plaintiffs claim the denial of this motion was an
abuse of discretion. We disagree.
We review the denial of a motion to supplement the
administrative record for an abuse of discretion. Massachusetts
Ass'n of Minority Law Enforcement Officers v. Abban, 434 Mass.
256, 265-266 (2001), citing Northeast Metro. Regional Vocational
Sch. Dist. Sch. Comm. v. Massachusetts Comm'n Against
Discrimination, 35 Mass. App. Ct. 813, 817 (1994). "An
appellate court's review of a [motion] judge's decision for
abuse of discretion must give great deference to the judge's
exercise of discretion; it is plainly not an abuse of discretion
simply because a reviewing court would have reached a different
result." Vazquez Diaz v. Commonwealth, 487 Mass. 336, 344
(2021), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014). "[A] judge's discretionary decision constitutes an
abuse of discretion where we conclude the judge made a clear
error of judgment in weighing the factors relevant to the
3 The proposed supplemental materials included an August 14, 2023, letter from the Department of Environmental Protection (DEP), and town regulations related to wetland buffer zone activity and coastal banks.
3 decision, such that the decision falls outside the range of
reasonable alternatives." Vazquez Diaz, supra at 345, quoting
L.L., supra.
Here, as the judge properly determined, the proposed
additional record materials were not presented to the commission
when it made its decision to grant the order. In that posture,
it would have been improper for the judge to consider them in a
certiorari action. See Board of Selectmen of Oxford v. Civil
Serv. Comm'n, 37 Mass. App. Ct. 587, 588 n.4 (1994) ("As review
in the nature of certiorari is limited to the record before the
governmental body or officer that made the order complained of,
the taking of fresh evidence in the Superior Court was not
appropriate"); Superior Court Standing Order 1-96(5) (under
certiorari review, "[n]o testimony or other evidence shall be
presented at the hearing, and the review shall be confined to
the record").
Moreover, the plaintiffs did not offer any evidence before
the commission supporting the existence of inland flood zones,
potential vernal pools, vernal pool habitat, isolated vegetated
wetlands, coastal bank or buffer zone as resource areas. The
plaintiff's expert agreed that the commission lacked
jurisdiction over any vegetation. Furthermore, the commission
concluded that there were no performance standards that applied
4 to the proposed project in that regard. Because the only
applicable resource was the Land Subject to Coastal Storm
Flowage (LSCSF), the town's regulations that related to wetland
buffer zone activity and coastal banks were not implicated.
Also, the DEP's 2016 review of the properties did not reference
any coastal banks. There was no abuse of discretion in denying
the motion to supplement the administrative record.
2. The order. The plaintiffs also claim that the motion
judge erred by concluding that the commission's order was not
arbitrary and capricious, was supported by substantial evidence,
and was not legally erroneous. We disagree.
Unless there is no ground which a reasonable person might
deem proper to support it, we will not consider the commission's
actions arbitrary and capricious. T.D.J. Dev. Corp. v.
Conservation Comm'n. of N. Andover, 36 Mass. App. Ct. 124, 128
(1994). See Cotter v. Chelsea, 329 Mass. 314, 318 (1952). We
also owe the commission substantial deference to its
interpretation of statutes or regulations within its
jurisdiction. See Conservation Comm'n of Falmouth v. Pacheco,
49 Mass. App. Ct. 737, 739 n.3 (2000). See also Carey v.
Commissioner of Correction, 479 Mass. 367, 369-370 (2018).
In large measure, the plaintiffs' argument is premised on
their claim that the commission should have considered the
5 materials that were excluded, and the failure to do so rendered
the decision to issue the order arbitrary, capricious, and not
supported by substantial evidence. However, as the motion judge
noted, he was without authority to consider the excluded
material in this certiorari action. Based on the administrative
record before it, the commission determined that the project
area was subject to LSCSF and not any other resource areas.
Also, the commission found that the project was not subject to
the Massachusetts stormwater standards. Although the
plaintiffs' expert believed that project would impact resource
areas, the commission was free to not credit this and instead
credit the testimony of the Washington SGG's expert. Neither
this court nor the motion judge are free to second guess that
finding. See Seales v. Boston Hous. Auth., 88 Mass. App. Ct.
643, 649 (2015).
Finally, apart from the excluded materials, the commission
considered issues related to drainage for the project area and
ordered conditions related to those issues. As the motion judge
held, the plaintiffs provided no basis for him to conclude that
the order and conditions were not adequate to address those
issues. In addition to the deference owed to the commission,
and acknowledging its expertise, the commission's decision was
properly supported by grounds which a reasonable person could
6 credit. Accordingly, the commission's actions were not
arbitrary or capricious or legally erroneous, and its decision
was supported by substantial evidence. See T.D.J. Dev. Corp.,
36 Mass. App. Ct. at 128. Washington SGG's motion for judgment
of the pleadings was properly granted, and the plaintiffs'
motion was properly denied.4
Judgment affirmed.
By the Court (Meade, Ditkoff & Toone, JJ.5),
Clerk
Entered: November 24, 2025.
4 Washington SGG's motion requesting attorney's fees and costs is denied.
5 The panelists are listed in order of seniority.