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-885
JAMES M. RODRIGUEZ
vs.
CONSERVATION COMMISSION OF NORWELL.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
James M. Rodriguez brought a certiorari action under G. L.
c. 249, § 4, challenging two enforcement orders issued to him by
the Norwell Conservation Commission (commission). The
enforcement orders alleged that Rodriguez was conducting
forestry work on his land in violation of the Wetlands
Protection Act, G. L. c. 131, § 40, and the town of Norwell's
(town) wetlands bylaw and directed that he cease and desist and
restore the resource areas to their original condition. On the
parties' cross-motions for judgment on the pleadings, a Superior
Court judge concluded that Rodriguez failed to show that the
enforcement orders were invalid, and judgment entered in favor
of the commission. Rodriguez appeals, arguing principally that the enforcement orders are barred by claim and issue preclusion.
We affirm.
Background. On December 12, 2018, the Massachusetts
Department of Conservation and Recreation (DCR) issued Rodriguez
a forest cutting plan under the Forest Cutting Practices Act,
G. L. c. 132. The forest cutting plan authorized Rodriguez to
perform work on his land in areas identified as stand 1 and
stand 2. The work to be performed in stand 1 consisted of
"clear-cut[ting] for commercial harvesting," after which the
land would be "replanted with American Chestnut and Sugar Maple
seedlings." The work to be performed in stand 2 consisted of
"non-commercial thinning" with the "[m]arked trees [to] be
girdled and left standing." The forest cutting plan was valid
for two years, with the possibility of two one-year extensions.
See 302 Code Mass. Regs. § 16.04(15) (2018).
Subsequently, the town's counsel notified Rodriguez that he
needed to file a notice of intent with the commission before
conducting the work because some of it would occur in a wetlands
resource area and its buffer zone. In response Rodriguez filed
a request for a determination of applicability with the
commission, seeking a determination that the proposed work was
agricultural in nature and thus exempt from the Wetlands
Protection Act. Concluding that the work was not exempt, the
2 commission issued a positive determination of applicability.
Rodriguez appealed to the Massachusetts Department of
Environmental Protection (DEP), which issued a superseding
determination of applicability likewise concluding that the work
was not exempt. Rodriguez then appealed that determination to
the DEP's Office of Appeals and Dispute Resolution (OADR).
In June 2021, while Rodriguez's appeal to OADR was pending,
a DCR forester sent Rodriguez a letter that clarified, among
other things, that (1) because the trees in stand 2 "are to be
girdled and left standing, there would be no equipment needed or
operating in the wetland areas"; (2) "[t]hese two activities as
indicated on the plan," i.e., clear-cutting of stand 1 and
girdling of specific trees in stand 2, "are the only activities
that would be exempt under the Wetlands Protection Act"; and
(3) if Rodriguez "desire[d] to undertake forest mulching or
another type of operation in the wetland area (stand 2)," he
would "need to seek approval for this work from the" commission.
Based on this letter and after consultation with DCR, DEP
changed course, taking the position that the proposed work was
exempt from the Wetlands Protection Act because DCR's approval
of the forest cutting plan meant that the work described therein
qualified as normal maintenance or improvement of land in
agricultural use under 310 Code Mass. Regs. § 10.04.
3 Over the commission's opposition, the OADR hearing officer
adopted DEP's position, concluding that, as a matter of law, the
forest cutting plan was itself "sufficient evidence that the
activities approved in [it] will be conducted on land in
agricultural use." In so concluding, the hearing officer
stressed that "[t]he land is only in agricultural use and exempt
from the Wetlands [Protection] Act as to those specific
activities approved in [the] forest cutting plan" and that
"[t]he failure to comply with the forest cutting plan and
applicable laws triggers numerous enforcement mechanisms to
bring the land and activities back into compliance and deter
noncompliance in the future." DEP then adopted the hearing
officer's recommended decision as its final decision and issued
a final superseding determination of applicability, which
provided that "ONLY the specific activities approved in the
[forest cutting plan]" were exempt from the Wetlands Protection
Act. Neither Rodriguez nor the commission appealed.
On April 19, 2023, after a public meeting, the commission
issued the enforcement orders that are the subject of this case,
alleging that Rodriguez had conducted "[g]rubbing of vegetation
and trees within a [bordering vegetated wetland] and
intermittent stream without a determination [of applicability]
or an [o]rder." The enforcement orders noted that "[t]he
4 [f]orest [c]utting [p]lan associated with the parcel ha[d]
expired" and directed Rodriguez to cease and desist his
activities and file a restoration plan and notice of intent by
June 6, 2023. In May 2023 Rodriguez filed this action for
certiorari review, claiming that the commission acted
arbitrarily and capriciously and beyond its authority in issuing
the enforcement orders.
Discussion. The certiorari statute, G. L. c. 249, § 4,
provides for limited judicial review of administrative
proceedings "to correct substantial errors of law apparent on
the record adversely affecting material rights" (quotations and
citation omitted). Emma v. Massachusetts Parole Bd., 488 Mass.
449, 454 (2021). The standard of review in certiorari cases
"may vary according to the nature of the action for which review
is sought." Forsyth Sch. for Dental Hygienists v. Board of
Registration in Dentistry, 404 Mass. 211, 217 (1989). Where, as
here, "the action being reviewed is not a decision made in an
adjudicatory proceeding and where the action entails matters
committed to or implicating a board's exercise of administrative
discretion, the court applies the 'arbitrary and capricious'
standard." Garrity v. Conservation Comm'n of Hingham, 462 Mass.
779, 792 (2012). "A decision is not arbitrary and capricious
unless there is no ground which 'reasonable [persons] might deem
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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-885
JAMES M. RODRIGUEZ
vs.
CONSERVATION COMMISSION OF NORWELL.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
James M. Rodriguez brought a certiorari action under G. L.
c. 249, § 4, challenging two enforcement orders issued to him by
the Norwell Conservation Commission (commission). The
enforcement orders alleged that Rodriguez was conducting
forestry work on his land in violation of the Wetlands
Protection Act, G. L. c. 131, § 40, and the town of Norwell's
(town) wetlands bylaw and directed that he cease and desist and
restore the resource areas to their original condition. On the
parties' cross-motions for judgment on the pleadings, a Superior
Court judge concluded that Rodriguez failed to show that the
enforcement orders were invalid, and judgment entered in favor
of the commission. Rodriguez appeals, arguing principally that the enforcement orders are barred by claim and issue preclusion.
We affirm.
Background. On December 12, 2018, the Massachusetts
Department of Conservation and Recreation (DCR) issued Rodriguez
a forest cutting plan under the Forest Cutting Practices Act,
G. L. c. 132. The forest cutting plan authorized Rodriguez to
perform work on his land in areas identified as stand 1 and
stand 2. The work to be performed in stand 1 consisted of
"clear-cut[ting] for commercial harvesting," after which the
land would be "replanted with American Chestnut and Sugar Maple
seedlings." The work to be performed in stand 2 consisted of
"non-commercial thinning" with the "[m]arked trees [to] be
girdled and left standing." The forest cutting plan was valid
for two years, with the possibility of two one-year extensions.
See 302 Code Mass. Regs. § 16.04(15) (2018).
Subsequently, the town's counsel notified Rodriguez that he
needed to file a notice of intent with the commission before
conducting the work because some of it would occur in a wetlands
resource area and its buffer zone. In response Rodriguez filed
a request for a determination of applicability with the
commission, seeking a determination that the proposed work was
agricultural in nature and thus exempt from the Wetlands
Protection Act. Concluding that the work was not exempt, the
2 commission issued a positive determination of applicability.
Rodriguez appealed to the Massachusetts Department of
Environmental Protection (DEP), which issued a superseding
determination of applicability likewise concluding that the work
was not exempt. Rodriguez then appealed that determination to
the DEP's Office of Appeals and Dispute Resolution (OADR).
In June 2021, while Rodriguez's appeal to OADR was pending,
a DCR forester sent Rodriguez a letter that clarified, among
other things, that (1) because the trees in stand 2 "are to be
girdled and left standing, there would be no equipment needed or
operating in the wetland areas"; (2) "[t]hese two activities as
indicated on the plan," i.e., clear-cutting of stand 1 and
girdling of specific trees in stand 2, "are the only activities
that would be exempt under the Wetlands Protection Act"; and
(3) if Rodriguez "desire[d] to undertake forest mulching or
another type of operation in the wetland area (stand 2)," he
would "need to seek approval for this work from the" commission.
Based on this letter and after consultation with DCR, DEP
changed course, taking the position that the proposed work was
exempt from the Wetlands Protection Act because DCR's approval
of the forest cutting plan meant that the work described therein
qualified as normal maintenance or improvement of land in
agricultural use under 310 Code Mass. Regs. § 10.04.
3 Over the commission's opposition, the OADR hearing officer
adopted DEP's position, concluding that, as a matter of law, the
forest cutting plan was itself "sufficient evidence that the
activities approved in [it] will be conducted on land in
agricultural use." In so concluding, the hearing officer
stressed that "[t]he land is only in agricultural use and exempt
from the Wetlands [Protection] Act as to those specific
activities approved in [the] forest cutting plan" and that
"[t]he failure to comply with the forest cutting plan and
applicable laws triggers numerous enforcement mechanisms to
bring the land and activities back into compliance and deter
noncompliance in the future." DEP then adopted the hearing
officer's recommended decision as its final decision and issued
a final superseding determination of applicability, which
provided that "ONLY the specific activities approved in the
[forest cutting plan]" were exempt from the Wetlands Protection
Act. Neither Rodriguez nor the commission appealed.
On April 19, 2023, after a public meeting, the commission
issued the enforcement orders that are the subject of this case,
alleging that Rodriguez had conducted "[g]rubbing of vegetation
and trees within a [bordering vegetated wetland] and
intermittent stream without a determination [of applicability]
or an [o]rder." The enforcement orders noted that "[t]he
4 [f]orest [c]utting [p]lan associated with the parcel ha[d]
expired" and directed Rodriguez to cease and desist his
activities and file a restoration plan and notice of intent by
June 6, 2023. In May 2023 Rodriguez filed this action for
certiorari review, claiming that the commission acted
arbitrarily and capriciously and beyond its authority in issuing
the enforcement orders.
Discussion. The certiorari statute, G. L. c. 249, § 4,
provides for limited judicial review of administrative
proceedings "to correct substantial errors of law apparent on
the record adversely affecting material rights" (quotations and
citation omitted). Emma v. Massachusetts Parole Bd., 488 Mass.
449, 454 (2021). The standard of review in certiorari cases
"may vary according to the nature of the action for which review
is sought." Forsyth Sch. for Dental Hygienists v. Board of
Registration in Dentistry, 404 Mass. 211, 217 (1989). Where, as
here, "the action being reviewed is not a decision made in an
adjudicatory proceeding and where the action entails matters
committed to or implicating a board's exercise of administrative
discretion, the court applies the 'arbitrary and capricious'
standard." Garrity v. Conservation Comm'n of Hingham, 462 Mass.
779, 792 (2012). "A decision is not arbitrary and capricious
unless there is no ground which 'reasonable [persons] might deem
5 proper' to support it." Id., quoting T.D.J. Dev. Corp. v.
Conservation Comm'n of N. Andover, 36 Mass. App. Ct. 124, 128
(1994). We review the judge's decision on the cross-motions for
judgment on the pleadings de novo. See Hovagimian v. Concert
Blue Hill, LLC, 488 Mass. 237, 240 (2021).
Rodriguez contends that the commission acted arbitrarily
and capriciously in issuing the enforcement orders because they
conflict with DEP's final decision and final superseding
determination of applicability. Because of this conflict, he
argues, the enforcement orders are barred under the doctrines of
claim and issue preclusion. We do not agree that these
doctrines apply.1 A party invoking claim preclusion must show,
among other elements, that there is "identity of the cause of
action." Kobrin v. Board of Registration in Med., 444 Mass.
837, 843 (2005), quoting DaLuz v. Department of Correction, 434
Mass. 40, 45 (2001). Similarly, a party invoking issue
preclusion must show that "the issue in the prior adjudication
was identical to the issue in the current adjudication."
1 We will assume without deciding that principles of res judicata can be invoked, as a general matter, in nonadjudicatory proceedings before a local commission. Cf. Kobrin v. Board of Registration in Med., 444 Mass. 837, 843-845 (2005) (considering whether principles of res judicata barred adjudicatory proceeding before disciplinary board).
6 Kobrin, supra, quoting Tuper v. North Adams Ambulance Serv.
Inc., 428 Mass. 132, 134 (1998).
Here, the prior and current matters are not identical for
claim preclusion purposes because they did not arise "from the
same transaction or series of connected transactions." Laramie
v. Philip Morris USA Inc., 488 Mass. 399, 411 (2021). The DEP
proceedings concerned whether the activities approved in the
forest cutting plan were exempt from the Wetlands Protection
Act. The enforcement orders concerned activities that Rodriguez
conducted on his land after the forest cutting plan expired. As
the matters arose from different sets of facts, claim preclusion
does not apply. See id. at 411-412.
Likewise, issue preclusion does not apply because the issue
decided by DEP is not the same as the issue addressed in the
enforcement orders. The DEP decision held that, as a matter of
law, the "specific activities approved in [the] forest cutting
plan" were exempt from the Wetlands Protection Act because of
the interplay between DEP's regulation of wetland resource areas
and DCR's regulation of forestry activities. Again, the issue
raised by the enforcement orders is the lawfulness of the
activities that Rodriguez conducted on his land after the forest
cutting plan expired. As this was neither litigated nor decided
7 in the DEP proceedings, issue preclusion is inapplicable. See
Kobrin, 444 Mass. at 843.2
To the extent Rodriguez is arguing that the issuance of a
forest cutting plan means that the land is forever deemed to be
in agricultural use, he fails to provide any authority
supporting that proposition. Moreover, the argument is
inconsistent with 302 Code Mass. Regs. § 16.04(15) (2018), which
states that "[a]ll logging, engineering and stabilization
requirements of the approved forest cutting plan must be
fulfilled by the completion date of the operation or by the
expiration date [of the forest cutting plan], whichever is
sooner." We note that there appears to be no legal impediment
to Rodriguez's submitting another forest cutting plan for
approval by DCR, and the commission acknowledged at oral
2 The commission represented at oral argument that Rodriguez's recent activities also exceeded the scope of the work described in the forest cutting plan. If this is true, then claim and issue preclusion plainly would not bar the enforcement orders because DEP's final decision and final superseding determination of applicability concerned only those activities that were specifically approved in the forest cutting plan.
8 argument that he is free to do so. Accordingly, Rodriguez has
failed to demonstrate any error on this record that adversely
affected his material rights. See Emma, 488 Mass. at 454.
Judgment affirmed.
By the Court (Henry, Shin & Brennan, JJ.3),
Clerk
Entered: April 30, 2025.
3 The panelists are listed in order of seniority.