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-1186
JEFFREY A. KING & another1
vs.
CONSERVATION COMMISSION OF HARWICH (and a consolidated case2).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs appeal from two Superior Court judgments
that affirmed separate orders of the conservation commission of
Harwich (commission) concerning the plaintiffs' violations of
the town of Harwich's wetlands protection bylaw (bylaw) on the
plaintiffs' property. The first order found that the plaintiffs
had unlawfully constructed an addition and porch within fifty
feet of a wetland, and it required them to remove those
structures. The second order denied the plaintiffs' application
1 James M. Kelly.
2Jeffrey A. King & another vs. Conservation Commission of Harwich. for what was in effect a variance to allow the structures to
remain. We affirm the judgments upholding the orders.
Background. We recite the facts as they appear in the
records of the two commission proceedings, as filed by the
commission in response to the Superior Court complaints. We
reserve certain details for later discussion.
1. Enforcement proceeding. In May 2016, the commission's
administrator met with one of the plaintiffs at the property and
found that the plaintiffs, without a permit, had constructed a
porch and addition within the fifty-foot "no-disturb zone" that
section 310-2.A of the bylaw and section 1.04(3) of the
commission's wetland protection regulations (regulations)
establish around wetlands in Harwich.3 The administrator issued
an order directing the plaintiffs or their representative to
appear at a show-cause hearing before the commission to discuss
the matter. At that hearing, the plaintiffs were represented by
Arthur Lafranchise, a friend who had a small financial interest
in the property. Lafranchise acknowledged that the construction
had occurred without a permit. The hearing was continued to a
3 The administrator also found that the construction violated G. L. c. 131, § 40, the State wetlands protection act (WPA). The ensuing commission proceedings thus involved the enforcement of the WPA as well as the town bylaw. We need not discuss the WPA aspect of the proceedings except when relevant to specific issues the plaintiffs raise on appeal.
2 future commission meeting to allow for submission of additional
information.
When the hearing resumed in July 2016, the commission had
before it a 2016 plan, and other materials prepared for the
plaintiffs, showing the new porch and a ten-foot by twelve-foot
addition as entirely within a line fifty feet from the edge of
the wetland (i.e., entirely within the no-disturb zone).
Lafranchise argued that, rather than requiring removal of the
new structures, the commission should impose a significant fine.
The commission voted to find the plaintiffs in violation of the
bylaw and to require the structures' removal. In its written
decision, the commission further found that the plaintiffs' new
porch was, at its closest point, only nine feet from the edge of
the wetland.
The plaintiffs sought certiorari review in Superior Court.
The commission answered and counterclaimed for enforcement of
its order. The plaintiffs moved to dismiss the counterclaims on
the ground that the commission lacked standing to seek
enforcement of its order; a judge (first judge) denied that
motion. On the parties' cross motions for judgment on the
pleadings, the first judge ordered judgment affirming the
commission's decision and, on the commission's counterclaims,
3 requiring the plaintiffs to remove the structures and restore
the area to its previous condition. The plaintiffs appealed.
2. Variance proceeding. On May 4, 2017, while the first
Superior Court case was pending, the plaintiffs filed with the
commission an after-the-fact notice of intent, which included an
application for a variance from the no-disturb-zone bylaw, to
allow the structures to remain in place. The plaintiffs' filing
included a written waiver of the statutory requirement for a
hearing within twenty-one days of their application. See G. L.
c. 131, § 40, seventeenth par. The waiver was signed by the
plaintiffs' new representative, Paul Shea. The commission began
its hearing on June 7, 2017, continued it to and completed it on
June 21, 2017, and thereafter timely issued a decision denying
the variance request.
The plaintiffs then commenced a second Superior Court
action, seeking certiorari review of the commission's variance
decision. On the parties' cross motions for judgment on the
pleadings, a judge (second judge) affirmed the decision. The
plaintiffs again appealed, and their two appeals were
consolidated in this court.
4 Discussion. We review the commission's enforcement order
to determine if it was arbitrary and capricious.4 See Garrity v.
Conservation Comm'n of Hingham, 462 Mass. 779, 792 (2012). We
will review the commission's variance decision as we would a
wetlands permit decision; such "review is limited at most to
whether the commission's decision is supported by substantial
evidence in the administrative record . . . [or] arbitrary and
capricious, and whether the commission committed an abuse of
discretion or other error of law." Delapa v. Conservation
Comm'n of Falmouth, 93 Mass. App. Ct. 729, 733–734 (2018). In a
certiorari case, "[b]ecause we are reviewing the same record of
[commission] proceedings as was before the Superior Court, we
review the record . . . without giving the view of the Superior
Court judge any special weight" (quotation and citation
omitted). P.J. Keating Co. v. Acushnet, 104 Mass. App. Ct. 65,
69–70 (2024).
4 We need not determine whether the plaintiffs are correct in arguing, that the enforcement order must also be supported by substantial evidence, or that, to obtain a judicial enforcement order, the commission must prove the existence of a violation. See Fafard v. Conservation Comm'n of Reading, 41 Mass. App. Ct. 565, 567-568 (1996); Bourne v. Austin, 19 Mass. App. Ct. 738, 742 (1985), citing Brotherhood of Alpha Upsilon, Inc. v. Zoning Bd. of Appeals of Bridgewater, 15 Mass. App. Ct. 991, 992 (1983). The commission's enforcement order and its filings in Superior Court meet those standards in any event.
5 1. Evidence supporting enforcement order. The plaintiffs
first argue that there is insufficient evidence in the record to
support the commission's enforcement order. Because the
plaintiffs do not specify precisely what evidence is lacking, we
will assume their claim is that there was insufficient evidence
that the new construction occurred in the fifty-foot no-disturb
zone. We are not persuaded.
The 2016 plan and related materia1s, prepared for the
plaintiffs and before the commission in the enforcement
proceeding, plainly showed that the new structures were less
than fifty feet from the edge of the wetland. Although this
evidence was sufficient, the record also shows that the
commission's administrator had personally visited the site with
one of the plaintiffs; the administrator described for the
commission the violation she observed, and a commission member
visited the site several times and agreed with the
administrator's assessment. Notably, the plaintiffs'
representative, Lafranchise, agreed that the work had been done
without a permit and did not contest that the work was within
the no-disturb zone; he argued only that, rather than requiring
6 removal of the structures, the commission should impose a
significant fine.5
2. Salt marsh. The plaintiffs next argue that there was
no evidence to support the commission's statement in its
enforcement order that one part of the new porch was only nine
feet from the edge of the "wetland (Salt Marsh)." Section 310-
2.A of the bylaw defines the no-disturb zone as the zone fifty
feet landward of "an abutting resource area," which section
1.04(3) of the regulations further describes as including, among
other things, "any fresh water wetland" and any "marsh." The
area where the construction occurred is shown on the 2016 plan
as lying within a line labeled "50' from edge [of] wetland."
Whether it is a freshwater wetland or a salt marsh makes no
difference here. The plaintiffs' argument therefore does not
entitle them to relief.6
3. "Alteration" of wetland resource area. The plaintiffs
challenge the enforcement order on the ground that there was no
evidence their construction activity produced any "alteration"
5 Lafranchise's failure to contest the existence of a violation is not itself evidence, but it helps explain why the evidence of a violation is not more developed.
6 We note that a 2017 plan submitted by the plaintiffs in the variance proceeding includes not only the delineation of the wetland's edge but also a flag marking the area as a "Coastal Wetland/Salt Marsh."
7 of the wetland, as they claim is required to find a violation
under the State wetlands protection act (WPA), G. L. c. 131,
§ 40, and the bylaw. See note 3, supra. As the plaintiffs
point out, the commission, in the course of the later variance
proceeding, approved the construction insofar as it implicated
the WPA, and denied the variance only as to the requirements of
the bylaw. Thus the question whether the enforcement order was
correct in finding an alteration of a wetland in violation of
the WPA is moot and need not be resolved.
Insofar as the bylaw is concerned, the plaintiffs err in
claiming that a finding of "alteration" is a prerequisite to
finding a violation of the bylaw. This is in part because the
plaintiffs conflate the commission's jurisdiction with the
substantive requirements applicable within that jurisdiction.
The plaintiffs rely on section 310-3 of the bylaw, entitled
"Jurisdiction." Under that section, "[e]xcept as permitted by
the [commission] or as provided for in this bylaw, no person
shall commence to remove, fill, dredge, build upon, degrade,
discharge into, or otherwise alter any freshwater or coastal
wetland resource areas" or lands within one hundred feet thereof
(emphasis added). The plaintiffs have not argued that the
catchall phrase "otherwise alter" means that only those building
activities that "alter" a wetland resource area are within the
8 commission's jurisdiction. Thus, by "commenc[ing] to . . .
build" their addition and porch upon land within one hundred
feet of the wetland, the plaintiffs, at a minimum, subjected
themselves to the commission's jurisdiction.
As for whether there was a violation, because the
construction activity undisputedly had not been "permitted by
the [commission]," section 310-3 makes it necessary to determine
whether the activity was undertaken "as provided for in [the]
bylaw." The commission permissibly found that it was not. What
placed the plaintiffs in violation is that, contrary to the no-
disturb zone provision in section 310-2.A, they "buil[t] within
or upon" the no-disturb zone without being "expressly allowed
[to do so] by a variance from the [commission]." And section
1.04(3) of the regulations provides that, with certain
exceptions not claimed to be relevant here, "no new structures
will be permitted in the no-disturb zone." Nothing in section
310-2.A confines its reach to only those building activities
that "alter" the no-disturb zone. Therefore, regardless of
whether there was any such alteration, we see no error in the
commission's conclusion that the plaintiffs violated the bylaw.7
7 The plaintiffs' conclusory suggestion in a single sentence of their brief that this violation warranted only "a single fine," does not rise to the level of appellate argument under Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019), and we decline to consider it. See Maroney v. Planning
9 4. Order for removal of structures. The plaintiffs argue
that the commission had no authority under the bylaw to order
removal of the structures and at most could order the plaintiffs
only to file an after-the-fact notice of intent seeking a
variance from the no-disturb zone requirements. The plaintiffs
base this argument on their view that "there was no evidence
that the construction altered any wetland." As discussed above,
however, the commission could and did find a violation
regardless of whether there was any such alteration.
The plaintiffs further claim that the commission's decision
to require removal of the new structures, instead of merely
imposing a fine, was impermissibly motivated by a desire to
impose "punishment" for the plaintiffs' failure to apply for
permission for the construction. But the plaintiffs cite no
provision of the bylaw or regulations, or any other law, that
limited the commission's discretion in selecting a remedy here.
Moreover, even if the plaintiffs had persuaded us that the
removal order was "punishment" (which they have not), a
reviewing court may not displace an agency's discretionary
choice of a sanction absent "the most extraordinary of
circumstances," and none are present here. Levy v. Board of
Bd. of Haverhill, 97 Mass. App. Ct. 678, 683 n.8 (2020) (claims not adequately argued on appeal are waived).
10 Registration & Discipline in Med., 378 Mass. 519, 528-529
(1979).
5. Commission's standing to seek judicial enforcement.
The plaintiffs argue that, both under the WPA and under the
bylaw, the commission lacked "standing" to assert counterclaims
for enforcement of its order that the structures be removed.8 As
for the WPA, the plaintiffs note that it allows for enforcement
by a court with equity jurisdiction "upon the petition of . . .
a city or town." G. L. c. 131, § 40, thirtieth par. The
plaintiffs argue that the commission is not the same as the town
and thus cannot seek enforcement of the WPA.
If it were necessary to reach this argument, we would
reject it, essentially for the reasons explained immediately
infra with respect to the bylaw. The argument is moot, however,
because, as already discussed, the commission later approved the
construction insofar as it implicated the WPA. The commission
thus can no longer seek the structures' removal under the WPA.
8 Although we adopt as a matter of convenience the plaintiffs' characterization of their argument as going to "standing," the argument appears to relate more to whether the counterclaims were asserted in the name of the real party in interest, a matter best addressed under Mass. R. Civ. P. 17 (a), 461 Mass. 1401 (2011). We do not imply that the counterclaims here were defective in that regard.
11 The question whether it properly did so earlier in this
litigation is now academic.9
As for the commission's ability to assert its counterclaims
for enforcement of the bylaw, the plaintiffs point to bylaw
section 310-11.C, which provides that, "[u]pon request of the
[c]ommission, the [s]electmen and the [t]own [c]ounsel may take
legal action for enforcement under civil law." The plaintiffs
assert that the commission is not the same as the selectmen (or
selectboard) and thus could not assert its counterclaims.
Notably, the plaintiffs' argument is not that the selectboard
and town counsel did not approve the filing of the counterclaims
in accordance with usual town procedures. The plaintiffs argue
only that the counterclaims were not asserted in the name of the
correct party.
The bylaw, however, does not require that, when the
selectboard and town counsel take enforcement action, they do so
in their own names. At a minimum, the selectboard may
authorize, and town counsel may file, a suit in the name of the
9 The commission's brief suggests that it could still press the request made in one of its counterclaims to enforce its order imposing civil penalties for the plaintiffs' actions before they obtained WPA approval for the structures. The Superior Court, however, did not grant that relief, and the commission did not cross-appeal from that aspect of the court's judgment. Thus, whether the commission properly counterclaimed for penalties under the WPA is no longer a live issue.
12 town. See G. L. c. 40, § 2 ("A town may in its corporate
capacity sue and be sued by its name, and may appoint necessary
agents therefor"). Here, the counterclaims were asserted in the
name of the "Town of Harwich Conservation Commission."10 The
plaintiffs fail to explain how this party designation is
materially different from the designation, "Town of Harwich."
Nothing in the statute authorizing cities and towns to establish
conservation commissions, G. L. c. 40, § 8C, suggests that such
a commission has any corporate or other legal existence separate
from the municipality that created it. Thus the addition of the
phrase "Conservation Commission" to the designation "Town of
Harwich" does not change the nature of the party asserting the
counterclaims in any way that appears relevant, or prejudicial
to the plaintiffs.11 We therefore reject the plaintiffs' attack
on what they characterize as the commission's standing.
6. Twenty-one-day hearing requirement. The plaintiffs
argue that the commission, once it received the plaintiffs'
10 The plaintiffs do not argue that counsel representing the conservation commission of Harwich is not town counsel.
11If the sue-and-be-sued language of G. L. c. 40, § 2, were interpreted to require the counterclaims to have been asserted in the name of the town of Harwich rather than the "Town of Harwich Conservation Commission," then the plaintiffs' two complaints for judicial review would likewise have been defective, as they named as defendants only the members of the commission, rather than the town itself.
13 after-the-fact notice of intent (including their variance
request), failed to open a hearing within twenty-one days, as
required by the WPA, and therefore lost jurisdiction over the
matter. See Boston Clear Water Co., LLC v. Lynnfield, 100 Mass.
App. Ct. 657, 660-662 (2022), citing Oyster Creek Preservation,
Inc. v. Conservation Comm'n of Harwich, 449 Mass. 859, 864-866
(2007). The plaintiffs recognize that their representative,
Shea, signed a waiver of that requirement, which waiver
specified the date on which the hearing would be held (thirty-
four days later, rather than twenty-one days), but the
plaintiffs now claim that the waiver was involuntary and thus
invalid. Cf. Garrity, 462 Mass. at 790 (burden of proving
voluntariness of waiver of WPA's requirement of decision within
twenty-one days after hearing is on commission).
We will assume without deciding that Boston Clear Water
Co., LLC applies where (as here), even after expiration of the
twenty-one-day period, an applicant does not seek relief from
the Department of Environmental Protection. See Boston Clear
Water Co., LLC, 100 Mass. App. Ct. at 661. Nevertheless, the
plaintiffs' attack on the waiver signed by Shea is unavailing,
for the following reasons.
The waiver in Garrity was held involuntary because the
waiver form in that case had no designated place for signature
14 by the applicant and instead was merely referenced in a
checklist that the applicant was required to sign and file along
with his notice of intent. See Garrity, 462 Mass. at 789-790.
The court ruled that the checklist "would reasonably be
understood by an applicant to require submission of a signed
waiver form as part of the application" and thus did not
demonstrate a clear waiver of the applicant's rights (emphasis
added). Id. at 790. Here, in contrast, the commission's waiver
form contained a signature line, and it was signed by the
plaintiffs' representative, Shea. No more is required to prove
the voluntariness of the waiver, at least where, as here, the
plaintiffs cite no evidence to the contrary and instead rely
solely on unsupported allegations in their brief.
The plaintiffs further contend that the commission did not
meet what the plaintiffs assert is its burden under Garrity, 462
Mass. at 788-789, of showing that proper public notice of the
waiver was given. This contention, made in two short sentences
without record citations, does not rise to the level of
appellate argument and need not be considered. See note 7,
supra. In any event, the burden discussed in Garrity is that of
proving the voluntariness of the waiver of the requirement for a
decision within twenty-one days after a hearing -- not of
proving proper public notice of the waiver of the requirement
15 for a hearing within twenty-one days of the filing of the
application, which is what the plaintiffs claim was lacking
here. See Garrity, supra at 790. Moreover, here, the record
shows that notice of the agreed-upon hearing date (June 7, 2017)
was sent to abutters two days after the application was filed.
In addition, once the hearing was continued until the
commission's June 21, 2017, meeting, the record suggests that
the agenda for that meeting, which included the continued
hearing on the plaintiffs' application, was posted on the town's
website. In these circumstances, and absent any assertion by
the plaintiffs that any lack of public notice prejudiced them,
no relief based on the claimed lack of such notice is warranted.
7. Denial of variance. The plaintiffs assert that the
commission's decision failed to include sufficient explanation
of why the variance was denied. We are unconvinced. The
plaintiffs fail to acknowledge that the commission's regulations
create, at a minimum, a strong presumption against granting the
type of variance the plaintiffs sought. Section 1.04(1) of the
regulations explains that "few, if any, activities will be
allowed within [the no-disturb] zone. For example, no new
structures of any kind . . . will be permitted. The
[c]ommission intends to strictly apply and enforce all
requirements applicable to the no-disturb zone." Section
16 1.04(3) states that, with two exceptions not relevant here, "no
new structures will be permitted in the no-disturb zone."
Against this backdrop, section 1.13 of the regulations
allows for a variance in three main circumstances. The
commission found that none of them were applicable here. We
address them in turn.
First, a variance may be granted where the applicant makes
"a clear and convincing showing . . . that the proposed work
. . . will not adversely affect the interests protected by the
[b]ylaw," taking into account "other reasonable alternatives and
mitigation which would permit the proposed work to be undertaken
without deviating from the provisions of these regulations."
The commission found that one of the new structures came within
nine feet of the edge of the wetland and that the plaintiffs had
proposed no alternatives.
Second, a variance may be granted to avoid an
unconstitutional taking without compensation. The commission
found that denying the variance would not result in such a
taking.
Third, a variance may be granted to avoid a hardship. The
commission found that denying the variance would not result in a
hardship. Notably, the commission found that one of the
plaintiffs, before undertaking the construction, was aware of
17 the wetlands laws governing his property, yet he proceeded
without any permit from the commission or the town building
department.
These findings were sufficient to explain the denial of the
variance. The plaintiffs point to no specific provision of the
variance regulation as to which the commission's findings were
inadequate. Rather, the plaintiffs appear to take issue with
the reasonableness of the no-disturb zone provision itself. Yet
they offer no legal argument for invalidating it on that basis,
let alone an argument that they preserved for appeal.12
8. Adoption of no-disturb zone bylaw. The plaintiffs
claim that the no-disturb zone bylaw, at least as applied here,
functions as a zoning bylaw, but was not adopted in accordance
with the procedural requirements of the zoning enabling act,
G. L. c. 40A, § 5.
12Because we affirm on the merits the commission's decision denying the variance, we need not address the commission's argument for affirmance based on the issue preclusive effect of the Superior Court judgment upholding the enforcement order.
18 We see no indication that the plaintiffs raised this argument in
either of the Superior Court proceedings leading to these
appeals. The argument is therefore waived. See Albert v.
Municipal Court of Boston, 388 Mass. 491, 493-494 (1983).
Judgments affirmed.
By the Court (Henry, Sacks & Tan, JJ.13),
Clerk
Entered: January 30, 2026.
13 The panelists are listed in order of seniority.