RIAD RISKALLA & Another v. TOWN OF NORTH READING & Others.

• Court: Massachusetts Appeals Court
• Decided: October 8, 2024
• Docket: 23-P-0720
• Status: Unpublished

Opinion

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

23-P-720

RIAD RISKALLA & another1

vs.

TOWN OF NORTH READING & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Riad and Nabila Riskalla, appeal from a

judgment upholding an enforcement order issued against them by

the conservation commission (commission) of the town of North

Reading (town). The order requires the plaintiffs to remove

certain unpermitted improvements on their residential property

because they violate the town's wetlands protection bylaw

(bylaw). The plaintiffs brought an action in the nature of

certiorari under G. L. c. 249, § 4, in the Superior Court. On

1 Nabila Riskalla.

2North Reading Conservation Commission; and Leah Basbanes, Lori Mitchener, Tomas Sanchez, Melissa Campbell, Lauren Beshara, James Cheney, and Randall Mason, all in their capacities as agents or members of the conservation commission. cross motions for judgment on the pleadings, the judge granted

the commission's motion, affirmed the commission's decision, and

dismissed the complaint. Because the commission did not act

arbitrarily and capriciously or otherwise abuse its discretion

in issuing the enforcement order, we affirm.

Background. The purpose of the Wetlands Protection Act,

G. L. c. 131, § 40 (act), "is to preserve and protect coastal

and other wetlands bordering rivers and other bodies of water."

Garrity v. Conservation Comm'n of Hingham, 462 Mass. 779, 785

(2012). The act's protections extend to activities in areas

"within 100 feet" of a protected area, known as the buffer zone,

if, "in the judgment of the issuing authority," the activity

will alter an area subject to protection. 310 Code Mass. Regs.

§ 10.02(2)(b) (2014). Municipal conservation commissions have

authority to issue enforcement orders to correct violations of

the act and associated regulations. G. L. c. 131, § 40; 310

Code Mass. Regs. § 10.08. The town's bylaw protects "[a]ny

freshwater wetland" and "[a]ny land within 100 feet of [the

wetland]," bylaw § 1.3 (2001), and accompanying regulations

provide that improvements to a property may not encroach upon

twenty-two percent or more of protected lands. Id., § 4.7(c).

In 2010, the town issued an order of conditions to the

prior owners of the property in connection with their planned

construction of a four-bedroom house. The order of conditions

2 directed the owners, upon completion of the work, to provide the

commission with an "As-Built plan" of the improvements to the

property, including "[a]ny deviations from the approved plans,"

and also to request a certificate of compliance from the

commission based upon that plan. The plan submitted with the

2010 application included only drawings for a four bedroom house

and did not contemplate additional improvements around the house

structure. The house was built, and the town's building

inspector issued a certificate of occupancy in May 2013. No

certificate of compliance from the commission was ever issued.

The prior owners did not submit an "As-Built plan" of the

property to the commission until November 2021. The "As-Built

plan" showed a paved driveway, walkway, outdoor patios, fire

pit, and small sports court, none of which were included in the

2010 application. At a hearing on December 8, 2021, the

commission determined that the "As-Built plan" did not match the

plan submitted to the commission in 2010, and the improvements

exceeded and violated the buffer zone encroachment limit. The

next day, the commission issued an enforcement order requiring

the removal of the improvements by June 30, 2022. Meanwhile,

the prior owners had entered into a purchase and sale agreement

with the plaintiffs on October 20, 2021. On December 10, a

representative of the plaintiffs reached out to the commission

and said that "[t]hey are a bit confused as to what actually

3 needs to be done. Who is supposed to be doing the work?" The

plaintiffs acquired the property by quitclaim deed on December

14.

On March 9, 2022, the commission reviewed correspondence

from another representative of the plaintiffs stating that they

did not wish to comply with the 2021 enforcement order but

rather wanted "to find a way to keep [the] sport court, patio,

and . . . to create resolutions for the board to agree to in

order to allow this." On April 19, 2022, the commission issued

a new enforcement order to the plaintiffs. The order contained

identical requirements to the order issued on December 9, 2021,

requiring removal of the paved driveway, walkway, patios, fire

pit, and sports court. The plaintiffs then filed this action.

Discussion. "In a review under certiorari, the court is

limited to correcting substantial errors of law apparent on the

record adversely affecting material rights" (quotation omitted).

FIC Homes of Blackstone, Inc. v. Conservation Comm'n of

Blackstone, 41 Mass. App. Ct. 681, 684 (1996). 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). "In an action in the nature of certiorari

challenging a wetlands permit decision made by a conservation

commission pursuant to a local by-law, our review is limited at

most to whether the commission's decision is supported by

4 substantial evidence in the administrative record, whether the

commission's action was arbitrary and capricious, and whether

the commission committed an abuse of discretion or other error

of law." Id. at 733-734.

The plaintiffs argue that they need not comply with the

2022 enforcement order issued against them because, under the

statute of limitations set forth in G. L. c. 131, § 91, the

commission was required to issue any enforcement order within

two years after the improvements were built, presumably around

the same time construction on the house was completed in April

2013. The act, however, provides that "[a]ny person" who

acquires property on which work has been done in violation of

the act "shall forthwith comply with any such order or restore

[the property] to its condition prior to any such violation;

provided, however, that no action . . . shall be brought . . .

unless such action is commenced within three years following the

recording of the deed." G. L. c. 131, § 40. In Conservation

Comm’n of Norton v. Pesa, 488 Mass. 325, 326 (2021), the Supreme

Judicial Court held that this three-year statute of repose is

"personal" to each new owner. That means that once a property

"changes hands," the act "permits the commission to commence an

action against the subsequent owner, so long as it does so

within three years of the triggering event -- the recording of

the deed or date of death by which title was acquired." Id. In

5 this case, the commission had three years after the date the

plaintiffs acquired the property, December 14, 2021, to issue an

enforcement order against them. Its April 19, 2022 order was

therefore timely.3

Nor is the 2022 enforcement order void due to what the

plaintiffs call the "surprise exemption" in Pesa. No such

exemption exists. In Pesa, the Supreme Judicial Court explained

that "[i]nterpreting the statute of repose to apply personally,

and to permit enforcement against each subsequent owner," is

consistent with the act's recording scheme because both orders

of conditions and certificates of compliance must be recorded in

the registry of deeds or in the Land Court. Pesa, 488 Mass. at

336. This recording scheme prevents potential purchasers of a

property from being surprised that "any work accomplished under

[an order of conditions] may have been done in violation of the

order." Id. As in Pesa, the plaintiffs here cannot claim to

We do not address the validity of the 2021 enforcement 3

order because the plaintiffs failed to commence this action within sixty days of its issuance, as G. L. c. 249, § 4, requires, see McLellan v. Commissioner of Correction, 29 Mass. App. Ct. 933, 934 (1990), and because, in any event, the validity of the 2021 enforcement order against the prior owners is immaterial to the authority of the commission to issue a new order against the plaintiffs as subsequent owners. General Laws c. 131, § 40, allows a conservation commission to bring an enforcement order "within three years of each subsequent acquisition of property" even if it could not have lawfully issued an order against the prior owner. Pesa, 488 Mass. at 335.

6 have been surprised by the 2022 enforcement order because the

order of conditions issued in 2010 and the commission did not

issue a certificate of compliance thereafter. Indeed, the

record shows that the plaintiffs knew about the enforcement

order issued against the prior owners on December 9,

2021 -- less than a week before the plaintiffs closed on the

property -- and in fact inquired at that time as to who had to

remove the encroaching improvements. As discussed supra, the

2022 enforcement order issued against the plaintiffs is

identical in substance to the 2021 order issued against the

prior owners.

The judge also properly rejected the plaintiffs' argument

that, under the doctrines of collateral estoppel and promissory

estoppel, the town's issuance of a certificate of occupancy in

May 2013 precludes any enforcement action against them now. As

a factual matter, a certificate of occupancy is distinct from a

certificate of compliance, which the 2010 order of conditions

required to be obtained based on the "As-Built plan" of the

house's construction, and there is no requirement that the

commission issue a certificate of compliance before the town's

building inspector issues a certificate of occupancy. As a

legal matter, because no pertinent issue of fact or law was

"actually litigated and determined by a valid and final

judgment" in a prior action, collateral estoppel does not apply.

7 McLaughlin v. Lowell, 84 Mass. App. Ct. 45, 56 (2013), quoting

Alba v. Raytheon Co., 441 Mass. 836, 841 (2004). More

generally, "[e]stoppel theories generally do not apply against

the government," Harrington v. Fall River Hous. Auth., 27 Mass.

App. Ct. 301, 308 (1989), and they are particularly disfavored

where their application would "negate requirements of the law

intended to protect the public interest [quotation omitted]."

O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555, 558

(1986). Because the relief that the plaintiffs seek would

negate the purpose of the wetlands protection bylaw and

regulations, which promote flood and erosion protection,

biodiverse habitats for wildlife, water purification processes,

and other public benefits, principles of estoppel do not apply.4

Finally, we agree with the judge that the plaintiffs'

claims under the Massachusetts Civil Rights Act, G. L. c. 12,

§§ 11H, 11I, fail because they do not allege that any individual

government official interfered or attempted to interfere with

4 The plaintiffs also cite a letter from an environmental consulting firm that contends that the total impervious surface of the improvements is 17.6%, under the twenty-two percent encroachment limitation set forth in the regulations. The letter is dated October 12, 2023, well after the Superior Court entered judgment and the plaintiffs filed their notice of appeal. Because in a certiorari proceeding "judicial review is confined to the record of the administrative proceedings below," Mello Const., Inc. v. Division of Capital Asset Mgmt., 84 Mass. App. Ct. 625, 631 n.12 (2013), we do not consider the letter or the plaintiffs' arguments concerning it now.

8 their constitutionally protected rights, and because a

municipality is not a "person" that may be sued under that law.

See Howcroft v. Peabody, 51 Mass. App. Ct. 573, 591-592 (2001).

See also Batchelder v. Allied Stores Corp., 393 Mass. 819, 822-

823 (1985). Further, the plaintiffs' assertion that the

enforcement order violates various constitutional provisions is

generally unsupported by reasoned analysis or relevant authority

and, as such, fails to rise to the level of adequate appellate

argument as required by Mass. R. A. P. 16 (a) (9) (A), as

appearing in 481 Mass. 1628 (2019). See Cameron v. Carelli, 39

Mass. App. Ct. 81, 85-86 (1995). In addition, the plaintiffs'

claim that the enforcement order amounts to an unconstitutional

taking fails because they have suffered neither the physical

occupation or invasion of their property nor the deprivation of

all of its economically viable use. See Lucas v. South Carolina

Coastal Council, 505 U.S. 1003, 1015-1016, 1028 (1992); Blair v.

9 Department of Conservation & Recreation, 457 Mass. 634, 639, 641

(2010).5

Judgment affirmed.

Order denying motion for reconsideration affirmed.

By the Court (Meade, Hershfang & Toone, JJ.6),

Clerk

Entered: October 8, 2024.

5 To the extent we have not specifically addressed any of the plaintiffs' arguments, we have considered all of them and see no basis on which to disturb the judgment.

6 The panelists are listed in order of seniority.