Haney v. Dep't of Envtl. Prot.

100 Mass.App.Ct. 1105

173 N.E.3d 55 (Table)

Matthew HANEY, trustee,¹

v.DEPARTMENT OF ENVIRONMENTAL PROTECTION & others.²

19-P-1395

Appeals Court of Massachusetts.

Entered: August 10, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Matthew Haney, as trustee of the Gooseberry Island Trust and the SN Trust (trusts), appeals from a judgment affirming the final decision of the Department of Environmental Protection (department) denying the trusts’ proposal to build a bridge to connect their properties. We affirm.

Background. The trusts submitted a notice of intent (NOI) to the Mashpee Conservation Commission (commission) under the provisions of the Massachusetts Wetlands Protection Act, G. L. c. 131, § 40 (act), the department's wetlands regulations, and the Mashpee wetlands protection bylaw, seeking a permit to build a single-lane timber bridge, supported by timber piles, across the shallow channel that separates Gooseberry Island from Punkhorn Point on the mainland in Mashpee.⁴ See 310 Code Mass. Regs. § 10.05(4) (2014). The owners of the abutting properties on the mainland and members of the Wampanoag Tribe, which has shell fishing rights in the surrounding tidal flats, opposed the project. The commission denied the trusts’ proposal after a public hearing but failed to issue its decision within twenty-one days of the hearing's conclusion, as required by the act. See Garrity v. Conservation Comm'n of Hingham, 462 Mass. 779, 780 (2012).

The trusts requested superseding review by the department in accordance with 310 Code Mass. Regs. § 10.05(7)(b) (2014). The department's southeast regional office reviewed the commission's decision and issued a superseding order of conditions (SOC), also denying the timber bridge proposal, which the regional office concluded did not meet performance standards under the department's regulations because the bridge would destroy parts of, and otherwise adversely affect, the salt marsh in which the timber piles would be driven. See 310 Code Mass. Regs. § 10.32(3), (4) (2014).⁵ The trusts appealed the SOC by requesting an adjudicatory hearing in accordance with 310 Code Mass. Regs. § 10.05(7)(j)(2) (2014). While the appeal was pending, however, the trusts revised their proposed construction project to provide for a steel, rather than a timber, bridge. The new design avoided driving timber piles into the salt marsh and increased sunlight penetration. However, the steel bridge design was wider and heavier than the wooden bridge. The regional office supported the revised plan; the commission, as well as the abutting property owners and members of the Wampanoag tribe, who were permitted to intervene, opposed it.

After a one-day evidentiary hearing, a presiding officer of the department's Office of Appeals and Dispute Resolution (OADR) issued a recommended final decision affirming the department's denial of the original project proposal and denying review of the revised proposal because the steel bridge was, under the department's so-called "plan change policy," "substantially different" from the timber bridge first proposed and would therefore require review by the commission in the first instance. See Wetlands Program Policy 91-1: Plan Changes (rev. Mar. 1, 1995). Specifically, the presiding officer found that the trusts’ witnesses, who testified that the new design was not substantially different from the prior design and would decrease impacts to wetlands, were not persuasive. By contrast, he found that the commission's and the intervenors’ experts were more qualified than the trusts’ experts and effectively demonstrated that the steel bridge alternative was substantially different and that its construction would increase impacts to salt marsh and shellfish resources. The commissioner of the department adopted the presiding officer's recommendation, rendering it a final decision of the department. See 310 Code Mass. Regs. § 1.01(14)(b) (2004).

On behalf of the trusts, Haney sought judicial review under G. L. c. 30A, § 14. Acting on cross motions for judgment on the pleadings, see Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974), a Superior Court judge affirmed the department's final decision.

Discussion. 1. Standard of review. Under G. L. c. 30A, § 14 (7), "the Superior Court may reverse a decision of an administrative agency if the decision is based on an error of law or unwarranted by the facts, or is arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law." Flanagan v. Contributory Ret. Appeal Bd., 51 Mass. App. Ct. 862, 864 (2001). The standard of review is "highly deferential to the agency, which requires ... according due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it" (quotations and citations omitted). Friends and Fishers of Edgartown Great Pond, Inc. v. Department of Envtl. Protection, 446 Mass. 830, 836 (2006). "To set aside the department's decision, the plaintiff must show not only that the department violated its own regulations, but also that his substantial rights were prejudiced." Wilson v. Department of Social Servs., 65 Mass. App. Ct. 739, 747-748 (2006). On appeal, we "conduct[ ] an analysis of the same agency record" without giving "any special weight" to the Superior Court judge's decision. Doe, Sex Offender Registry Board No. 524553 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 525, 527 n.3 (2020), quoting Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Comm'n, 377 Mass. 897, 903 (1979).

2. Plan change policy. Haney first contends that the department's final decision denying review and approval of the trusts’ steel bridge proposal was based upon unlawful procedures and errors of law, see G. L. c. 30A, § 14 (7) (c ), (d ), because the department failed to follow its plan change policy. Under the policy, the department "may accept project revisions at any time while an NOI is under appeal." However, the department generally will not consider plan changes, and will require a new NOI to be filed with the local conservation commission, if the new proposal is "substantially different from the plan acted upon by the [c]onservation [c]ommission." "Substantial plan changes are deemed to be those changes which significantly modify the project configuration and which result in increased impacts to wetland resource areas."

Haney does not contest the presiding officer's determination that the steel bridge proposal was substantially different from the timber bridge proposal. Rather, he claims that the presiding officer erred by failing to consider the revised proposal under one of the policy's three exceptions, which provides that the department "may accept plan changes that are substantial" if the local conservation commission has "failed to act" on the NOI. The department concedes that the presiding officer had the discretion to act on the trust's plan change under the exception, but argues that the officer implicitly declined to exercise that discretion.

While not a "true regulation[ ]," the plan change policy is "functionally analogous to [a] regulation[ ]. Therefore, we treat the [department's] interpretation of the [policy] with the same deference we would its interpretation of its own regulations." DeCosmo v. Blue Tarp Redev., LLC, 487 Mass. 690, 699 n.16 (2021). See Carey v. Commissioner of Correction, 479 Mass. 367, 371 (2018), quoting G. L. c. 30A, § 1 (5) ("a regulation ‘includes the whole or any part of every rule, regulation, standard or other requirement of general application and future effect, including the amendment or repeal thereof, adopted by an agency to implement or interpret the law enforced or administered by it’ "); 310 Code Mass. Regs. § 2.01 (1994) (department's procedural regulation defining "regulation"). "If the regulation is plain and unambiguous, it should be interpreted according to its terms." DeCosmo, supra at 699, citing Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019). If the regulation is ambiguous, we generally refer to the agency's interpretation. See id. at 698-700. "Unless an agency's interpretation of its own regulation is arbitrary, unreasonable, or inconsistent with the plain terms of the rule, such interpretation is entitled to deference" (quotation and citation omitted). Carey, supra at 369.

We discern no error in the presiding officer's application of the policy. Under the policy, when changes to a plan are substantial, the department "may" accept them if one of the exceptions applies. "[T]he distinction between words of permission or discretion and words of command, including the distinction between ‘may’ and ‘shall,’ has been carefully observed" in the interpretation of statutory and regulatory schemes. Cline v. Cline, 329 Mass. 649, 652 (1953). "The use of the word ‘may’ denotes a discretionary power." Provencal v. Commonwealth Health Ins. Connector Auth., 456 Mass. 506, 513 (2010). The permissive language of the policy gave the officer broad discretion not to invoke the exception.

To the extent Haney argues that the presiding officer's error was in not recognizing that he had the discretionary authority to consider the changed proposal, see Carter v. Lynn Hous. Auth., 450 Mass. 626, 635 (2008), we discern no error or prejudice. First, the applicability of the exception was not before the presiding officer. The sole issues at the adjudicatory hearing were whether the trusts’ appeal of the SOC was proper⁶ and, if so, whether the revised project was substantially different from the original proposed project. The trusts did not raise the exception until after the hearing, in their post-hearing memorandum. Thus, the presiding officer was not required to consider it. See 310 Code Mass. Regs. § 1.01(6)(k) (2008) ("The Presiding Officer shall, absent good cause shown, limit the issues for adjudication to the issues identified in the notice of claim ... or as identified...