Wassenar v. Department of Environmental Protection (Lawyers Weekly No. 11-022-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1671 Appeals Court HAROLD B. WASSENAR vs. DEPARTMENT OF ENVIRONMENTAL PROTECTION. No. 12‑P‑1671. Worcester. September 17, 2013. ‑ March 5, 2014. Present: Hanlon, Brown, & Sullivan, JJ. Department of Environmental Protection. Penalty. Escrow. Practice, Civil, Dismissal of appeal, Waiver. Waiver. Civil action commenced in the Superior Court Department on January 20, 2011. A motion to dismiss was heard by Richard T. Tucker, J. Henry J. Lane for the plaintiff. Maryanne Reynolds, Assistant Attorney General, for the defendant. HANLON, J. The Department of Environmental Protection (DEP) issued a final decision against Harold B. Wassenar, requiring him to pay a civil administrative penalty of $ 80,586. Wassenar sought judicial review in the Superior Court under G. L. c. 30A, § 14. As a condition precedent to that court’s jurisdiction to review the administrative proceeding, Wassenar was required to post the full amount of the assessed penalty in an escrow account, unless he was able to demonstrate either an inability to pay the assessment or the presence of a substantial question of law. See G. L. c. 21A, § 16, inserted by St. 1985, c. 95, § 1. After a hearing, a judge of the Superior Court determined that Wassenar had satisfied neither condition. When Wassenar did not place the assessment amount in an escrow account, a second judge dismissed his complaint. Wassenar now appeals, arguing that the motion judge erred both in the determination of his ability to pay, and in the determination that there was no substantial issue of law. We affirm. Background. On November 6, 2007, the DEP assessed Wassenar an $ 80,586 civil administrative penalty for violations involving hazardous and solid waste storage on property he owned at 290 Millville Road in Uxbridge. Wassenar, contesting the penalty, submitted to the DEP an affidavit, arguing that the stored items were “consistent with the use of [his] premises as a home” and, in any event, were being stored there only temporarily. John Kronopolus, a DEP engineer, submitted a rebuttal affidavit challenging most of the assertions made in Wassenar’s affidavit. After an adjudicatory appeal hearing, the DEP issued a final penalty order; the order was affirmed after reconsideration. Wassenar then filed a complaint in the Superior Court pursuant to G. L. c. 30A, § 14, seeking judicial review of the DEP’s final order, claiming that the order was arbitrary […]
Categories: News Tags: 1102214, department, Environmental, Lawyers, Protection, Wassenar, Weekly
Care and Protection of Jamison (Lawyers Weekly No. 10-028-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11452 CARE AND PROTECTION OF JAMISON. Franklin‑Hampshire. September 4, 2013. ‑ February 20, 2014. Present: Ireland, C.J., Spina, Botsford, Gants, Duffly, & Lenk, JJ. Minor, Care and protection, Visitation rights. Jurisdiction, Care and protection of minor, Juvenile Court. Juvenile Court, Jurisdiction. Guardian. Evidence, Unavailable witness, Expert opinion. Witness, Child, Unavailability, Expert, Psychiatric examination, Psychologist. Petition filed in the Franklin and Hampshire Counties Division of the Juvenile Court Department on September 28, 2007. A motion for sibling visitation, filed on April 15, 2011, was heard by James G. Collins, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Ann Balmelli O’Connor, Committee for Public Counsel Services, for the siblings of Jamison. Margaret M. Geary for the guardians. Beth M. Nussbaum for Jamison. Lynne M. Murphy for Department of Children and Families. Cara M. Cheyette for the mother. LENK, J. We are called upon in this case to decide, first, whether the Juvenile Court has subject matter jurisdiction over petitions for sibling visitation pursuant to G. L. c. 119, § 26B (b), where the petitioning child is in State custody and his siblings are wards in the custody of legal guardians, and, second, whether the presumption of validity afforded parental decisions regarding grandparent visitation pursuant to G. L. c. 119, § 39D, recognized in Blixt v. Blixt, 437 Mass. 649, 657-658 (2002) (Blixt), cert. denied, 537 U.S. 1189 (2003), applies also to the decisions of fit guardians regarding sibling visitation. Finally, we must decide whether the judge abused his discretion when mandating the visitation sought by the petitioning sibling. In October, 2005, nine year old Jamison and three of his siblings — Christopher, then fifteen, Fergus, then five, and Rosalie, then four — became the wards of their maternal aunt, Darlene, and her spouse, Dorothy (guardians).[1] The guardians voluntarily terminated their guardianship of Jamison in October, 2007, and, in April, 2008, he was placed in the permanent custody of the Department of Children and Families (DCF).[2] In April, 2011, Jamison petitioned the Juvenile Court for visitation with Fergus and Rosalie pursuant to G. L. c. 119, § 26B (b). After finding that visitation would be in the best interests of all three children, a Juvenile Court judge ordered supervised visitation […]
Care and Protection of Yetta (Lawyers Weekly No. 11-003-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1540 Appeals Court CARE AND PROTECTION OF YETTA.[1] No. 12‑P‑1540. Middlesex. April 10, 2013. ‑ January 16, 2014. Present: Trainor, Graham, & Wolohojian, JJ. Parent and Child, Care and protection of minor, Custody of minor. Minor, Care and protection, Custody. Practice, Civil, Care and protection proceeding, Findings by judge. Petition filed in the Middlesex County Division of the Juvenile Court Department on January 12, 2010. The case was heard by Kenneth J. King, J. David J. Cohen, Committee for Public Counsel Services, for the father. Diana S. Spanos for the mother. Jocelyn Thomsen for the children. Brian R. Pariser for Department of Children and Families. GRAHAM, J. The Department of Children and Families (department) filed a petition under G. L. c. 119, § 24, alleging that five children, Eve, Yetta, Sam, Deborah, and Ted, were in need of care and protection. The petition was based on the testimony of the eldest child, Eve, that she had been sexually abused by her step-father (father). After an eight-day trial in the Juvenile Court, the judge found that the department had failed to prove that the father had sexually abused any of the children but concluded, nonetheless, that the children were in need of care and protection. Pursuant to G. L. c. 119, § 26, the judge committed Eve to the custody of the department, but permitted the other four children (children) to remain in the custody of the parents, subject to certain enumerated conditions. On appeal, the father, mother, and children argue that the evidence and the judge’s subsidiary findings do not adequately support a finding of parental unfitness; that the judge exceeded his authority by imposing conditions on the parents’ custody of the children without an explicit finding that the parents were unfit; and that certain findings made by the judge are clearly erroneous. We agree that the findings are insufficient to support a conclusion that the parents are unfit and, accordingly, vacate the judgment and order. Background. The mother is the biological parent of six children: Gail (born in 1990, who was an adult at the time the petition was filed); Eve (born in 1996); Yetta (born in 2000); Sam (born in 2004); Deborah (born in 2006); and Ted (born in 2010). The father is the biological parent of Sam, Deborah, […]
Beverly Port Marina, Inc. v. Commissioner of the Department of Environmental Protection, et al. (Lawyers Weekly No. 11-145-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑2010 Appeals Court BEVERLY PORT MARINA, INC. vs. COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[1] No. 12‑P‑2010. Essex. September 12, 2013. ‑ December 11, 2013. Present: Green, Grainger, & Fecteau, JJ. Department of Environmental Protection. Administrative Law, Agency’s interpretation of regulation, Regulations. Regulation. Real Property, Littoral property, License. License. Civil actions commenced in the Superior Court Department on July 22 and November 7, 2011. After consolidation, the case was heard by David A. Lowy, J., on motions for judgment on the pleadings. Adam J. Brodsky for the plaintiff. Louis M. Dundin, Assistant Attorney General, for Department of Environmental Protection. Richard A. Nylen, Jr., for city of Beverly. GREEN, J. Under the regulations governing issuance of licenses under G. L. c. 91 for projects on filled tidelands, a license may not issue for a project proposed in a “designated port area” (DPA) if a proposal for a “competing project” submitted during the public comment period on the license application would promote water-dependent industrial uses of the project site to a greater extent than the project proposed in the license application. See 310 Code Mass. Regs. § 9.36(5)(a) (1994). During review by the Department of Environmental Protection (DEP) of an application by the city of Beverly (city) for licenses authorizing, inter alia, construction and operation of a restaurant on a waterfront site, the plaintiff, Beverly Port Marina, Inc. (BPM), submitted a proposal to, inter alia, build and operate a boatyard on the site instead. A DEP hearing officer (presiding officer) concluded that BPM’s submission failed to demonstrate that its proposal was feasible, and recommended issuance of the licenses, with conditions, for the city’s proposed project. The DEP commissioner adopted the recommended decision, and BPM appealed the decision to the Superior Court, where a judge affirmed the decision on cross motions for judgment on the pleadings. We conclude that BPM’s competing proposal adequately satisfied the criteria established by the applicable regulations, and we vacate the judgment. Background. The site at the center of the controversy among the parties is a parcel owned by the city known as “Glover’s Wharf,” located along the Beverly waterfront. The site is at the westernmost end of a DPA established in 1978 under the Massachusetts Coastal Zone Management Plan. See 301 Code Mass. Regs. […]
Categories: News Tags: 1114513, Beverly, Commissioner, department, Environmental, Inc., Lawyers, Marina, Port, Protection, Weekly
Franklin Office Park Realty Corp. v. Commissioner of the Department of Environmental Protection (Lawyers Weekly No. 10-172-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11334 FRANKLIN OFFICE PARK REALTY CORP. vs. COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION. Worcester. May 9, 2013. ‑ September 16, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Department of Environmental Protection. Administrative Law, Agency’s interpretation of statute, Regulations, Judicial review. Practice, Civil, Review of administrative action. Environment, Air pollution. Asbestos. Statute, Construction. Regulation. Words, “Wilful.” Civil action commenced in the Superior Court Department on March 22, 2011. The case was heard by John S. McCann, J., on a motion for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Louis M. Dundin, Assistant Attorney General, for the defendant. Paul E. White for the plaintiff. DUFFLY, J. The plaintiff, Franklin Office Park Realty Corp. (Franklin), challenges the assessment of a penalty in the amount of $ 18,225, imposed by the Department of Environmental Protection (DEP) for improper handling and disposal of roof shingles that contained asbestos. Franklin argues that, pursuant to G. L. c. 21A, § 16 (administrative penalties act), it was entitled to a notice of noncompliance and the opportunity to cure any violations before a penalty was imposed. The commissioner of the DEP (commissioner) accepted the recommendation of a hearing officer that he affirm the penalty on the ground that Franklin’s failure to comply fell within one of six exceptions to the notice requirement because it was “willful and not the result of error” (wilfulness exception), see G. L. c. 21A, § 16, which he interpreted as requiring only a showing of “the intent to do an act that violates the law if done.” Franklin sought judicial review pursuant to G. L. c. 30A, § 14; a judge of the Superior Court determined some of the facts found by the hearing officer to be unsupported by substantial evidence, and that the DEP’s interpretation of G. L. c. 21A, § 16, was unreasonable and thus not entitled to deference. DEP appealed, and we transferred the case to this court on our own motion. We conclude that the language “willful and not the result of error” in G. L. c. 21A, § 16, when considered in the context of the statutory scheme and the Legislature’s intent, clearly requires a showing that the party who has not complied with the law knew or should […]
Categories: News Tags: 1017213, Commissioner, Corp., department, Environmental, Franklin, Lawyers, Office, Park, Protection, Realty, Weekly
Mostyn v. Department of Environmental Protection, et al. (Lawyers Weekly No. 11-081-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1284 Appeals Court JOHN MOSTYN, trustee,[1] vs. DEPARTMENT OF ENVIRONMENTAL PROTECTION & others.[2] No. 12‑P‑1284. Suffolk. April 4, 2013. ‑ June 24, 2013. Present: Meade, Milkey, & Hanlon, JJ. Real Property, Beach, Conservation restriction. Beach. Wetlands Protection Act. Department of Environmental Protection. Municipal Corporations, Conservation commission. Administrative Law, Standing, Regulations, Agency’s interpretation of regulation. Practice, Civil, Standing. Civil action commenced in the Superior Court Department on July 20, 2010. The case was heard by Thomas E. Connolly, J., on motions for judgment on the pleadings. David L. Klebanoff for the plaintiff. Suleyken D. Walker, Assistant Attorney General, for Department of Environmental Protection. Justin Perrotta for Terry Milligan. MILKEY, J. The Sea Pines Condominium Association (Sea Pines) owns a lengthy stretch of beach in Brewster. On a long-standing basis, members of the association have stored kayaks on a coastal dune there. Upland of the area where the kayaks were stored is property owned by the Lot 106-2 Dune Road Realty Trust, whose sole beneficiary is Joseph E. Corcoran. Corcoran objects to the kayaks being stored in front of his property and the attendant foot traffic that it engenders. At his instance, the conservation commission of Brewster (commission) determined that the storage of the kayaks on the dune was an activity subject to regulation pursuant to the Wetlands Protection Act, G. L. c. 131, § 40 (the act), and therefore that it could continue only if Sea Pines obtained an order of conditions allowing such use. After several layers of administrative review and an adjudicatory hearing, the Department of Environmental Protection (DEP) issued a final decision temporarily allowing the kayak storage to resume on certain specified conditions. On Corcoran’s appeal taken pursuant to G. L. c. 30A, § 14, a Superior Court judge affirmed DEP’s decision. We affirm the judgment. Background. According to evidence presented at the adjudicatory hearing, Sea Pines has stored kayaks or other small boats on the dune since 1981. Although Corcoran contested that specific date, it appears undisputed that the practice has been of very long duration. As DEP’s presiding officer found, and Sea Pines does not dispute, the long-standing storage of the boats, and attendant foot traffic, has had an adverse impact on the dune. Specifically, the portion of the dune at issue has […]
Categories: News Tags: 1108113, department, Environmental, Lawyers, Mostyn, Protection, Weekly
Mahajan, et al. v. Department of Environmental Protection, et al. (Lawyers Weekly No. 10-046-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11134 SANJOY MAHAJAN & others[1] vs. DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[2] Suffolk. November 5, 2012. ‑ March 15, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Department of Environmental Protection. Redevelopment of Land. Urban Renewal. Harbors. Parks and Parkways. Constitutional Law, Taking of property. Due Process of Law, Taking of property, Commonwealth’s interest in tidelands. Civil action commenced in the Superior Court Department on February 26, 2010. The case was heard by Elizabeth M. Fahey, J., on motions for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Denise A. Chicoine for Boston Redevelopment Authority. Annapurna Balakrishna, Assistant Attorney General, for Department of Environmental Protection. Gregor I. McGregor (Michael J. O’Neil & Luke H. Legere with him) for the plaintiffs. The following submitted briefs for amici curiae: Heather Maguire Hoffman for Shirley Kressel. Thomas B. Bracken for The Sierra Club. Peter Shelley & John A. Pike for Conservation Law Foundation, Inc., & others. CORDY, J. This action arises from the Department of Environmental Protection’s (department’s) issuance of a waterways license under G. L. c. 91 (chapter 91 license) to the Boston Redevelopment Authority (BRA) to redevelop a section of land owned by the BRA on the seaward end of Long Wharf (project site). The plaintiffs, ten residents of Boston’s North End neighborhood, appealed the issuance of the chapter 91 license to the department’s office of appeals and dispute resolution, and ultimately to a judge in the Superior Court, claiming the department acted unconstitutionally and beyond its statutory authority when it issued the chapter 91 license without obtaining a two-thirds vote of the Legislature as required by art. 97 of the Amendments to the Massachusetts Constitution.[3] On cross motions for judgment on the pleadings, the motion judge ordered declaratory relief and issued a writ of mandamus ordering the department to enforce art. 97. We granted the BRA’s application for direct appellate review. We are presented with two principal questions: Whether the project site, which the BRA took by eminent domain for urban renewal purposes, is subject to art. 97; and if art. 97 does apply, whether the department may issue the chapter 91 license to the BRA without triggering the requirement of a two-thirds vote of the Legislature. […]
Categories: News Tags: 1004613, department, Environmental, Lawyers, Mahajan, Protection, Weekly