Garrity v. Conservation Commission
462 Mass. 779
| Mass. | 2012Background
- Garrity filed NOI for order of conditions to build pier and related structures on oceanfront property in Hingham (March 9, 2009).
- Hingham Conservation Commission held public hearing on April 6, 2009 after a requested continuance to allow peer review work.
- Commission denied the NOI on April 27, 2009; written denial mailed April 28, 2009 (within 21 days after hearing would have elapsed if timely).
- Garrity appealed to DEP; DEP issued superseding order of conditions on July 30, 2009 due to untimely act by the commission.
- Commission issued a June 22, 2009 enforcement order for several alleged violations lacking an order of conditions.
- Litigation proceeded as certiorari; Superior Court found no valid waiver of the 21-day deadline; case on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 21-day decision deadline can be waived by the applicant | Garrity argues waiver is not permitted; any waiver must be voluntary. | Commission argues waiver possible; Garrity partially consented to extension. | Waiver is possible if voluntary, reasonable, definite, and publicized. |
| Whether Garrity’s waiver was valid given forms and notice | Waiver form/checklist did not prove a clear, voluntary waiver. | Waiver evidenced by forms; checklist implied consent. | No valid waiver; forms do not establish voluntary waiver. |
| Effect of lack of valid waiver on the 21-day deadline and superseding order | Without timely decision, superseding order controls. | Enforcement and bylaw remedies may remain; but need timely action. | Department superseding order governs; 21-day deadline not satisfied by commission remains inapplicable. |
| Standard of review for enforcement order | Enforcement order reviewed for substantial evidence of violations. | Enforcement order reviewed for arbitrary and capricious abuse of discretion. | Enforcement order reviewed under arbitrary-and-capricious standard; upheld in part. |
| Jurisdiction and scope of enforcement for specific violations (stairway, deck, granite steps) | Commission lacked jurisdiction or properly interpreted exemptions. | Commission acted within regulatory framework; noncompliant structures require order. | Stairway and deck findings upheld; granite steps require further factual determination; some issues moot on remand. |
Key Cases Cited
- Oyster Creek Preservation, Inc. v. Conservation Comm’n of Harwich, 449 Mass. 859 (Mass. 2007) (timeliness, no waiver issue in Oyster Creek; superseding order governs when timely action not taken)
- Canal Elec. Co. v. Westinghouse Elec. Corp., 406 Mass. 369 (Mass. 1990) (statutory waiver analysis when waiver does not frustrate statute's purpose)
- Roseman v. Day, 345 Mass. 93 (Mass. 1962) (waiver must be voluntary and intentional)
- Attorney Gen. v. Industrial Nat’l Bank, 380 Mass. 533 (Mass. 1980) (waiver principles in civil context)
- Mezzanatto v. United States, 513 U.S. 196 (U.S. 1995) (waiver concept in federal statute interpretation)