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Home / Time Limits for Seeking Judicial Review Mass Health

Time Limits for Seeking Judicial Review Mass Health

Home Board OF HEALTH OF STURBRIDGE & others [Note 1] vs. BOARD OF Wellness OF SOUTHBRIDGE & some other. [Note 2]

461 Mass. 548

Oct 4, 2011 - February 22, 2012

Courtroom Below: Superior Court Section, Worcester

Present: Republic of ireland, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

Records And Briefs:

  • (1) SJC-10852 01 Appellants Sturbridge Brief
  • (2) SJC-10852 02 Appellants Sturbridge Respond Brief
  • (three) SJC-10852 03 Appellees Sturbridge Recycling Brief
  • (iv) SJC-10852 04 Amicus Democracy Brief
  • (5) SJC-10852 05 Amicus National Solid Brief
  • (6) SJC-10852 06 Amicus Toxics Activity Center Brief
  • (7) SJC-10852 07 Amicus Conservation Law Brief

Oral Arguments

Practice, Civil, Appeal, Find of appeal, Enlargement of fourth dimension, Parties, Continuing. Administrative Law, Intervention, Substantial show, Judicial review. Municipal Corporations, Board of health. Board of Health.

This courtroom concluded that Mass. R. A. P. 4 (a) authorized a Superior Court judge's allowance of the plaintiffs' move to overstate the time to file a notice of appeal, where, although the plaintiffs did not move to enlarge until more than ninety days after entry of the Superior Court judgment, they required only a 4-twenty-four hours extension to return timely their notice of appeal, which they had filed with the clerk presently later on the entry of judgment. [552-554]

This court ended that citizen groups (plaintiffs) lacked standing to entreatment from a conclusion of the defendant town board of health (board) approving a minor modification to the site consignment for an existing landfill and related processing facility in that town under G. L. c. 111, § 150A, where, although the plaintiffs qualified every bit interveners before the lath, the record of the proceeding (a nonadjudicatory proceeding involving claims of harm to the environment, in which the plaintiffs acquired party status automatically and not through an individualized determination by the board) did non support a conclusion that any of the plaintiffs would suffer prejudice to their individual rights [555-562]; at any rate, their substantive challenges to the conclusion lacked merit [562-564].

Ceremonious Action commenced in the Superior Court Department on July 8, 2008.

A motion to dismiss was heard by Leila R. Kern, J., and the instance was heard by Janet Kenton-Walker, J., on a motion for judgment on the pleadings.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Page 549

Kirstie Fifty. Pecci for xx-viii ten-citizen groups.

Robert C. Kirsch for Southbridge Recycling and Disposal Park, Inc.

Sarah Turano-Flores, for board of health of Southbridge, was present but did not contend.

The following submitted briefs for amici curiae:

Christopher D. Ahlers, of Vermont, for Toxics Action Center.

Thomas A. Mackie for National Solid Wastes Management Association.

Martha Coakley, Attorney Full general, & Sookyoung Shin, Banana Attorney Full general, for the Commonwealth.

Shanna Cleveland, Peter Shelley, & Margaret Van Deusen for Conservation Police Foundation & another.

BOTSFORD, J. In July of 2008, the plaintiffs filed an entreatment in the Superior Court from a decision of the defendant board of health of Southbridge (lath) blessing a "small-scale modification" to the site assignment for an existing landfill and related processing facility in that town under G. Fifty. c. 111, § 150A (§ 150A). [Notation iii] The plaintiffs brought their entreatment pursuant to Grand. L. c. 30A, § 14. In response to a movement to dismiss, two judges in the Superior Court ruled that as parties before the board, the plaintiffs had continuing to bring their complaint for judicial review to the Superior Court. However, the second judge (motion gauge) ended that the plaintiffs' challenges to the board'sdecision failed on the claim. Final judgment entered on December sixteen, 2009, affirming the board's determination.

We transferred the plaintiffs' entreatment from the judgment to this court on our ain move to consider in detail the outcome of the plaintiffs' standing to seek judicial review in the Superior Court of the lath'due south decision. Nevertheless, there is a threshold issue whether the entreatment must be dismissed because the plaintiffs' notice of appeal was not timely filed in the Superior Court. For the reasons we shall discuss, we conclude that the Superior

Folio 550

Court judge had potency to allow the plaintiffs' movement to extend the time for filing their notice of appeal. With respect to the other bug raised, we conclude that on the record before the courtroom, (ane) the plaintiffs lacked continuing to seek judicial review of the board'southward decision in the Superior Court; and (ii) the plaintiffs' substantive challenges to the determination lack merit. [Note iv]

1. Groundwork. The basic groundwork facts are not in dispute. [Notation 5] The defendant Southbridge Recycling and Disposal Park, Inc. (SRDP), operates a landfill and an associated processing facility at 165 Barefoot Road in Southbridge. On February 27, 2008, SRDP filed an application for a minor modification of its existing site assignment with the board pursuant to § 150A and 310 Code Mass. Regs. §§ sixteen.00 (2001), the implementing regulations of the Department of Environmental Protection (department). At that time, SRDP was operating both the landfill and the processing facility under a site assignment decision of the board issued in Apr, 1999. [Note half dozen] The minor modification SRDP requested had two components: (1) to reallocate a specified number of tons per year of waste matter from the processing facility to the landfill, thereby increasing the volume of waste accepted by the landfill and decreasing by a corresponding amount the volume of waste matter accustomed past the processing facility; and (two) to let the landfill to accept waste matter from the processing facility regardless of its geographic origin.

Betwixt March 27 and May 21, 2008, the board held a public hearing on SRDP'due south modification asking. On March 27, the outset of what turned out to be eleven hearing dates, the hearing officeholder admitted the plaintiff ten-denizen groups (citizen groups) every bit "Parties" to the hearing with the right to participate fully in it. See 310 Code Mass. Regs. §§ sixteen.xx(9), (10)(due east). Through their counsel, the denizen groups did so by presenting and cross-examining witnesses, presenting and responding to motions,

Folio 551

making opening and closing statements to the board's hearing officer, and submitting a proposed decision. At the hearing, approximately sixty witnesses testified, and lxx-two exhibits were admitted too as seven chalks. The board issued its decision on June 9, 2008. Information technology granted SRDP'due south application for a small-scale modification of the site assignment, but with fifty-viii specific conditions imposed. The plaintiffs timely filed a complaint for judicial review in the Superior Court on July 8, 2008, naming the board and SRDP as defendants. [Note 7]

2. Timeliness of the plaintiffs' find of entreatment. a. Facts. The Superior Court judgment entered on Dec 16, 2009. Under Mass. R. A. P. iv (a), as amended, 430 Mass. 1603 (1999), the plaintiffs were required to file their find of entreatment in the Superior Court within xxx days of that date. [Note 8] The plaintiffs apparently mailed their observe of appeal to the Superior Court on January 15, 2010, simply the court did not receive or docket the observe until Jan 19 (January 18 was a holiday), more than 30 days afterwards the date of the judgment.

On February three, 2010, SRDP and the board jointly moved to strike the notice of entreatment as untimely filed. At the hearing on the defendants' motion, held on March 23, the motility judge permitted the plaintiffs' counsel to make an oral motion to enlarge the time to file the notice of entreatment under Mass. R. A. P. 4 (c), as appearing in 378 Mass. 928 (1979). [Notation 9] On April 1, the movement gauge allowed the motility to enlarge and denied the defendants' motion to strike. The plaintiffs' entreatment was entered in the Appeals Courtroom on May 14. On May 17, the defendants

Folio 552

moved to dismiss the appeal based on what they claimed was the late filing of the notice of appeal. On June 4, 2010, a single justice of the Appeals Courtroom entered an order denying the motion and stating that the untimely filing "may be raised as an issue in appellee's brief."

b. Discussion. SRDP and the lath press their claim that the plaintiffs' entreatment must be dismissed because the motility judge lacked authority to permit the plaintiffs' motion to overstate the time for filing the discover of entreatment. We turn down that argument.

The judgment entered on Dec 16, 2009. To be timely nether Mass. R. A. P. 4 (a), the notice of appeal was required to be "filed with the clerk of the lower court" inside thirty days, i.due east., on or before January 15, 2010. The plaintiffs did not file their discover inside that menses. While it appears the find was mailed on Fri, January 15, 2010, information technology was not received by the court, and therefore information technology was not "filed with the clerk," until Jan 19, 2010. [Notation 10] See Garrett v. Director of Div. of Employment Sec., 394 Mass. 417 , 420 (1985) (filing and mailing are distinct concepts). Information technology was therefore a few days late. Withal, the motion approximate was authorized by Mass. R. A. P. 4 (c), "[u]pon a showing of excusable neglect . . . [to] extend the time for filing the notice of appeal . . . for a catamenia not to exceed thirty days from the expiration" of the initial thirty-day appeal period. Because the plaintiffs filed their notice of appeal on January 19, they simply required a four-day extension -- well inside the judge's authority -- to return timely their detect of appeal filed on that date.

The fact that the plaintiffs did not motion to overstate the time for filing their find of appeal until March 23, 2010, [Note 11] did not deprive the motility approximate of her power to grant an enlargement of time to January 19. Nothing in our jurisprudence requires that a movement to enlarge fourth dimension be made or filed within the fourth dimension

Page 553

permitted for an extension under rule 4. [Note 12] What is disquisitional is that the bodily notice of appeal is filed within that time. In other words, the limitation in rule four is a limitation on the length of the extension of time that the judge is empowered to grant for filing the detect of entreatment itself; the limitation does not restrict the period in which the judge may act or prescribe when a movement to enlarge fourth dimension may be filed.

While this case concerns the authority of a trial court gauge to act, it is similar to the situation where a unmarried justice of an appellate court is asked to extend the time for filing a observe of appeal. Run across Mass. R. A. P. 14 (b). In Commonwealth v. White, 429 Mass. 258 , 263-264 (1999), this courtroom considered the authority of an appellate single justice, acting pursuant to rule 14 (b), to enlarge the period for filing a observe of appeal. The rule prohibits a single justice from enlarging the period "beyond one twelvemonth from the date of judgment or ordered entreatment from." We concluded that, "[w]hile under rule 14 (b) the one-year anniversary of the order to be appealed terminates the defendant's right to file a notice of entreatment, information technology does not end the jurisdiction of an appellate court to consider a move to enlarge the time, nunc pro tunc." Id. at 263. We call back there is no reasonable basis for giving a different construction to rule 4 (c). Just as the appointment of filing the notice of appeal is the jurisdictional reference for an appellate single justice'south authority under rule 14 (b) to enlarge the time, nunc pro tunc, it provides the same part for trial judges under rule 4 (c). Contrast Democracy v. Boutwell, 21 Mass. App. Ct. 201 , 202, 205 (1985) (where notice of entreatment was never filed, trial guess lacked authority to permit filing more threescore days after guilty finding or imposition of sentence). [Note thirteen], [Note 14]

Having concluded that the appeal is properly earlier us, we

Folio 554

plow now to the question whether the plaintiffs qualify as "aggrieved" parties with standing to bring this appeal.

3. The plaintiffs' standing to seek judicial review. a. Facts. On or presently before the get-go hearing date on SRDP'south modification application, the plaintiffs filled out and submitted to the board registration forms entitled, "Registration of ten-Citizen Group." Each form contains an identical printed statement purporting to explain how the individuals signing the form as members of the citizen group would be affected by the proposed site assignment modification. [Note fifteen] The hearing officeholder, whom we infer was interim pursuant to the department's site assignment regulations, admitted the citizen groups equally total interveners in the matter, entitled to all rights of a political party to call and cantankerous-examine witnesses, introduce exhibits, and present arguments. See 310 Code Mass. Regs. § 16.20(ix)(a), (c). [Note 16]

Page 555

Afterward the plaintiffs filed their complaint for judicial review in the Superior Court, SRDP and the board moved to dismiss, claiming that the plaintiffs were non persons "aggrieved" by the board'due south concluding decision, and therefore lacked standing to bring an activity under G. 50. c. 30A, § 14, and § 150A. A Superior Court judge other than the motion judge denied the defendants' motion, reasoning that because the plaintiffs had been afforded full party status in the board'due south proceedings, they were entitled automatically to bring an action for judicial review of the board's decision as "aggrieved" persons. Later, in ruling on the plaintiffs' motion for judgment on the pleadings, the motion estimate rejected the defendants' argument that the plaintiffs lacked continuing for the same reason.

b. Word. To set a framework for consideration of the standing issue, we begin with a review of the pertinent statutory and regulatory provisions.

The siting and permitting of landfills and related facilities is governed by § 150A and the department'southward site consignment regulations, 310 Code Mass. Regs. §§ 16.00. Under § 150A, a person seeking to operate a site for a new landfill (or processing)

Page 556

facility or to expand an existing facility must submit a site assignment awarding to the appropriate local board of health, which is required "to hold a public hearing satisfying the requirements of [G. L. c. 30A]." Id. An owner or operator of an existing facility requesting a "minor modification" of the site assignment is not required to submit a full site assignment application, just the lath is required to hold a public hearing on the asking. 310 Code Mass. Regs. § 16.22(iii). The department'south regulations include a section prescribing "public hearing rules" to govern the public hearing process. Encounter id. at § 16.20. One of these, § 16.twenty(9)(a), sets out requirements for political party intervention in the proceeding before the lath. This regulation provides that persons may intervene equally parties if they make a written request and are considered by the hearing officer to be "specifically and substantively affected." It goes on to state that whatever citizen group of ten or more than persons (x-citizen group) "shall be considered to be specifically and substantially affected" and entitled to register equally a "party" to a public hearing where impairment to the surroundings "is or might be at issue." Meet note 16, supra. [Notation 17], [Annotation 18]

The final relevant statutory provisions relate to appeals. Section 150A states that "[a]ny person aggrieved" past the board'south siting decision may entreatment pursuant to G. L. c. 30A, § 14, and "[f]or the limited purposes of such an appeal," the board'south final determination "shall be deemed to be a concluding determination in an adjudicatory proceeding." G. L. c. 111, § 150A. General Laws c. 30A, § fourteen, in turn, provides that judicial review is available to "whatsoever person . . . aggrieved past a final conclusion of any agency in an adjudicatory proceeding." 1000. L. c. 30A, § 14. [Note 19]

Folio 557

As the statutory provisions but quoted indicate, agreement the meaning of the term "person . . . aggrieved" in c. 30A, § 14, is critical. "In guild to maintain an action for review [under c. 30A, § 14], a party must be aggrieved in a 'legal sense' and prove that 'substantial rights' take been 'prejudiced.' " Group Ins. Comm'n v. Labor Relations Comm'n, 381 Mass. 199 , 202-203 (1980), quoting Duato v. Commissioner of Pub. Welfare, 359 Mass. 635 , 637-638 (1971). [Note xx] Cf. Ginther v. Commissioner of Ins., 427 Mass. 319 , 323-324 (1998) (participants in public hearing held on proposed insurance company merger did not have standing to seek judicial review because, inter alia, there was no showing they suffered "direct and sure injury" from commissioner's decision and therefore were persons aggrieved).

It is true that some of our decisions contain language suggesting an agency's designation of a person as an intervener with the right to participate fully as a party brings with it the right to seek judicial review of the bureau decision as an "aggrieved person." See, due east.chiliad., Save the Bay, Inc. 5. Section of Pub. Utils., 366 Mass. 667 , 672-673, 676 (1975) (Save the Bay). [Note 21] Notwithstanding, in Salve the Bay, the court was discussing intervention in an administrative agency'southward "adjudicatory proceeding" as defined in Thou. L. c. 30A, § ane, that is, an agency proceeding in which the rights of "specifically named persons" are adjudicated. Under G. L. c. 30A, an bureau conducting an adjudicatory proceeding

Folio 558

may "allow any person showing that he may be substantially and specifically affected by the proceeding to intervene as a party in the whole or any portion of the proceeding." K. L. c. 30A, § 10 (iv). Equally that linguistic communication reflects, such a decision of intervening party condition is based on private facts establishing the "substantial and specific" outcome that the proceeding may take on the individual or entity seeking to intervene. If an agency decides that a particular person is "essentially and specifically affected" by a proceeding to a caste warranting intervention equally a party, it is likely the person besides will be able to establish that he or she qualifies as a person "aggrieved" for purposes of obtaining judicial review of the agency's decision. [Note 22]

The public hearing earlier the board, however, was not an adjudicatory proceeding, every bit 310 Code Mass. Regs. § 16.20(1) states explicitly, [Note 23] and as the plaintiffs correctly acknowledge. Under the department'due south site assignment regulations, 310 Lawmaking Mass. Regs. § 16.20(9), citizen groups such as the plaintiffs acquire party status automatically, at least where, as here, there are claims of harm to the environs. Meet 310 Lawmaking Mass. Regs. § 16.twenty(nine)(a); notation 18, supra. In other words -- as is

Folio 559

borne out by the record in this case -- the board makes no individualized decision of how the specific group or any of its members may be affected by the proceeding, just is directed by the regulation to treat the group as a total party simply because it is a citizen grouping.

The grant of full party status to citizen groups under 310 Code Mass. Regs. § xvi.20(ix) presumably is designed to enable the board to receive relevant data near environmental impacts of proposed siting decisions from a broad assortment of persons. But the regulation and its purpose exercise not themselves entitle the plaintiffs to seek judicial review of the board'southward final decision as persons "aggrieved." Encounter Ginther v. Commissioner of Ins., 427 Mass. at 324 ("Mere participation in the administrative procedure does non confer standing to raise a claim in the Superior Court"). [Note 24] Rather, it is necessary to decide whether any of the plaintiff citizen groups, or, more than particularly, any individual members of the denizen groups, have shown or even alleged prejudice to their own substantial rights. Encounter Duato v. Commissioner of Pub. Welfare, 359 Mass. at 637. Put another way, have any of the citizen group members shown or declared "substantial injury" to themselves that would event directly from the board'south blessing of the proposed site consignment modification? See Ginther, supra at 322, quoting Harvard Police force Sch. Coalition for Civ. Rights 5. President & Fellows of Harvard Higher, 413 Mass. 66 , 69 (1992). Come across also Goldberg 5. Board of Wellness of Granby, 444 Mass. 627 , 631-632 n.8 (2005). [Annotation 25]

The administrative tape does not back up a conclusion that

Folio 560

any of the plaintiffs will endure prejudice to their individual rights. The just record bear witness on the issue is the ready of registration forms. These reflect that the plaintiffs alive in the "vicinity" of the landfill, although not necessarily in Southbridge itself. [Notation 26] Simply regardless of whether they alive in Southbridge or a neighboring town, there is no indication of how close whatsoever of the members of the denizen groups may live to the landfill, and therefore, no indication every bit to what direct or specific impact the proposed modification of the landfill may take on whatsoever of them. The identical statement of how the plaintiffs are "substantially [and] specifically afflicted" on each of the registration forms (meet note 15, supra) is essentially a general and collective exclamation of injury. Considering neither the registration form nor whatever other part of the tape contains data describing the specific relationship of any plaintiff to the landfill -- whether past physical proximity or otherwise -- it is incommunicable to conclude that any of the plaintiffs may claim injury that is special to them and unlike from a generalized concern of the community. Contrast Relieve the Bay, 366 Mass. at 674-676 (although unincorporated association participating in agency proceeding could not be party to judicial appeal from agency decision, 1 of its members who owned property abutting facility at result had standing as aggrieved political party). Cf. Standerwick five. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 27-28, 33 (2006) (discussing standing as "person aggrieved" under zoning and comprehensive permit statutes, G. L. c. 40A and c. 40B). [Note 27] Cf. too Harvard Police force Sch. Coalition for Civ. Rights v. President & Fellows of Harvard College, 413 Mass. at 68-69

Page 561

(discussing requirements for establishing standing as "persons aggrieved" under G. L. c. 151B, § 9). [Note 28]

To summarize: although, pursuant to 310 Code Mass. Regs. § xvi.20(ix), the plaintiffs qualified as interveners with full political party status before the board, the record does not back up their claim that they take standing to appeal to the Superior Court as persons "aggrieved." As interveners, the plaintiffs would have the right to intervene in an appeal brought by an aggrieved person whether or not they were aggrieved themselves, G. L. c. 30A, § 14 (2), see annotation 21, supra, but on the nowadays record they were not entitled directly to initiate an action for judicial review. The defendants' motion to dismiss the plaintiffs' complaint should have been allowed for lack of standing. Nevertheless, nosotros plow briefly to the claim of the plaintiffs' challenge to the lath'southward conclusion, because the parties accept fully briefed and argued

Page 562

them, and it is advisable to bring a last resolution to this case. Encounter Wellesley College five. Attorney Gen., 313 Mass. 722 , 731 (1943).

4. Merits. At issue is the lath's decision to grant SRDP a small-scale modification to its existing site assignment. [Note 29] The burden is on the plaintiffs, as the challenging parties, to evidence that the conclusion is not supported by substantial evidence, based on fault of law, arbitrary or capricious, or an abuse of discretion. G. L. c. 30A, § 14 (7). "In our review of authoritative bureau decisions, we generally defer to the feel, technical competence, specialized knowledge, and discretionary authority of the agency." Heublein, Inc. five. Capital Distrib. Co., 434 Mass. 698 , 705 (2001), citing Seagram Distillers Co. v. Alcoholic Beverages Command Comm'north, 401 Mass. 713 , 721 (1988).

The plaintiffs assert that the board's decision should be reversed because it is based on two errors of law. In particular, they claim that the board (1) erroneously expanded the acreage that previously had been site assigned, based on SRDP's misrepresentation of that area in its application for a minor modification; and (2) incorrectly approved a modification for the processing facility even though that facility is non (a) located on state that was properly site assigned, or (b) a permitted accessory use of an existing site assigned area. These claims are without merit.

Contrary to the plaintiffs' repeated assertions, the tape demonstrates that both the landfill and processing facilities are

Page 563

located on state that was site assigned either in 1979 or in 1999. The plaintiffs argue that only 20.6 acres of land was site assigned in the 1979 site assignment. Even so, that site consignment was not for a specifically delineated acreage, only for "a tract of land presently owned by George Corriveau in the Barefoot Road section of Southbridge." In 1979, before the town of Southbridge changed its boundaries (come across St. 1993, c. 210), the tract in question was approximately sixty-4 acres. The site assignment designated twenty.6 acres of it for waste material disposal, but the over-all site assignment was for the bigger tract, namely, the full threescore-4 acres of state previously owned by Corriveau and located in Southbridge. [Note 30] With respect to 1999, the plaintiffs similarly confuse the acreage designated for waste disposal with the entire portion of land being site assigned. [Note 31] SRDP did non misrepresent the acreage of site assigned land in the 2008 request for minor modification at issue here, and the lath did non make its decision based on an incorrect determination of that acreage.

Turning to the plaintiffs' argument focused on the processing facility, to the extent information technology depends on the merits that the facility is not on site assigned land, information technology must fail because, as merely discussed, both the landfill and processing facilities are located on land that was properly site assigned in 1979 and 1999. The plaintiffs' additional claim that "processing" is not a properly approved use of the site also must be rejected: the processing activeness undertaken at this facility was and is a recognized exception to the general prohibition, spelled out in 310 Code Mass. Regs. § 16.21(3), confronting conducting a different solid waste product activity on an area site assigned for a specific solid waste purpose. See

Folio 564

310 Code Mass. Regs. § 16.21(3)(a) (1994) ( "Recycling or composting may be approved at any assigned, permitted active disposal or handling facility without requiring a new or modified site consignment when such activeness is integrated into the assigned solid waste direction operation and the tonnage limits . . ."). [Note 32] Substantial bear witness in the record, including the section'due south site suitability report prepared in connection with the earlier, 1999 application for a major modification to the 1979 site consignment, shows that the processing facility was designed to increase recycling and would be integrated into the existing landfill facility. Furthermore, in connection with the review it undertook in 2008 (see notation 30, supra), the department ended that the lath'south approval of the name change for the landfill facility (run into note 32, supra) was proper and the processing facility was not operating without a valid site assignment.

The plaintiffs' final statement is that the modification sought by SRDP in 2008 in substance was a "major" modification, and the lath improperly treated it equally a "minor" modification, thereby permitting SRDP to avoid the more rigorous review that § 150A and the department's regulations called for. The merits cannot succeed considering it necessarily depends on acceptance of the plaintiffs' position that the landfill and processing facilities currently operate on state that has non properly been site assigned -- a position that we take rejected.

5. Conclusion. For the reasons discussed in this opinion, the judgment of the Superior Court is vacated, and the case is remanded to that court for entry of a judgment of dismissal for lack of standing.

So ordered.

FOOTNOTES

[Note 1] 20-viii ten-citizen groups formerly represented by Kirstie 50. Pecci, Ann Fenwick-Beinema, Larry Beinema, Wil Gallien, James Sottile, Lynne Simonds, and John Pulawski.

[Notation 2] Southbridge Recycling and Disposal Park, Inc.

[Note 3] The original plaintiffs in the Superior Courtroom included the lath of wellness of Sturbridge, the twenty-eight ten-citizen groups, and the individuals named in notation 1, supra. 2 weeks after the complaint was filed, the board of health of Sturbridge voluntarily dismissed its claims with prejudice and is not a party to this appeal. The plaintiffs betoken in their brief that Ann Fenwick-Beinema and Larry Beinema too are non parties to the appeal.

[Annotation 4] We acknowledge the amicus briefs of the Attorney General, National Solid Wastes Direction, Conservation Police Foundation, Toxics Action Eye, and Charles River Watershed Association.

[Annotation 5] The facts stated hither are taken primarily from the decision of the 2nd Superior Court judge (motion estimate) on the plaintiffs' motion for judgment on the pleadings.

[Note 6] The decision had been appealed to the Superior Court, and the affair was settled pursuant to an understanding for judgment in June, 2000.

[Annotation 7] Nosotros set out additional background facts in connectedness with the specific issues discussed infra.

[Notation 8] Rule 4 (a) of the Massachusetts Rules of Appellate Procedure, equally amended, 430 Mass. 1603 (1999), provides in relevant part: "In a civil case, unless otherwise provided by statute, the detect of entreatment . . . shall be filed with the clerk of the lower court inside thirty days of the date of the entry of the judgment appealed from . . . ."

[Note 9] Rule 4 (c) of the Massachusetts Rules of Appellate Procedure, equally appearing in 378 Mass. 928 (1979), provides: "Upon a showing of excusable neglect, the lower court may extend the time for filing the notice of appeal by any party for a catamenia non to exceed thirty days from the expiration of the time otherwise prescribed by this rule. Such an extension may be granted before or after the time otherwise prescribed past this rule has expired; but if a request for an extension is fabricated after such time has expired, it shall exist made by motion with such notice as the lower court shall deem appropriate."

[Notation 10] January eighteen, 2010, was a legal holiday.

[Note eleven] The plaintiffs argue in their reply brief that the belatedly filing of the notice of appeal on January 19, 2010, acted as a motion to extend the time to file the notice of appeal nether dominion 4 (c). That is incorrect. A detect of appeal, without more, is not a motion. Moreover, it is clear that the motion gauge did not treat the plaintiffs' January 19 find of appeal every bit a move to overstate the time for filing, because she asked the plaintiffs to make an oral motility to enlarge at the March 23 hearing.

[Annotation 12] It behooves an appellant to move nether dominion 4 (c) to extend the fourth dimension for filing every bit promptly as possible later on a timeliness issue comes to light. It would be for the motion estimate hearing the motion to consider in the first instance whether deliberate delay in filing such a motion should be considered. We express no view on that point at this time.

[Annotation 13] Dicta to the reverse in a rescript opinion of the Appeals Court, Shaev 5. Alvord, 66 Mass. App. Ct. 910 , 910 (2006), is an incorrect statement of the police force.

[Note fourteen] Dominion 4 (c) requires that a motion to file a late detect of appeal exist predicated on a showing of excusable neglect. After a hearing, the motility judge institute that there was excusable neglect in this case. The defendants have not challenged that finding on appeal.

[Note fifteen] The printed statement on each registration form reads: "Statement OF HOW REGISTRANTS ARE SUBSTANTIALLY & SPECIFICALLY AFFECTED:

"Nosotros, the undersigned residents of Southbridge, Sturbridge, and Charlton, with good cause hereby annals to exist a Party and petition to be a X Denizen Grouping Intervener in the above-described proceeding and to be represented past the Authorized Representative named above. [The plaintiffs' counsel, Kirstie L. Pecci, is the listed Authorized Representative on each form.] We alive in the vicinity of the Southbridge Landfill and are substantially and specifically afflicted by the expansion of the landfill and its conversion from construction and demolition (C&D) to municipal solid waste material (MSW) because information technology will: (a) cause an increase of noxious and foul smelling gases affecting residential areas for miles[;] (b) increment truck traffic on highways and side streets that emit strong odors, contaminated water and windblown litter causing a danger to public health & safety; (c) cause inevitable drinking water contamination [;] (d) devalue surface area homes. Nosotros make this statement under the pains and penalty of perjury."

[Note 16] The cited regulations, 310 Code Mass. Regs. § 16.20(ix)(a) and (c), read equally follows:

"(9) Intervention and Participation

"(a) Intervention. Whatever Person who with skilful crusade wishes to intervene in a public hearing shall file a written request (petition) for leave to intervene. Persons whom the Hearing Officeholder determines are specifically and substantively affected by the hearing shall exist allowed to intervene. For the purpose of the Public Hearing the following persons shall exist considered to be specifically and substantively affected past the hearing and shall exist eligible to register as a Party to the hearing:

"1. Abutters. Any abutter or group of abutters to the proposed facility shall exist a Party to the hearing by timely submission of a Party Registration Argument in accordance with 310 [Code Mass. Regs. §] 16.20(9)(b).

"2. Ten Citizens Groups. Whatever group of 10 or more persons may register collectively as a Party to the public hearing in which damage to the environs, as defined in [G. L.] c. 214, § 7A, or public health and safety are or might be at effect; provided, however, that such intervention shall be limited to the problems of impacts to public health, safe and damage to the environment and the elimination or reduction thereof in order that whatsoever determination in the public hearing shall include the disposition of such consequence.

". . .

"(c) Rights of Intervenors. Whatsoever person permitted to arbitrate shall accept all rights of, and be subject area to, all limitations imposed upon a Party, yet, the Hearing Officer may exclude repetitive or irrelevant material. Every Petition to intervene shall be treated as a petition in the alternative to participate."

[Note 17] The participation rights of a "party" in a site assignment proceeding are not defined in 310 Lawmaking Mass. Regs. § 16.20(nine), but are gear up out in § 16.twenty(10)(eastward) ("All Parties shall have the right to present evidence, cantankerous-examine, brand objections and make oral arguments").

[Note xviii] As discussed infra, we read the provisions of 310 Mass. Code Regs. § 16.twenty(9)(a) only described to hateful that ten-citizen groups such as the plaintiffs are entitled to total party condition in the lath's proceeding solely past virtue of their citizen group status, with no requirement for an individualized determination of how the landfill facility that is the bailiwick of the public hearing volition affect whatsoever of the citizen groups' members.

[Note 19] Section fourteen goes on to provide that "[a]ll parties to the proceeding before the agency shall have the correct to intervene in the proceeding for review," (emphasis added), come across One thousand. 50. c. 30A, § 14 (2), but the right to bring the proceeding for review is restricted to a person "aggrieved" by the administrative agency'due south final decision. G. L. c. 111, § 150A.

[Note twenty] The court further stated: "Not every person whose interests might conceivably exist adversely affected is entitled to [judicial] review. . . . '[I]n many, if not near, circumstances, the injury complained of may be too remote to make the party seeking review a "person aggrieved." ' " (Citation omitted.) Group Ins. Comm'northward five. Labor Relations Comm'due north, 381 Mass. 199 , 204 (1980), quoting Boston Edison Co. five. Boston Redevelopment Auth., 374 Mass. 37 , 46 (1977).

[Note 21] The Superior Court judge who denied the defendants' motion to dismiss the complaint relied on Salvage the Bay, Inc. v. Department of Pub. Utils., 366 Mass. 667 (1975), in concluding that persons such as the plaintiffs here, who take been granted full party condition earlier the administrative agency, take standing to seek judicial review as "aggrieved person[s]." That guess, as well as the motion judge, too cited Andover v. Energy Facilities Siting Bd., 435 Mass. 377 , 378 n.3 (2001), for the aforementioned proposition. In the Andover instance, the court noted that in that location was no claiming to the plaintiffs' standing, see id., simply the court's stance might exist read every bit supporting the view that full political party status before the administrative agency allows an intervener to entreatment from the bureau's decision equally an aggrieved party or person.

[Note 22] At the same time, nosotros have made the point that full intervention equally a party in an adjudicatory proceeding does not translate automatically into being "aggrieved" past the agency'south decision. See, due east.g., Boston Gas Co. v. Department of Pub. Utils., 368 Mass. 780 , 805 (1975). Meet besides American Hoechest Corp. v. Department of Pub. Utils., 379 Mass. 408 , 410-411 (1980) (while appellants were clearly "parties," non every bit articulate they were "aggrieved" by challenged decision of agency; even so, because they would be required to bear part of economic burden of agency'south decision, court concluded they had continuing to bring appeal).

[Note 23] A preamble to 310 Code Mass. Regs. § xvi.twenty(ane) states:

" 'Public Hearings' pursuant to [G. L.] c. 30A are non 'Adjudicatory Proceedings' inside the meaning of [G. L.] c. 30A, § 1. See [Thou. Fifty.] c. 30A, § 2. Pursuant to [G. L.] c. 111, § 150A [§ 150A], however, 'for the limited purpose of appeal from such public hearings, a local board of wellness shall be deemed to be a state agency nether the provisions of said [c. 30A] and its proceedings and determination shall exist deemed to be a final decision in an adjudicatory proceeding.' The public hearing process is designed to let the flexibility and informality advisable to the board of health proceeding, while providing the board of wellness with procedural direction and the dominance to create a record and render a decision within a limited fourth dimension catamenia which is amenable to the procedures and the standards of judicial review applicable nether [G. L.] c. 30A, § 14."

[Note 24] In other contexts, we have recognized that participation in an authoritative controlling procedure that is not an adjudicatory proceeding, while enabling the administrative agency to receive information from a wide range of sources, does not necessarily give the participant the correct to seek judicial review. Run into, e.yard., Enos v. Secretary of Envt'l Diplomacy, 432 Mass. 132 , 137-139 (2000) (participation in environmental review before Secretary of Environmental Diplomacy encourages full disclosure of environmental impacts of proposed projection, but does not permit participants to challenge Secretary's decision). See as well School Comm. of Hudson five. Board of Educ., 448 Mass. 565 , 577-578 (2007) (lease schoolhouse application process requires public hearing at which plaintiffs participated, but that fact did non entitle them to entreatment from lath's decision to grant charter; process allows public to be informed and to annotate on application, but final decision is legislative in nature and rests with board).

[Note 25] Goldberg five. Board of Health of Granby, 444 Mass. 627 (2005), was a example, like this ane, involving a challenge to a board of health'south landfill siting conclusion. The plaintiffs in the Goldberg case were not citizens groups simply individuals who had participated in the authoritative proceedings before the board of health. Id. at 627 n.one. The court discussed the need of the plaintiffs to establish that they were "aggrieved" by the board of health'southward decision inside the meaning of G. 50. c. 30A, § 14, but then assumed without deciding that the individual plaintiffs had done so considering they were "close neighbors of the landfill, who complained of the negative impacts of an enlarged landfill on their health and holding." Id. at 631-632 n.8.

[Note 26] In add-on to Southbridge, some citizen group members live in Sturbridge, some in Charlton, and at to the lowest degree i in Brimfield.

[Annotation 27] The defendants land in their brief that this court "has expressly ruled that the aggrievement standard in site assignment cases reviewed under [G. L. c.] 30A follows the standard established in zoning appeals under [Yard. L. c.] 40A, § 17." That is not the instance. Citation to two zoning cases for illustrative purposes in a footnote in Goldberg five. Board of Wellness of Granby, 444 Mass. at 631-632 due north.viii, does not reflect a holding that the determination whether ane qualifies equally a "person aggrieved" for purposes of bringing an appeal nether c. 30A, § 14, is identical to deciding whether a person is "aggrieved" for purposes of appealing from a zoning conclusion nether G. L. c. 40A, § 17. The Zoning Act, G. L. c. 40A, seeks to advance and protect interests dissimilar from Chiliad. 50. c. 111, § 150A, and certainly judicial review of an agency conclusion under c. 30A, § 14, is very different from judicial review of a local zoning board'south decision under c. 40A, § 17: review under c. 30A, § fourteen, is bars to the administrative record, and applies a substantial show examination; c. 40A, § 17, requires the reviewing judge to hear evidence and notice facts de novo, including facts related to standing. See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 117-120 (2011). See as well Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996).

[Note 28] In her argument before the courtroom, the plaintiffs' counsel adopted a position advocated by the amici Conservation Police force Foundation and Charles River Watershed Association, to the result that as citizen groups the plaintiffs had continuing to entreatment nether G. L. c. 30A, § 10A. That department provides in pertinent function that "not less than ten persons may intervene in any adjudicatory proceeding as defined in [G. Fifty. c. 30A, § one], in which damage to the environment . . . is or might be at issue . . . . Whatever such intervener shall be considered a political party to the original proceeding for the purposes of observe and any other procedural rights applicable to such proceeding . . . including specifically the correct of appeal." (Emphases added.) Id. The position now advanced by the plaintiffs must fail, however, considering as discussed in the text, supra, the lath's proceeding under § 150A was not an adjudicatory proceeding, but rather involved a public hearing. The fact that under § 150A, "[f]or the limited purposes" of an appeal, the board's last decision is "deemed to be a final decision in an adjudicatory proceeding," id., does non change the nature or character of the board'southward proceeding itself.

[Note 29] The owner or operator of a landfill or other facility located on an existing assigned site may seek a major or pocket-size modification of the site assignment. A major modification is ane that expands the volume of waste matter disposed of at an existing facility, expands the site vertically beyond the previously canonical limits, or requests a different use from the assigned solid waste activity, subject to a list of exceptions. See 310 Code Mass. Regs. § 16.22(2), citing § 16.21(1), (3). A small modification includes a request to modify a site consignment that would non be considered a major modification or a modification due to a threat to public health, safety, or the environment. See 310 Code Mass. Regs. § 16.22(1), (iii).

A asking for a major modification requires that the applicant submit to the local board of wellness a new site consignment application and a positive site suitability determination by the department, and so participate in a public hearing conducted by the local lath. Run across 310 Lawmaking Mass. Regs. §§ xvi.22(2), sixteen.08, sixteen.twenty. As stated earlier, an application for a small modification requires only that the lath hold a public hearing on the request. See id. at § xvi.22(iii).

[Note 30] In 2008, the department, in response to a request of the plaintiffs to undertake an enforcement action confronting SRDP, reviewed available historical fabric and determined that the entire sixty-iv-acre parcel, not but the 20.6 acres due north of Barefoot Road, was site assigned.

[Annotation 31] The plaintiffs merits that the board limited the actual site consignment made in 1999 to 32.2 acres, fifty-fifty though in connection with the 1999 site assignment application, the department had issued a site suitability report that approved an 82.2-acre expansion of the 1979 site consignment. In fact, however, the board's 1999 decision expressly incorporated the section'southward site suitability report blessing 82.2 acres as suitable for assignment; the smaller 32.2-acre portion on which the plaintiffs focus represents the specific portion of the site that would be used for waste disposal.

[Annotation 32] Under 310 Code Mass. Regs. § 16.02, a "Solid Waste Management Facility" may be used for processing directly related to solid waste activities. On November 16, 1998, the board unanimously voted to change the original name of the landfill facility involved in this example from "Existing Sanitary Landfill Facility" to "Solid Waste material Management Facility," thereby bringing the facility within the express language of the regulation.

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