KENNETH MACDONALD & Another v. DEPARTMENT OF ENVIRONMENTAL PROTECTION & Others.

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

24-P-923

KENNETH MACDONALD & another1

vs.

DEPARTMENT OF ENVIRONMENTAL PROTECTION & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Kenneth and Jodi MacDonald, appeal from a

judgment of the Superior Court affirming a final order of

conditions issued by the Department of Environmental

Protection's (DEP) Office of Appeals and Dispute Resolution

(OADR) granting defendant Kristen Kazokas permission to carry

out proposed work on her property in Littleton (property).3 We

conclude that the OADR acted within its discretion in declining

to include the accuracy of the wetlands delineations as an issue

1 Jodi MacDonald.

2 Conservation Commission of Littleton and Kristen Kazokas.

3This case was paired for oral argument with A.C. Docket
No. 23-P-1131 (MacDonald vs. Kazokas), also released today.
on appeal. We also conclude that the OADR acted within its

discretion in limiting a site visit to verifying the updated

wetland delineations. Finally, concluding that the OADR acted

within its discretion by finding that Kazokas did not perform

"unauthorized work" on her property during the pendency of the

proceedings before the OADR, we affirm.

1. Standard of review. We review a judge's ruling on a

motion for judgment on the pleadings de novo. See Boston Clear

Water Co. v. Lynnfield, 100 Mass. App. Ct. 657, 660 (2022).

Under G. L. c. 30A, § 14, "[w]e shall uphold an agency's

decision unless it is based on an error of law, unsupported by

substantial evidence, unwarranted by facts found on the record

as submitted, arbitrary and capricious, an abuse of discretion,

or otherwise not in accordance with law." Massachusetts Sober

Hous. Corp. v. Automatic Sprinkler Appeals Bd., 66 Mass. App.

Ct. 701, 704-705 (2006). "Substantial evidence [is] such

evidence as a reasonable mind might accept as adequate to

support a conclusion." Cave Corp. v. Conservation Comm'n of

Attleboro, 91 Mass. App. Ct. 767, 773 (2017), quoting Healer v.

Department of Envtl. Protection, 75 Mass. App. Ct. 8, 13 (2009).

"An agency's finding 'must be set aside if "the evidence

points to no felt or appreciable probability of the conclusion

or points to an overwhelming probability of the contrary."'"

Rodgers v. Conservation Comm'n of Barnstable, 67 Mass. App. Ct.

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200, 205 (2006), quoting New Boston Garden Corp. v. Assessors of

Boston, 383 Mass. 456, 466 (1981). As a reviewing court, we

consider "the entire record, . . . [and] shall give due weight

to the experience, technical competence, and specialized

knowledge of the agency, as well as to the discretionary

authority conferred upon it." G. L. c. 30A, § 14 (7). See

Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420

(1992).

2. Expansion of the issues. Under 310 Code Mass. Regs.

§ 10.05(7)(j)(2)(b)(v) (2014), an aggrieved party's notice of

appeal shall include "a clear and concise statement of the

alleged errors contained in the Reviewable Decision." Moreover,

310 Code Mass. Regs § 1.01(6)(k) (2004) states that "[t]he

Presiding Officer shall, absent good cause shown, limit the

issues for adjudication to the issues identified in the notice

of claim, more definite statement, and any motions to

participate or intervene, or as identified at the prescreening

conference." Additionally, G. L. c. 30A, § 11 (1), provides

that parties in adjudicatory proceedings before State agencies

"shall have sufficient notice of the issues involved. . . .

[W]here subsequent amendment of the issues is necessary,

sufficient time shall be allowed . . . to afford all parties

reasonable opportunity to prepare and present evidence and

argument respecting the issues" (emphasis added).

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Here, the DEP issued a superseding order of conditions

(OOC) for portions of Kazokas's project that fell under the

State wetlands regulation on October 3, 2017. The plaintiffs'

notice of appeal, dated October 16, 2017, listed seven bases for

their appeal, of which the accuracy of the wetlands delineation

was not included. On January 17, 2018, the plaintiffs submitted

a prehearing statement, wherein they reiterated the same seven

grounds listed in their notice of appeal. On January 26, 2018,

the OADR presiding officer held a prescreening conference to

identify the issues to be resolved on appeal, and thereafter on

January 29, 2018, the presiding officer issued a prehearing

report and order identifying two issues for resolution on

appeal: (1) whether the plaintiffs had standing to challenge

the superseding OOC, and, if so, (2) "whether the proposed work

authorized by the [superseding OOC] has been conditioned to meet

the requirements of 310 CMR 10.53(1) for activities in Buffer

Zone to the protected wetland areas of Bank, Bordering Vegetated

Wetlands, and Land Under Water."

On February 16, 2018, the plaintiffs filed a motion for an

extension of time and to compel discovery wherein they raised,

for the first time in the proceedings before the OADR, the

accuracy of the wetlands delineation as an issue on appeal.4

4 The plaintiffs' motion also requested that their expert
witness be permitted to gain access to the Kazokas's property

4
Following the filing of the plaintiffs' motion, both Kazokas and

the DEP filed oppositions. On June 8, 2018, the OADR presiding

officer denied the plaintiffs' motion to compel discovery,

ruling that the motion (1) was untimely and interposed for

delay, (2) did not seek discovery of information relevant to the

issues on appeal, and (3) was supported by a "vague or

incomplete" affidavit from the plaintiffs' expert.

The OADR presiding officer acted within his discretion in

declining to expand the issues on appeal to include the accuracy

of the wetlands delineation. First, as noted above, the

plaintiffs did not raise the issue of the accuracy of the

delineation as one of the bases for their appeal, as required by

310 Code Mass. Regs. § 10.05(7)(j)(2)(b)(v). Second, the

plaintiffs failed to present evidence of "good cause" warranting

expansion of the issues on appeal. See 310 Code Mass. Regs

§ 1.01(6)(k). As noted by the presiding officer, the

plaintiffs' expert's affidavit in support of the motion to

compel discovery merely noted the difficulties of performing

testing during the winter. The affidavit provided no basis for

believing that there were any problems with the existing

wetlands delineations or that such testing was necessary.

Third, and relatedly, based on the affidavit's meager showing,

during the spring because of the difficulties of identifying
wetlands in winter.

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the presiding officer reasonably concluded that an amendment of

the issues on appeal was not "necessary." G. L. c. 30A,

§ 11 (1). Thus, the OADR presiding officer acted within his

discretion in declining to expand the issues on appeal to

include the wetlands delineation. See Commercial Wharf E.

Condominium Ass'n v. Department of Envtl. Protection, 93 Mass.

App. Ct. 425, 433–434 (2018), quoting Zachs v. Department of

Pub. Utils., 406 Mass. 217, 227 (1989) ("where . . . the

evidentiary or discovery ruling is bound up with matters of

agency procedure, 'agencies have broad discretion over

procedural matters before them'").

3. Wetlands delineation. Notwithstanding the OADR

presiding officer's decision to exclude the issue of the

wetlands delineation on appeal, the plaintiffs argue that the

issue was subsequently raised by Kazokas when her expert

performed a wetlands delineation on a portion of the property

where there had been none prior. The plaintiffs contend that

the updated delineations called into question the accuracy of

all delineations on the property, and thus, required the

reexamination of all such delineations. For support, the

plaintiffs point to 310 Code Mass. Regs. § 10.55(2)(c)(2), which

provides that when wetlands delineations are "not presumed

accurate . . . credible evidence shall be submitted by a

competent source demonstrating that the boundary . . . is the

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line within which 50% or more of the vegetational community

consists of wetland indicator plants and saturated or inundated

conditions exist."

Here, despite the presiding officer's June 2018 ruling

limiting the issue on appeal, the plaintiffs submitted prefiled

testimony from their expert raising the issue of the accuracy of

the wetlands delineations. In particular, the expert opined

that he observed a fringe of the Bordering Vegetated Wetlands

(BVW) that extended within the fifty-foot "Title V setback" zone

of the Kazokas's proposed septic system. In response, Kazokas

submitted prefiled testimony from David Cowell, who testified

about a site assessment he conducted in 2018:

"At a single isolated location between wetland flags #2 and
#3 . . . there . . . [was] a negligible discrepancy in
which the jurisdictional wetland extended no more than 1 to
2 horizontal feet beyond the wetland flags. Otherwise, at
no other location did I observe jurisdictional wetlands
beyond the wetland flags, and at no point are there any
jurisdictional wetlands 8 to 12 feet beyond the wetland
delineation flags, as [the plaintiffs' expert] testifies."

Cowell further testified that he performed a wetland

delineation of the BVW along the shoreline of Kazokas's property

and the "seep," as described by the plaintiffs' expert, where

there had been no prior delineation. The DEP subsequently

sought leave to conduct a site visit limited to the updated

delineations along Kazokas's property. The OADR presiding

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officer granted the DEP's request for leave, and an October 2018

site visit took place with both experts in attendance.

On appeal, the plaintiffs assert that the OADR's decision

to limit the October 2018 site visit to exclude reexamination of

the wetland delineations along the intermittent stream was

arbitrary and capricious. We disagree. First, although 310

Code Mass. Regs. § 10.55(2)(c)(2) provides that the "issuing

authority must evaluate" a wetlands boundary if presented with

"credible evidence," the plain language of the statute does not

require such evaluation to occur in person, as the plaintiffs

posit. Rather, given that the accuracy of the wetlands

delineation was not an issue on appeal, the OADR was entitled to

credit Cowell's conclusion that the intermittent stream was "not

relevant for the permitting of this project," as it "f[ell]

entirely internal to the BVW flags . . . and the buffer zones

broadcast from Inland Bank [of the stream] are less restrictive

than the BVW buffer zones detailed on the plan." Accordingly,

the presiding officer's decision to limit the site visit to the

updated delineations was not arbitrary and capricious.5 See

Duggan v. Board of Registration in Nursing, 456 Mass. 666, 674

5 Given our conclusion that the OADR presiding officer
properly acted within his discretion in limiting the site visit
to verification of the updated delineations, we also conclude
that the OADR's decision to affirm the superseding OOC was based
on substantial evidence. See Cave Corp., 91 Mass. App. Ct. at
773-774.

8
(2010), quoting Cobble v. Commissioner of the Dep't of Soc.

Servs., 430 Mass. 385, 393 n.8 (1999) ("[I]t is for the agency,

not the reviewing court, to weigh credibility of witnesses and

resolve factual disputes involving contradictory testimony).

4. Work during appeal. Under 310 Code Mass. Regs.

§ 10.05(7)(j)(2)(g), "[n]o work shall be undertaken until all

administrative appeal periods from a Reviewable Decision have

elapsed . . . ." "Work" or "activity" is defined as "any form

of draining, dumping, dredging, damming, discharging,

excavating, filling or grading; . . . the destruction of plant

life; and any other changing of the physical characteristics of

land." 310 Code Mass. Regs. § 10.04. Under 310 Code Mass.

Regs. § 10.02(2)(b)(1), however, "[m]inor activities . . .

within the buffer zone . . . are not otherwise subject to

regulation under [G. L. c. 131, § 40] . . . ." Such "minor

activities" include "[v]egetation cutting for road safety

maintenance" insofar as it is limited to the "[r]emoval of

diseased or damaged trees or branches that pose an immediate or

substantial threat to driver safety from falling into the

roadway." 310 Code Mass. Regs. § 10.02(2)(b)(2)(n).

On October 20, 2017, Kazokas emailed a DEP supervisor

regarding "tree work done for safe and clear passage" along her

driveway. In her email to the DEP supervisor, Kazokas noted

that she understood the "tree work" to be "minor activity within

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the buffer zone that is not otherwise subject to regulations as

explained in 310 CMR 10.2 (2) (b)." The DEP's expert later

testified that she conducted a site visit shortly after

Kazokas's email, where she observed that there was no

"stump[ing]" of trees in the buffer zone, and thus, no

violation. Based on the site visit, she made the determination

"not to advance with enforcement."

Here, based on the evidence before it, the OADR was

entitled to credit the DEP expert's opinion that the "work"

Kazokas completed "could also be done without a permit."

Moreover, the OADR could credit Kazokas's testimony that she had

been in "frequent communication" with the DEP regarding work

done on her property, including activities that were conducted

outside of the buffer zone, and that both the DEP and the

Conservation Commission of Littleton had visited her property

and given her permission to conduct the work. Faced with this

evidence, the OADR was entitled to determine that Kazokas did

not perform any unauthorized work on her property during the

pendency of the appeal before the OADR.6 See Duggan, 456 Mass.

at 674. See also Beverly Port Marina, Inc. v. Commissioner of

6 We note that, although 310 Code Mass. Regs. § 1.01(10)
permits the presiding officer to impose sanctions on a party
that performs unauthorized work during the pendency of an
appeal, we are aware of no authority that requires the denial of
an otherwise proper permit in such circumstances.

10
the Dep't of Envtl. Protection, 84 Mass. App. Ct. 612, 620

(2013), quoting Cobble v. Commissioner of the Dep't of Soc.

Servs., 430 Mass. 385, 390 (1999) (courts "defer to the agency

on questions of fact and reasonable inferences drawn from the

record").

Judgment affirmed.

By the Court (Neyman,
Ditkoff & Englander, JJ.7),

Clerk

Entered: December 30, 2025.

7 The panelists are listed in order of seniority.

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