JEFFREY A. KING & Another v. CONSERVATION COMMISSION OF HARWICH (And a Consolidated Case).

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-1186

JEFFREY A. KING & another1

vs.

CONSERVATION COMMISSION OF HARWICH
(and a consolidated case2).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs appeal from two Superior Court judgments

that affirmed separate orders of the conservation commission of

Harwich (commission) concerning the plaintiffs' violations of

the town of Harwich's wetlands protection bylaw (bylaw) on the

plaintiffs' property. The first order found that the plaintiffs

had unlawfully constructed an addition and porch within fifty

feet of a wetland, and it required them to remove those

structures. The second order denied the plaintiffs' application

1 James M. Kelly.

2Jeffrey A. King & another vs. Conservation Commission of
Harwich.
for what was in effect a variance to allow the structures to

remain. We affirm the judgments upholding the orders.

Background. We recite the facts as they appear in the

records of the two commission proceedings, as filed by the

commission in response to the Superior Court complaints. We

reserve certain details for later discussion.

1. Enforcement proceeding. In May 2016, the commission's

administrator met with one of the plaintiffs at the property and

found that the plaintiffs, without a permit, had constructed a

porch and addition within the fifty-foot "no-disturb zone" that

section 310-2.A of the bylaw and section 1.04(3) of the

commission's wetland protection regulations (regulations)

establish around wetlands in Harwich.3 The administrator issued

an order directing the plaintiffs or their representative to

appear at a show-cause hearing before the commission to discuss

the matter. At that hearing, the plaintiffs were represented by

Arthur Lafranchise, a friend who had a small financial interest

in the property. Lafranchise acknowledged that the construction

had occurred without a permit. The hearing was continued to a

3 The administrator also found that the construction
violated G. L. c. 131, § 40, the State wetlands protection act
(WPA). The ensuing commission proceedings thus involved the
enforcement of the WPA as well as the town bylaw. We need not
discuss the WPA aspect of the proceedings except when relevant
to specific issues the plaintiffs raise on appeal.

2
future commission meeting to allow for submission of additional

information.

When the hearing resumed in July 2016, the commission had

before it a 2016 plan, and other materials prepared for the

plaintiffs, showing the new porch and a ten-foot by twelve-foot

addition as entirely within a line fifty feet from the edge of

the wetland (i.e., entirely within the no-disturb zone).

Lafranchise argued that, rather than requiring removal of the

new structures, the commission should impose a significant fine.

The commission voted to find the plaintiffs in violation of the

bylaw and to require the structures' removal. In its written

decision, the commission further found that the plaintiffs' new

porch was, at its closest point, only nine feet from the edge of

the wetland.

The plaintiffs sought certiorari review in Superior Court.

The commission answered and counterclaimed for enforcement of

its order. The plaintiffs moved to dismiss the counterclaims on

the ground that the commission lacked standing to seek

enforcement of its order; a judge (first judge) denied that

motion. On the parties' cross motions for judgment on the

pleadings, the first judge ordered judgment affirming the

commission's decision and, on the commission's counterclaims,

3
requiring the plaintiffs to remove the structures and restore

the area to its previous condition. The plaintiffs appealed.

2. Variance proceeding. On May 4, 2017, while the first

Superior Court case was pending, the plaintiffs filed with the

commission an after-the-fact notice of intent, which included an

application for a variance from the no-disturb-zone bylaw, to

allow the structures to remain in place. The plaintiffs' filing

included a written waiver of the statutory requirement for a

hearing within twenty-one days of their application. See G. L.

c. 131, § 40, seventeenth par. The waiver was signed by the

plaintiffs' new representative, Paul Shea. The commission began

its hearing on June 7, 2017, continued it to and completed it on

June 21, 2017, and thereafter timely issued a decision denying

the variance request.

The plaintiffs then commenced a second Superior Court

action, seeking certiorari review of the commission's variance

decision. On the parties' cross motions for judgment on the

pleadings, a judge (second judge) affirmed the decision. The

plaintiffs again appealed, and their two appeals were

consolidated in this court.

4
Discussion. We review the commission's enforcement order

to determine if it was arbitrary and capricious.4 See Garrity v.

Conservation Comm'n of Hingham, 462 Mass. 779, 792 (2012). We

will review the commission's variance decision as we would a

wetlands permit decision; such "review is limited at most to

whether the commission's decision is supported by substantial

evidence in the administrative record . . . [or] arbitrary and

capricious, and whether the commission committed an abuse of

discretion or other error of law." Delapa v. Conservation

Comm'n of Falmouth, 93 Mass. App. Ct. 729, 733–734 (2018). In a

certiorari case, "[b]ecause we are reviewing the same record of

[commission] proceedings as was before the Superior Court, we

review the record . . . without giving the view of the Superior

Court judge any special weight" (quotation and citation

omitted). P.J. Keating Co. v. Acushnet, 104 Mass. App. Ct. 65,

69–70 (2024).

4 We need not determine whether the plaintiffs are correct
in arguing, that the enforcement order must also be supported by
substantial evidence, or that, to obtain a judicial enforcement
order, the commission must prove the existence of a violation.
See Fafard v. Conservation Comm'n of Reading, 41 Mass. App. Ct.
565, 567-568 (1996); Bourne v. Austin, 19 Mass. App. Ct. 738,
742 (1985), citing Brotherhood of Alpha Upsilon, Inc. v. Zoning
Bd. of Appeals of Bridgewater, 15 Mass. App. Ct. 991, 992
(1983). The commission's enforcement order and its filings in
Superior Court meet those standards in any event.

5
1. Evidence supporting enforcement order. The plaintiffs

first argue that there is insufficient evidence in the record to

support the commission's enforcement order. Because the

plaintiffs do not specify precisely what evidence is lacking, we

will assume their claim is that there was insufficient evidence

that the new construction occurred in the fifty-foot no-disturb

zone. We are not persuaded.

The 2016 plan and related materia1s, prepared for the

plaintiffs and before the commission in the enforcement

proceeding, plainly showed that the new structures were less

than fifty feet from the edge of the wetland. Although this

evidence was sufficient, the record also shows that the

commission's administrator had personally visited the site with

one of the plaintiffs; the administrator described for the

commission the violation she observed, and a commission member

visited the site several times and agreed with the

administrator's assessment. Notably, the plaintiffs'

representative, Lafranchise, agreed that the work had been done

without a permit and did not contest that the work was within

the no-disturb zone; he argued only that, rather than requiring

6
removal of the structures, the commission should impose a

significant fine.5

2. Salt marsh. The plaintiffs next argue that there was

no evidence to support the commission's statement in its

enforcement order that one part of the new porch was only nine

feet from the edge of the "wetland (Salt Marsh)." Section 310-

2.A of the bylaw defines the no-disturb zone as the zone fifty

feet landward of "an abutting resource area," which section

1.04(3) of the regulations further describes as including, among

other things, "any fresh water wetland" and any "marsh." The

area where the construction occurred is shown on the 2016 plan

as lying within a line labeled "50' from edge [of] wetland."

Whether it is a freshwater wetland or a salt marsh makes no

difference here. The plaintiffs' argument therefore does not

entitle them to relief.6

3. "Alteration" of wetland resource area. The plaintiffs

challenge the enforcement order on the ground that there was no

evidence their construction activity produced any "alteration"

5 Lafranchise's failure to contest the existence of a
violation is not itself evidence, but it helps explain why the
evidence of a violation is not more developed.

6 We note that a 2017 plan submitted by the plaintiffs in
the variance proceeding includes not only the delineation of the
wetland's edge but also a flag marking the area as a "Coastal
Wetland/Salt Marsh."

7
of the wetland, as they claim is required to find a violation

under the State wetlands protection act (WPA), G. L. c. 131,

§ 40, and the bylaw. See note 3, supra. As the plaintiffs

point out, the commission, in the course of the later variance

proceeding, approved the construction insofar as it implicated

the WPA, and denied the variance only as to the requirements of

the bylaw. Thus the question whether the enforcement order was

correct in finding an alteration of a wetland in violation of

the WPA is moot and need not be resolved.

Insofar as the bylaw is concerned, the plaintiffs err in

claiming that a finding of "alteration" is a prerequisite to

finding a violation of the bylaw. This is in part because the

plaintiffs conflate the commission's jurisdiction with the

substantive requirements applicable within that jurisdiction.

The plaintiffs rely on section 310-3 of the bylaw, entitled

"Jurisdiction." Under that section, "[e]xcept as permitted by

the [commission] or as provided for in this bylaw, no person

shall commence to remove, fill, dredge, build upon, degrade,

discharge into, or otherwise alter any freshwater or coastal

wetland resource areas" or lands within one hundred feet thereof

(emphasis added). The plaintiffs have not argued that the

catchall phrase "otherwise alter" means that only those building

activities that "alter" a wetland resource area are within the

8
commission's jurisdiction. Thus, by "commenc[ing] to . . .

build" their addition and porch upon land within one hundred

feet of the wetland, the plaintiffs, at a minimum, subjected

themselves to the commission's jurisdiction.

As for whether there was a violation, because the

construction activity undisputedly had not been "permitted by

the [commission]," section 310-3 makes it necessary to determine

whether the activity was undertaken "as provided for in [the]

bylaw." The commission permissibly found that it was not. What

placed the plaintiffs in violation is that, contrary to the no-

disturb zone provision in section 310-2.A, they "buil[t] within

or upon" the no-disturb zone without being "expressly allowed

[to do so] by a variance from the [commission]." And section

1.04(3) of the regulations provides that, with certain

exceptions not claimed to be relevant here, "no new structures

will be permitted in the no-disturb zone." Nothing in section

310-2.A confines its reach to only those building activities

that "alter" the no-disturb zone. Therefore, regardless of

whether there was any such alteration, we see no error in the

commission's conclusion that the plaintiffs violated the bylaw.7

7 The plaintiffs' conclusory suggestion in a single sentence
of their brief that this violation warranted only "a single
fine," does not rise to the level of appellate argument under
Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628
(2019), and we decline to consider it. See Maroney v. Planning

9
4. Order for removal of structures. The plaintiffs argue

that the commission had no authority under the bylaw to order

removal of the structures and at most could order the plaintiffs

only to file an after-the-fact notice of intent seeking a

variance from the no-disturb zone requirements. The plaintiffs

base this argument on their view that "there was no evidence

that the construction altered any wetland." As discussed above,

however, the commission could and did find a violation

regardless of whether there was any such alteration.

The plaintiffs further claim that the commission's decision

to require removal of the new structures, instead of merely

imposing a fine, was impermissibly motivated by a desire to

impose "punishment" for the plaintiffs' failure to apply for

permission for the construction. But the plaintiffs cite no

provision of the bylaw or regulations, or any other law, that

limited the commission's discretion in selecting a remedy here.

Moreover, even if the plaintiffs had persuaded us that the

removal order was "punishment" (which they have not), a

reviewing court may not displace an agency's discretionary

choice of a sanction absent "the most extraordinary of

circumstances," and none are present here. Levy v. Board of

Bd. of Haverhill, 97 Mass. App. Ct. 678, 683 n.8 (2020) (claims
not adequately argued on appeal are waived).

10
Registration & Discipline in Med., 378 Mass. 519, 528-529

(1979).

5. Commission's standing to seek judicial enforcement.

The plaintiffs argue that, both under the WPA and under the

bylaw, the commission lacked "standing" to assert counterclaims

for enforcement of its order that the structures be removed.8 As

for the WPA, the plaintiffs note that it allows for enforcement

by a court with equity jurisdiction "upon the petition of . . .

a city or town." G. L. c. 131, § 40, thirtieth par. The

plaintiffs argue that the commission is not the same as the town

and thus cannot seek enforcement of the WPA.

If it were necessary to reach this argument, we would

reject it, essentially for the reasons explained immediately

infra with respect to the bylaw. The argument is moot, however,

because, as already discussed, the commission later approved the

construction insofar as it implicated the WPA. The commission

thus can no longer seek the structures' removal under the WPA.

8 Although we adopt as a matter of convenience the
plaintiffs' characterization of their argument as going to
"standing," the argument appears to relate more to whether the
counterclaims were asserted in the name of the real party in
interest, a matter best addressed under Mass. R. Civ. P. 17 (a),
461 Mass. 1401 (2011). We do not imply that the counterclaims
here were defective in that regard.

11
The question whether it properly did so earlier in this

litigation is now academic.9

As for the commission's ability to assert its counterclaims

for enforcement of the bylaw, the plaintiffs point to bylaw

section 310-11.C, which provides that, "[u]pon request of the

[c]ommission, the [s]electmen and the [t]own [c]ounsel may take

legal action for enforcement under civil law." The plaintiffs

assert that the commission is not the same as the selectmen (or

selectboard) and thus could not assert its counterclaims.

Notably, the plaintiffs' argument is not that the selectboard

and town counsel did not approve the filing of the counterclaims

in accordance with usual town procedures. The plaintiffs argue

only that the counterclaims were not asserted in the name of the

correct party.

The bylaw, however, does not require that, when the

selectboard and town counsel take enforcement action, they do so

in their own names. At a minimum, the selectboard may

authorize, and town counsel may file, a suit in the name of the

9 The commission's brief suggests that it could still press
the request made in one of its counterclaims to enforce its
order imposing civil penalties for the plaintiffs' actions
before they obtained WPA approval for the structures. The
Superior Court, however, did not grant that relief, and the
commission did not cross-appeal from that aspect of the court's
judgment. Thus, whether the commission properly counterclaimed
for penalties under the WPA is no longer a live issue.

12
town. See G. L. c. 40, § 2 ("A town may in its corporate

capacity sue and be sued by its name, and may appoint necessary

agents therefor"). Here, the counterclaims were asserted in the

name of the "Town of Harwich Conservation Commission."10 The

plaintiffs fail to explain how this party designation is

materially different from the designation, "Town of Harwich."

Nothing in the statute authorizing cities and towns to establish

conservation commissions, G. L. c. 40, § 8C, suggests that such

a commission has any corporate or other legal existence separate

from the municipality that created it. Thus the addition of the

phrase "Conservation Commission" to the designation "Town of

Harwich" does not change the nature of the party asserting the

counterclaims in any way that appears relevant, or prejudicial

to the plaintiffs.11 We therefore reject the plaintiffs' attack

on what they characterize as the commission's standing.

6. Twenty-one-day hearing requirement. The plaintiffs

argue that the commission, once it received the plaintiffs'

10 The plaintiffs do not argue that counsel representing
the conservation commission of Harwich is not town counsel.

11If the sue-and-be-sued language of G. L. c. 40, § 2, were
interpreted to require the counterclaims to have been asserted
in the name of the town of Harwich rather than the "Town of
Harwich Conservation Commission," then the plaintiffs' two
complaints for judicial review would likewise have been
defective, as they named as defendants only the members of the
commission, rather than the town itself.

13
after-the-fact notice of intent (including their variance

request), failed to open a hearing within twenty-one days, as

required by the WPA, and therefore lost jurisdiction over the

matter. See Boston Clear Water Co., LLC v. Lynnfield, 100 Mass.

App. Ct. 657, 660-662 (2022), citing Oyster Creek Preservation,

Inc. v. Conservation Comm'n of Harwich, 449 Mass. 859, 864-866

(2007). The plaintiffs recognize that their representative,

Shea, signed a waiver of that requirement, which waiver

specified the date on which the hearing would be held (thirty-

four days later, rather than twenty-one days), but the

plaintiffs now claim that the waiver was involuntary and thus

invalid. Cf. Garrity, 462 Mass. at 790 (burden of proving

voluntariness of waiver of WPA's requirement of decision within

twenty-one days after hearing is on commission).

We will assume without deciding that Boston Clear Water

Co., LLC applies where (as here), even after expiration of the

twenty-one-day period, an applicant does not seek relief from

the Department of Environmental Protection. See Boston Clear

Water Co., LLC, 100 Mass. App. Ct. at 661. Nevertheless, the

plaintiffs' attack on the waiver signed by Shea is unavailing,

for the following reasons.

The waiver in Garrity was held involuntary because the

waiver form in that case had no designated place for signature

14
by the applicant and instead was merely referenced in a

checklist that the applicant was required to sign and file along

with his notice of intent. See Garrity, 462 Mass. at 789-790.

The court ruled that the checklist "would reasonably be

understood by an applicant to require submission of a signed

waiver form as part of the application" and thus did not

demonstrate a clear waiver of the applicant's rights (emphasis

added). Id. at 790. Here, in contrast, the commission's waiver

form contained a signature line, and it was signed by the

plaintiffs' representative, Shea. No more is required to prove

the voluntariness of the waiver, at least where, as here, the

plaintiffs cite no evidence to the contrary and instead rely

solely on unsupported allegations in their brief.

The plaintiffs further contend that the commission did not

meet what the plaintiffs assert is its burden under Garrity, 462

Mass. at 788-789, of showing that proper public notice of the

waiver was given. This contention, made in two short sentences

without record citations, does not rise to the level of

appellate argument and need not be considered. See note 7,

supra. In any event, the burden discussed in Garrity is that of

proving the voluntariness of the waiver of the requirement for a

decision within twenty-one days after a hearing -- not of

proving proper public notice of the waiver of the requirement

15
for a hearing within twenty-one days of the filing of the

application, which is what the plaintiffs claim was lacking

here. See Garrity, supra at 790. Moreover, here, the record

shows that notice of the agreed-upon hearing date (June 7, 2017)

was sent to abutters two days after the application was filed.

In addition, once the hearing was continued until the

commission's June 21, 2017, meeting, the record suggests that

the agenda for that meeting, which included the continued

hearing on the plaintiffs' application, was posted on the town's

website. In these circumstances, and absent any assertion by

the plaintiffs that any lack of public notice prejudiced them,

no relief based on the claimed lack of such notice is warranted.

7. Denial of variance. The plaintiffs assert that the

commission's decision failed to include sufficient explanation

of why the variance was denied. We are unconvinced. The

plaintiffs fail to acknowledge that the commission's regulations

create, at a minimum, a strong presumption against granting the

type of variance the plaintiffs sought. Section 1.04(1) of the

regulations explains that "few, if any, activities will be

allowed within [the no-disturb] zone. For example, no new

structures of any kind . . . will be permitted. The

[c]ommission intends to strictly apply and enforce all

requirements applicable to the no-disturb zone." Section

16
1.04(3) states that, with two exceptions not relevant here, "no

new structures will be permitted in the no-disturb zone."

Against this backdrop, section 1.13 of the regulations

allows for a variance in three main circumstances. The

commission found that none of them were applicable here. We

address them in turn.

First, a variance may be granted where the applicant makes

"a clear and convincing showing . . . that the proposed work

. . . will not adversely affect the interests protected by the

[b]ylaw," taking into account "other reasonable alternatives and

mitigation which would permit the proposed work to be undertaken

without deviating from the provisions of these regulations."

The commission found that one of the new structures came within

nine feet of the edge of the wetland and that the plaintiffs had

proposed no alternatives.

Second, a variance may be granted to avoid an

unconstitutional taking without compensation. The commission

found that denying the variance would not result in such a

taking.

Third, a variance may be granted to avoid a hardship. The

commission found that denying the variance would not result in a

hardship. Notably, the commission found that one of the

plaintiffs, before undertaking the construction, was aware of

17
the wetlands laws governing his property, yet he proceeded

without any permit from the commission or the town building

department.

These findings were sufficient to explain the denial of the

variance. The plaintiffs point to no specific provision of the

variance regulation as to which the commission's findings were

inadequate. Rather, the plaintiffs appear to take issue with

the reasonableness of the no-disturb zone provision itself. Yet

they offer no legal argument for invalidating it on that basis,

let alone an argument that they preserved for appeal.12

8. Adoption of no-disturb zone bylaw. The plaintiffs

claim that the no-disturb zone bylaw, at least as applied here,

functions as a zoning bylaw, but was not adopted in accordance

with the procedural requirements of the zoning enabling act,

G. L. c. 40A, § 5.

12Because we affirm on the merits the commission's decision
denying the variance, we need not address the commission's
argument for affirmance based on the issue preclusive effect of
the Superior Court judgment upholding the enforcement order.

18
We see no indication that the plaintiffs raised this argument in

either of the Superior Court proceedings leading to these

appeals. The argument is therefore waived. See Albert v.

Municipal Court of Boston, 388 Mass. 491, 493-494 (1983).

Judgments affirmed.

By the Court (Henry, Sacks &
Tan, JJ.13),

Clerk

Entered: January 30, 2026.

13 The panelists are listed in order of seniority.

19