SHANNON DEOLIVEIRA & Another v. BUILDING COMMISSIONER OF BILLERICA & 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

25-P-98

SHANNON DEOLIVEIRA & another1

vs.

BUILDING COMMISSIONER OF BILLERICA & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Shannon and Anthony DeOliveira (plaintiffs) appeal from the

entry of summary judgment dismissing their claims in the nature

of mandamus and certiorari. They argue, in essence, that

summary judgment should not have entered where (1) their request

for certiorari review was appropriate because two related civil

cases do not provide a reasonably adequate remedy, and (2) their

mandamus claim was not too broad or vague, and did not involve a

discretionary function. We affirm.

1 Anthony DeOliveira.

2Zoning board of appeals of Billerica, director of public
health of Billerica, and board of health of Billerica. These
parties and the building commissioner are referred to
collectively as "the defendants" herein.
Background. We summarize the relevant facts, viewing "the

evidence in the light most favorable to the party against whom

summary judgment was entered" (citation omitted). Williams v.

Board of Appeals of Norwell, 490 Mass. 684, 685 (2022).

In 2015, the owner of a property abutting the plaintiffs'

home (abutter) sought to construct an addition at his property

including a two-car garage, upstairs family room, and connecting

deck. Both the plaintiffs' and the abutter's properties are

situated within a flood plain. Consequently, in order to

undertake additions to his property, the abutter was required to

obtain a variance from the town of Billerica's (town) board of

health (BOH) pursuant to chapter 5, § 5.5.005 of the BOH rules

and regulations (rules and regulations). On May 4, 2015, the

abutter obtained a variance allowing him to undertake the

project which required, inter alia, all construction be in

accordance with plans submitted for review and approval, all

drainage and stormwater management structures be installed and

functioning in accordance with design standards, installation of

flood vents in the proposed garage addition "to allow for the

entry and exit of flood waters," and prohibiting the abutter

from backfilling stormwater drainage and infiltration systems

until an inspection was performed by the BOH. The abutter,

however, failed to comply with various requirements of the

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variance. Despite the abutter's failure to follow the variance

requirements, there have been no repercussions from either the

BOH or the town.

The plaintiffs claim that because the abutter's

construction of the addition did not include required flood

mitigation efforts, the addition altered drainage in the

surrounding area, causing the plaintiffs to experience

substantial flooding in their yard, which had not occurred in

the past. On October 25, 2022, the plaintiffs submitted a

request to the director of public health (director) seeking

enforcement of the conditions of the variance. On November 28,

2022, after the director did not respond, the plaintiffs

submitted an appeal to the BOH, which likewise did not respond.

No formal hearing was held by either the director or the BOH.

The rules and regulations provide no right to appeal either

the director's or the BOH's failure to respond to a resident's

enforcement requests. Accordingly, on January 27, 2023, the

plaintiffs filed a complaint in the Superior Court seeking

relief in the nature of certiorari and mandamus under G. L.

c. 249 §§ 4-5, to enforce the conditions of the variance and

remediate flooding issues on their property. In addition, the

plaintiffs had earlier filed two separate actions in the

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Superior Court against the abutter and the town (pending

actions) relating to the causes of flooding on the property.3

On April 3, 2024, the plaintiffs moved for summary

judgment, and, on the same day, the defendants filed their

opposition and cross motion for summary judgment. Following a

hearing and review, the judge denied the plaintiffs' motion for

summary judgment and allowed the defendants' cross motion. The

judge reasoned that the plaintiffs' claim for certiorari review

was not timely and that the two pending actions provided

reasonably adequate remedies. The judge also found that

mandamus relief was not appropriate because the regulations that

3 "[J]udicial notice can be taken by trial and appellate
courts" (citation omitted). Commonwealth v. Grinkley, 44 Mass.
App. Ct. 62, 69 n.9 (1997). See Mass. G. Evid. § 201 (2025),
and cases cited. In particular, "we may take judicial notice of
the docket entries and papers filed in separate cases." Home
Depot v. Kardas, 81 Mass. App. Ct. 27, 28 (2011). In one of the
pending actions, the plaintiffs brought a claim under G. L.
c. 249, § 5, to order the town to repair or replace a broken
municipal drainpipe that runs underneath the plaintiffs'
property to stop the continuance of flooding that it causes
there. In the other pending action, the plaintiffs allege that
the abutter's construction crushed or substantially damaged the
drainpipe. The plaintiffs seek a writ of mandamus to command
the town to repair or replace the pipe, an award of damages for
the damage to, and loss of use of, their property, attorney's
fees and costs, interest, and "other and further relief as [the
court] may deem just and proper." In their case against the
abutter, the plaintiffs claim private nuisance, negligent
trespass, and negligence and seek an order commanding the
abutter to "remedy any and all conditions causing harm to the
Plaintiffs' property." The two cases were consolidated on May
17, 2024.

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the plaintiffs sought to enforce were discretionary acts and

because the relief they sought was too broad and vague. The

plaintiffs filed a timely appeal.

Discussion. "The standard of review of a grant of summary

judgment is whether, viewing the evidence in the light most

favorable to the nonmoving party, all material facts have been

established and the moving party is entitled to judgment as a

matter of law" (citation omitted). Dorchester Mut. Ins. Co. v.

Miville, 491 Mass. 489, 492 (2023). "We review decisions

allowing summary judgment de novo" (citation omitted). Id.

1. Certiorari. The plaintiffs argue that the judge erred

in concluding that their certiorari complaint was untimely and

that other reasonably adequate remedies were available. They

contend that the failure to hold a hearing should be treated as

a quasi judicial hearing and that, because no hearing occurred,

the limitations period did not begin to run. We disagree.

A civil action in the nature of certiorari under G. L.

c. 249, § 4, is "to relieve aggrieved parties from the injustice

arising from errors of law committed in proceedings affecting

their justiciable rights when no other means of relief are

open." Figgs v. Boston Hous. Auth., 469 Mass. 354, 361 (2014),

quoting Swan v. Justices of the Superior Court, 222 Mass. 542,

544 (1916). "The scope of judicial review for an action in the

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nature of certiorari under G. L. c. 249, § 4, is limited."

Retirement Bd. of Somerville v. Buonomo, 467 Mass. 662, 668

(2014). The judge's role on certiorari review is to "examine

the record . . . and to 'correct substantial errors of law

apparent on the record adversely affecting material rights.'"

Doucette v. Massachusetts Parole Bd., 86 Mass. App. Ct. 531,

540-541 (2014), quoting Firearms Records Bur. v. Simkin, 466

Mass. 168, 180 (2013). A plaintiff is entitled to certiorari

review of an administrative decision if he or she can

demonstrate the presence of three elements: "(1) a judicial or

quasi judicial proceeding, (2) from which there is no other

reasonably adequate remedy, and (3) a substantial injury or

injustice arising from the proceeding under review" (citation

omitted). Revere v. Massachusetts Gaming Comm'n, 476 Mass. 591,

600 (2017). General Laws c. 249, § 4, requires that "[a] civil

action in the nature of certiorari . . . . shall be commenced

within sixty days next after the proceeding complained of."

We first consider whether the request for an agency action

constitutes a quasi judicial proceeding in the context of the

present case. "In classifying an agency proceeding as quasi

judicial, we have looked to the form of the proceeding

reasonably performed by the agency, and the extent to which that

proceeding resembles judicial action." Hoffer v. Board of

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Registration in Med., 461 Mass. 451, 457 (2012), citing School

Comm. of Hudson v. Board of Educ., 448 Mass. 565, 576 (2007).

Here, there was no proceeding at all, and the plaintiffs cite no

Massachusetts case law supporting the proposition that the

absence of a judicial proceeding constitutes a proceeding

reviewable under the certiorari statute.4 Nor is there any

support for the proposition that the absence of a hearing makes

their claim timely. Indeed, there were no "unsworn statements

by interested persons advocating or disapproving [a] proposed

new policy" (citation omitted), nor adversarial presentation of

opposing pleadings. School Comm. of Hudson, supra. There was

nothing "resembl[ing] judicial action" in this case, thus, we

cannot say there was either a judicial or quasi judicial

4 The plaintiffs cite Revere, 476 Mass. at 602, for the
proposition that "the category of quasi judicial proceedings
recognized under Massachusetts law is flexible enough to include
the matter at issue in this case." We disagree. That case
involved a civil action brought against the Massachusetts Gaming
Commission, alleging numerous defects in the commission's
process for awarding a gaming license. Id. at 594. The Supreme
Judicial Court concluded, in relevant part, that certiorari
review of the gaming commission's licensing decision was
available because the licensing hearing that was the subject of
the challenge before the gaming commission constituted a quasi
judicial proceeding. Id. at 600-602. The broad language in
that case does not support the proposition that the absence of a
judicial proceeding constitutes a quasi judicial proceeding
subject to certiorari review.

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proceeding. Hoffer, supra. Consequently, certiorari review is

inappropriate here.5

2. Mandamus. The plaintiffs claim that the judge's denial

of their request for relief in the nature of mandamus was

erroneous because the judge wrongly concluded that the BOH

regulations they sought to enforce were discretionary rather

than mandatory. We disagree.

A request for relief in the nature of mandamus pursuant to

G. L. c. 249, § 5, is "a call to a government official to

perform a clear-cut duty" (citation omitted). Simmons v. Clerk–

Magistrate of the Boston Div. of the Hous. Court Dep't, 448

Mass. 57, 59–60 (2006). However, "a court may not compel

performance of a discretionary act." Lutheran Serv. Ass'n of

New England v. Metropolitan Dist. Comm'n, 397 Mass. 341, 344

(1986). "The law is clear that mandamus is only available to

compel a government official to perform acts that do not involve

a significant exercise of discretion." Currence v. A.D.

Makepeace Co., 106 Mass. App. Ct. 71, 84 (2025).

Here, the plaintiffs are attempting to compel a government

enforcement proceeding. Government enforcement proceedings

5 Even assuming arguendo that the plaintiffs had
demonstrated the existence of a quasi judicial proceeding, we
cannot say on the record before us that the two pending cases
fail to provide a reasonably adequate remedy.

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"historically ha[ve] been viewed as . . . a discretionary

decision." Currence, 106 Mass. App. Ct. at 84. "In the absence

of an alternative remedy, relief in the nature of mandamus is

appropriate to compel a public official to perform an act which

the official has a legal duty to perform." Id. at 85, quoting

Lutheran Serv. Ass'n of New England, 397 Mass. at 344. Here,

however, there is no clear directive in the regulations

requiring the BOH to conduct enforcement. Indeed, chapter 1,

§ 1.2.003(a) of the rules and regulations states: "The Director

of Public Health may issue administrative orders to affect

Administrative Enforcement Actions." Moreover, the penalties

under § 1.19.002 of the rules and regulations provide: "After a

duly noticed hearing, the Board of Health may revoke or suspend,

for just cause, any license, permit, variance . . . . In

addition, the Board of Health may enforce its rules and

regulations using any other established means of enforcement

. . . ." The rules and regulations' use of discretionary

language, such as "may," renders any agency enforcement action a

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matter of discretion. As the mandamus claim seeks to compel a

discretionary act, it fails as a matter of law.6

Judgment affirmed.

By the Court (Neyman,
D'Angelo & Allen, JJ.7),

Clerk

Entered: February 2, 2026.

6 Where we hold that the plaintiffs seek to compel
discretionary action, we do not address the issue of whether
their claim was too broad or vague.

7 The panelists are listed in order of seniority.

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