KENNETH MACDONALD & Another v. KRISTEN KAZOKAS & Another.

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

23-P-1131

KENNETH MACDONALD & another1

vs.

KRISTEN KAZOKAS & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Kenneth and Jodi MacDonald, appeal from a

judgment of the Superior Court affirming decisions of the

Conservation Commission of Littleton (commission) granting

defendant Kristen Kazokas an order of conditions (OOC) and an

amended order of conditions allowing her to upgrade her property

in Littleton (property).3 We conclude that the commission's

findings that minimum fire safety requirements are within the

public interest and that Kazokas's proposed plan was the least

1 Jodi MacDonald.

2 Conservation Commission of Littleton.

3This case was paired for oral argument with A.C. Docket
No. 24-P-923 (MacDonald vs. Department of Environmental
Protection), also released today.
environmentally damaging practicable alternative were supported

by substantial evidence and were neither arbitrary nor

capricious. We also conclude that the commission's finding that

the wetlands delineations, reviewed and approved by its own

wetlands specialist, were accurate was not an abuse of

discretion. Finally, concluding that the commission's issuance

of an amended OOC that decreased the environmental impact of the

project was proper, we affirm.

1. Standard of review. Where a local conservation

commission grants an OOC under local bylaws and regulations,

abutters "who can establish that they suffered injury to a

protected legal interest" may request certiorari review.

Friedman v. Conservation Comm'n of Edgartown, 62 Mass. App. Ct.

539, 543 (2004). "In an action in the nature of certiorari

challenging a wetlands permit decision made by a conservation

commission pursuant to a local by-law, our review is limited at

most to whether the commission's decision is supported by

substantial evidence in the administrative record, whether the

commission's action was 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). "Substantial evidence [is] such

evidence as a reasonable mind might accept as adequate to

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

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

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

Under the substantial evidence standard, a court "may not

displace an agency's deliberative choice between two fairly

conflicting views of the record evidence." McGovern v. State

Ethics Comm'n, 96 Mass. App. Ct. 221, 231 (2019).

"The court 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. Accord Flint v. Commissioner of Pub.

Welfare, 412 Mass. 416, 420 (1992). Where, as here, the

Superior Court judge decided the certiorari actions on the

pleadings, we review that decision de novo. See Boston Clear

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

2. Driveway expansion and improvement. a. Regulatory

standard. Absent a waiver, the town of Littleton prohibits work

within fifty feet of wetlands resource areas. Town of Littleton

bylaws (bylaws) § 171-1(D) (2013); Town of Littleton Wetland

Protections Regulations (regulations) § 4.2(2)(a) (2016). "No

activities or work is permitted other than passive (foot or non-

motorized vehicle) passage and removal of invasive vegetation,"

and "the area should remain unchanged from its pre-project

state." Regulations § 4.2(2)(a). The commission may grant a

waiver from this prohibition when the commission determines that

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such waiver is "in the public interest, necessary to avoid a

taking, necessary to prevent a safety hazard, or water

dependent," is "consistent with the intent and purpose of

[bylaws § 171]," and is "the least environmentally damaging

practicable alternative." Regulations § 1.4.

Here, although the bulk of the proposed work is outside the

protected area, the project would expand and make improvements

to an existing driveway within the protected area so that

construction and emergency vehicles could access the property

and the residence. The commission found that a waiver was in

the public interest, consistent with the intent and purpose of

the bylaws, and the least environmentally damaging practicable

alternative.

b. Public interest. The regulations do not define "public

interest."4 Regulations § 1.4. The commission found the waiver

within the public interest "to get access entirely on the

owner's property, and off adjacent lots." As it stands, Kazokas

is using her neighbors' property to access her own. The

commission also, and more crucially, credited the fire chief's

analysis that "the current driveway is substandard" and that,

"depending on the fire," the fire department may need to use

4 Regulations § 1.4 unambiguously enumerates four separate
bases upon which the commission may rely when granting a waiver.
Accordingly, an action that is "in the public interest" does not
also have to be "necessary to prevent a safety hazard."

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both the driveway from Cottage Street and the proposed improved

driveway from Shagbark Drive to fight a fire.

At a public commission hearing on July 24, 2017, the fire

chief supported Kazokas's plan to upgrade the driveway to gravel

with a minimum width of twelve feet. The chief stated that the

department "would need the 12 [feet] to safely -- actually, have

a decent access all the way down to the bottom." Although the

fire department has smaller trucks, "when a house is on fire,

you are getting . . . the appropriate vehicle that you need

. . . it's the difference of a vehicle pumping 1,500 gallons a

minute compared to 400 or 500 gallons a minute." The department

"would probably use both routes," and, if unable to get enough

water from the pond, then "would need both driveways." The

commission was entitled to credit the chief's testimony that

"any of the improvements down there . . . benefit everybody."

Where Kazokas's plans would expand the use of a forested

property by transitioning a seasonal cottage into a four-bedroom

home, the commission could reasonably find that the public

interest is served by improved firefighting access.

c. Least environmentally damaging practicable alternative.

Regulations § 1.4 requires that a waiver be granted only if it

is the least environmentally damaging practicable alternative.

The plaintiff argues that the least environmentally damaging

alternative exists in continued use of Cottage Way without

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expanding the driveway off Shagbark Drive. The commission

found, though, "that access from just Cottage Way would not be a

preferred alternative" and that Kazokas's "proposed improvement

. . . would be the minimum acceptable." The commission

considered whether Kazokas could alternatively widen the other

side of the driveway, away from the wetlands, but concluded

"that would mean ledge removal and more tree cutting." Based on

the evidence before it, the commission reasonably concluded that

"[i]mprovements to the access road have been minimized as much

as possible, and the owner has taken great care to avoid tree

removal or other disturbances." See Comtois v. State Ethics

Comm'n, 102 Mass. App. Ct. 424, 427 (2023), quoting McGovern, 96

Mass. App. Ct at 227 ("A reviewing court may not make a de novo

determination of the facts, make different credibility choices,

or draw different inferences from the facts as found by the

commission").

3. Wetlands delineation. The town requires delineation of

wetlands in making its waiver determinations. Specifically,

resources must "be marked in the field with numbered flagging

tape, which will correspond to the Areas Subject to Protection

numerically indicated on the Plans. All other Areas Subject to

Protection within 100 feet of the edge of Activity shall be

shown on the plans." Regulations § 2.4(3).

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Flags delineating the wetlands on the property were first

planted by Acton Survey and Engineering in 2014. In 2017, the

commission sent a group of commissioners, including its

conservation coordinator, on a site walk "to review existing

conditions and proposed work." The commission found no

inaccuracies in the delineation of the wetlands. "Most of the

old wetland flags were still present and delineation appeared

correct." When asked by the commission whether she noticed any

discrepancies in the delineation, the conservation coordinator,

who is a wetlands specialist, responded, "No. We walked that

piece of the line . . . and it looked fine to me." The

commission reasonably accepted the existing delineation as

confirmed by its wetlands specialist and thus rejected the

plaintiffs' request for a third-party wetlands consultant. See

bylaws § 171-3(D); regulations § 2.4.

In 2018, during the plaintiffs' challenge before the State

Department of Environmental Protection (DEP), Kazokas prepared

an updated delineation, which was confirmed by the DEP.

Although these matters are important to the paired case

reviewing the decision of the DEP, none of this information was

before the commission when it issued the OOC and therefore these

matters are not properly before us in reviewing the propriety of

that decision. See G. L. c. 30A, § 14 (5) (review by a court

"shall be confined to the record"); RK&E Corp. v. Alcoholic

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Beverage Control Comm'n, 97 Mass. App. Ct. 337, 340 (2020)

("Pursuant to G. L. c. 30A, § 14 [5], our review is confined to

the administrative record. We do not substitute our judgment

for that of the [agency]"); Secretary of Admin. & Fin. v.

Commonwealth Employment Relations Bd., 74 Mass. App. Ct. 91, 95

(2009) ("Review pursuant to G. L. c. 30A is not the time to

insert new issues into the case, especially those requiring

statutory interpretation best left to the commission's expertise

in the first instance").

4. Amendment to the OOC. Where, as here, the project

changes after the issuance of an OOC, the commission may require

the applicant to obtain a new OOC. In the alternative, the

commission has the discretion to amend its original OOC where

"the requested change . . . is of a relatively minor nature."

Regulations § 3.3(2). In making this decision, the commission

"will consider such factors as whether the purpose of the

project has changed, whether the scope of the project has

increased, whether the project meets relevant performance

standards, and whether the potential for adverse impacts to the

protected statutory interests will be increased." Regulations

§ 3.3(2). "Relatively minor changes which result in the same or

decreased impact . . . are appropriate for amendments."

Regulations § 3.3(2). Contrary to the plaintiff's contention,

the regulations establish that, where the scope of the project

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and any potential impacts on the wetlands have decreased, an

amendment, rather than a new notice of intent, is appropriate.

In 2020, and following the DEP's decision, Kazokas returned

to the commission with a modified plan for the cottage and the

septic tank and pump chamber. The modification reduced the

environmental impact by bringing the construction further from

the wetlands. Even considering, as the plaintiff requests, the

"project as a whole," the modification altered neither the

purpose nor scope of Kazokas's project. The modification

offered an overall less impactful plan than that approved in the

original OOC. Accordingly, the commission properly amended the

OOC.

Judgment affirmed.

By the Court (Neyman,
Ditkoff & Englander, JJ.5),

Clerk

Entered: December 30, 2025.

5 The panelists are listed in order of seniority.

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