JOSEPH SIEBER & Others v. CONSERVATION COMMISSION OF EDGARTOWN.

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-515

JOSEPH SIEBER & others1

vs.

CONSERVATION COMMISSION OF EDGARTOWN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs (trustees) are the owners of land abutting

the property at 31 Edgartown Bay Road in Edgartown (property).

They appeal from the dismissal of their challenge, through an

action in the nature of certiorari in the Land Court, to an

order of conditions issued by the Edgartown Conservation

Commission (commission) relative to the property. See G. L.

1Jodi Landau; Brian Carty, Susan Rapoport, and James
Rapoport as trustees of the Brian T. Carty Family Trust (as
successor in interest to the Brian T. Carty Qualified Personal
Resident Trust, dated February 25, 2010); and Mary Carty, Susan
Rapoport, and James Rapoport as trustees of the Mary V. Carty
Family Trust (as successor in interest to the Mary V. Carty
Qualified Personal Residence Trust, dated February 25, 2010).
c. 249, § 4. The judge designated to hear the case2 dismissed

the trustees' action for lack of standing. See Mass. R. Civ. P.

12 (b) (1), 365 Mass. 754 (1974). We affirm the judgment of

dismissal, although on different grounds. See Adoption of

Franklin, 99 Mass. App. Ct. 787, 802 (2021). Assuming without

deciding that the trustees have standing, we conclude that their

complaint fails to state a cause of action on which relief might

reasonably be granted. See rule 12 (b) (6).

1. Background. We summarize the factual allegations in

the trustees' complaint, accepting them as true, and also draw

from the administrative record that was incorporated by

reference in that complaint. See Iannacchino v. Ford Motor Co.,

451 Mass. 623, 636 (2008); Marram v. Kobrick Offshore Fund,

Ltd., 442 Mass. 43, 45 n.4 (2004).

In April 2022, the owners of the property (the Karps) filed

a notice of intent to build a home on it.3 In May and June 2022,

the commission held three public hearings on the Karps' project;

several of the trustees appeared at one or more of these

2 At the parties' request, and for reasons we need not
detail here, the Chief Justice of the Trial Court transferred
the original Land Court action to the Superior Court, designated
a judge of the Superior Court to sit as a justice of the Land
Court, and assigned the case to that judge.

3 The proposal also included the construction of a garage, a
barn, a pool, and a pickleball court, as well as "landscaping
[and] related site activities."

2
hearings. As relevant to this appeal, those trustees raised

concerns that the project violated the Edgartown wetlands

protection bylaw (bylaw) because it interfered with "natural and

historic views and vistas."4 One of the trustees, Joseph Sieber,

also proposed that the commission qualify any order of

conditions for the project by, as relevant here, limiting the

height and placement of certain shrubs and trees on the

property, and requiring certain areas of the property to be

maintained as "heathland and grassland."

The commission decided to "focus[] solely on the risk of

harm to views of the shoreline from the open water," and to

protect "the historic and public view/vista from the water."

Prompted by the commission's conservation agent, the commission

declined a trustee's suggestion that the commission seek legal

advice about whether the view from the land to the water should

also be protected under the bylaw.

4 The bylaw provides, in relevant part, as follows:

"The intent of this bylaw is to protect the wetlands
of the town of Edgartown by controlling activities
deemed to have a significant effect upon wetlands and
water quality values, including but not limited to the
following: public or private water supply,
groundwater, flood control, erosion control, storm
damage prevention, fisheries, shellfish, wildlife and
their habitats, recreation and preservation of natural
and historic views and vistas."

3
On July 8, 2022, the commission issued a notice of

conditions for the Karps' project, documenting its approval of

the project without any specific requirements for the

preservation of "historic views and vistas." The trustees filed

the present action, the Karps successfully moved to dismiss the

trustees' complaint, and the trustees filed this appeal.

2. Discussion. a. Standing. "To demonstrate standing to

bring a certiorari action to challenge the wetlands approval

issued by the commission, the [plaintiffs] must 'make[ ] a

requisite showing of a reasonable likelihood that [they have]

suffered injury to a protected legal right.'" Hickey v.

Conservation Comm'n of Dennis, 93 Mass. App. Ct. 655, 657

(2018), quoting Higby/Fulton Vineyard, LLC v. Board of Health of

Tisbury, 70 Mass. App. Ct. 848, 850 (2007). In this context,

abutters do not enjoy presumptive standing. See Hickey, supra.

Here, the judge concluded that the trustees' claims that

the Karps' project would negatively impact the views of Katama

Bay from their respective properties was within the scope of the

bylaw. The judge was not persuaded that the trustees had shown

that the harm they claimed was particularized to them, however.

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

Ct. 539, 545 (2004). Because that showing was a prerequisite to

the trustees' standing, the judge dismissed their complaint

under rule 12 (b) (1). See id.

4
We need not resolve the trustees' challenge to the judge's

determination on this issue because, as we discuss infra, the

trustees have failed to allege a viable claim for vacating the

commission's decision to issue the order of conditions. See

Delapa v. Conservation Comm'n of Falmouth, 93 Mass. App. Ct.

729, 733-734 (2018). Therefore, even assuming the trustees'

standing to seek certiorari review, their complaint fails. See

Adoption of Franklin, 99 Mass. App. Ct. at 802, quoting Gabbidon

v. King, 414 Mass. 685, 686 (1993) (appellate court may affirm

on "any ground apparent on the record that supports the result

reached in the [trial] court").

b. Merits. Because the judge determined that the trustees

lacked standing to bring this action, he did not reach the

Karps' alternative argument, briefed before us by both parties,

that the complaint should be dismissed under rule 12 (b) (6) for

failure to state a claim. Exercising our discretion to consider

that claim ourselves, see Feeney v. Dell, Inc., 454 Mass. 192,

211 (2009), and applying the same standard that the judge would

have used, see Brooks v. Department of Correction, 99 Mass. App.

Ct. 345, 346 (2021), we conclude that the trustees' allegations

fail to plausibly suggest an entitlement to relief. See

Iannacchino, 451 Mass. at 636.

"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

5
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, 93 Mass. App. Ct. at 733-734. See Conroy v.

Conservation Comm'n of Lexington, 73 Mass. App. Ct. 552, 558

(2009). In this case, the trustees alleged that the commission

acted arbitrarily and capriciously when it "focused solely on

the risk of harm to views of the shoreline from the open water,"

and not on views of the water from the land.5 Even under the

favorable standard applicable here, however, the trustees'

complaint does not "plausibly suggest[] . . . an entitlement to

relief" on that theory. Iannacchino, 451 Mass. at 636

(quotation and citation omitted).

The bylaw does not require that the commission protect all

natural and historic views and vistas at all costs. Rather,

such views are one of many interests the commission was required

to consider, along with "public or private water supply,

groundwater, flood control, erosion control, storm damage

prevention, fisheries, shellfish, wildlife and their habitats,

[and] recreation." Plainly, these values can be at odds with

5 The trustees also alleged that the order of conditions was
invalid as a matter of law because it was signed by the town's
conservation agent "in lieu of the voting members of the
[c]ommission." In their brief, however, the trustees note that
that issue is not before us.

6
each other. For example, erosion control may require compromise

of views, and vice versa. Accordingly, the bylaw requires only

that the commission "impose such conditions as it determines are

necessary or desirable for the protection of those interests."

The commission's decision, in balancing the various

interests protected by the bylaw, to focus on the views of the

shoreline from the water, was well within the discretion granted

to it by the bylaw. Nothing in the trustees' complaint suggests

that the commission acted arbitrarily in its decision regarding

what conditions were necessary and desirable to balance the

various interests in the bylaw, nor do the trustees provide any

argument concerning the commission's balancing of these

interests.

Moreover, the commission's interpretation of the bylaw as

focusing on the "natural and historic views and vistas" from the

water to the land, and not on those from the land to the water,6

is a reasonable interpretation of the plain language reading of

the bylaw and does not undercut the bylaw's purpose. Indeed,

6 The Karps challenge the accuracy of the trustees'
allegation that this was the commission's interpretation of the
bylaw, and argue that the allegation was based on a
mischaracterization of the conservation agent's comments at one
of the public hearings on the project. At this stage, however,
we accept the well-pleaded factual allegations in the trustees'
complaint as true. See Fairhaven Hous. Auth. v. Commonwealth,
493 Mass. 27, 30 (2023).

7
the commission could reasonably have determined that protecting

the "natural and historic views and vistas" as seen from the

water, rather than as seen from the land, was most consistent

with the other activities specifically controlled under the

terms of the bylaw. Because these considerations are

"rational," the commission's decision was not arbitrary or

capricious.7 Cf. Hercules Chem. Co. v. Department of Envtl.

Protection, 76 Mass. App. Ct. 639, 643 (2010), quoting Cambridge

v. Civil Serv. Comm'n, 43 Mass. App. Ct. 300, 303 (1997)

(agency's decision is arbitrary and capricious where it "lacks

any rational explanation that reasonable persons might

support"). Thus, the trustees' complaint does not state a claim

7 The fact that the bylaw is subject to other reasonable
interpretations does not alter our conclusion. An agency's
choice, "in the discretionary exercise of its expertise, . . .
between two fairly conflicting views," does not amount to an
abuse of discretion. Rodgers v. Conservation Comm'n of
Barnstable, 67 Mass. App. Ct. 200, 204 (2006), quoting
Conservation Comm'n of Falmouth v. Pacheco, 49 Mass. App. Ct.
737, 739-740 n.3 (2000).

8
on which the commission's decision could be vacated or reversed.

See rule 12 (b) (6).

Judgment affirmed.

By the Court (Ditkoff, Hand &
Walsh, JJ.8),

Clerk

Entered: April 3, 2025.

8 The panelists are listed in order of seniority.

9