John R. ZIZZA
FALMOUTH CONSERVATION COMMISSION et al.
FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR
JUDGMENT ON COUNT I OF COMPLAINT
C. Gildea, Justice
Zizza filed this action seeking a declaratory judgment that a
decision of the Falmouth Conservation Commission denying an
Order of Conditions for his proposed boulder relocation
project is without legal effect.
owns a single-family home on an 18, 360-square-foot lot
located at 82 Waterside Drive in North Falmouth which borders
on Buzzards Bay ("the Property"). A 300-foot long
breakwater or boulder field is located in the waters of
Buzzards Bay, approximately 150 to 215 feet offshore from the
Property. This boulder field has existed for approximately 50
years. Zizza wants to relocate six of the boulders
(approximately 25% of the boulder field) in order to create
three channels of navigation. On February 13, 2017, Zizza
filed a Notice of Intent with the Commission seeking a permit
for his boulder relocation project ("the Project")
under the Wetlands Protection Act ("WPA") and the
Falmouth Wetlands Protection Bylaw and Regulations
("Bylaw"). The Commission held public hearings on
March 29 and July 19, 2017.
neighbors, who are direct abutters, opposed the Project,
testified at the hearing, and hired an expert who submitted a
letter in opposition to the Project.
public hearing closed on July 19, 2017. The Commission
deliberated at a public meeting on August 2, 2017 and voted
to deny the Project. The Commission then executed a denial
Order of Conditions.
filed this action on October 5, 2017. Count I of the
complaint seeks a declaratory judgment that because the
Commission did not issue a decision within twenty-one days of
the close of the public hearing, its decision is without
effect and DEPâs superseding order of conditions will control
the Project. Count II of the complaint seeks review in the
nature of certiorari of the Commissionâs decision.
parties filed cross motions for judgment on the pleadings.
Zizza then filed a motion for summary judgment on his
declaratory judgment claim. In a Memorandum of Decision and
Order dated December 26, 2018, this Court denied that motion,
concluding that there remained a factual issue for trial with
respect to whether the Commissionâs decision was issued by
the statutory deadline. The Court took no action at that time
on the cross motions for judgment on the pleadings.
Court held a jury-waived trial on the declaratory judgment
claim on April 16, 2019. The parties submitted an
"Agreed Statement of Fact For Trial On the Issue of
Whether The Commissionâs Decision Was Issued By The Statutory
Deadline" which contains the following facts. Twenty-one
days from the close of the public hearing was August 9, 2017.
The Order of Conditions prepared by the Commission states
that the date of its issuance is August 9, 2017. On August 9,
the Commissionâs Administrative Assistant, Courtney Tazziz,
prepared two mailings of the Order of Conditions. She placed
the original Order of Conditions in an envelope addressed to
Zizzaâs wetlands consultant, LEC Environmental Consultants,
at 12 Resnick Road, Suite 1 in Plymouth, Massachusetts.
Affixed to this envelope was certified mail return receipt
request No. 7009 2250 0004 3140 7642. Tazziz placed a copy of
the Order of Conditions in an envelope addressed to Zizza at
38 Church Street in Winchester, Massachusetts to be mailed by
first class mail. On August 9, Tazziz delivered both
envelopes to the Town Hall receptionist and instructed her
that both envelopes must be mailed that day.
usual course of business, when advised that a mailing must be
completed on the day received, the receptionist adds postage
using a Pitney Bowes U.S. Postage Meter and mails the
envelope by placing it in the United States Postal Service
mail box located outside of Town Hall before the last
scheduled pickup of the day. The envelope addressed to LEC
has metered mail postage of $6.56 in the upper right-hand
corner with a date of August 9, 2017. The top center of this
envelope shows a stamp stating, "RETURNED FOR
POSTAGE" and a handwritten note stating, "Add
$1.15." The additional postage was added on August 17
and the envelope stamped in black ink with the words
"PROVIDENCE, R.I. THU AUG 2017" along with black
ink cancellation bars. The envelope was stamped August 17,
has a part-time administrative assistant, Loretta Fermano,
who helps process his mail. In August of 2017, Fermano worked
on Tuesdays. On Tuesday, August 16, she processed Zizzaâs
mail, which included the envelope from the Commission
containing the Order of Conditions. Fermano placed the
envelope from the Commission in the trash and it cannot be
recovered. She sent the copy of the Order of Conditions to
Zizzaâs son, Michael, for review.
August 23, 2017, Zizza requested that the DEP review the
Project and issue a superseding order of conditions. On March
7, 2019, DEP issued a Superseding Order of Conditions denying
the Project. Zizza has timely appealed and requested an
adjudicatory hearing with DEP.
"sets out in some detail the application process for an
order of conditions, the review process to be followed by a
conservation commission, the time frames in which the
conservation commission must act, and the consequences of a
failure to act in a timely manner." Garrity v.