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Zizza v. Falmouth Conservation Commission

Superior Court of Massachusetts, Barnstable

May 30, 2019



          Mark C. Gildea, Justice

         John 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.


         Zizza 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.

         Zizza’s 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.

         The 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.

         Zizza 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 DEP’s superseding order of conditions will control the Project. Count II of the complaint seeks review in the nature of certiorari of the Commission’s decision.

         The 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 Commission’s decision was issued by the statutory deadline. The Court took no action at that time on the cross motions for judgment on the pleadings.

         The 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 Commission’s 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 Commission’s Administrative Assistant, Courtney Tazziz, prepared two mailings of the Order of Conditions. She placed the original Order of Conditions in an envelope addressed to Zizza’s 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.

         In the 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, 2017.

         Zizza 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 Zizza’s 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 Zizza’s son, Michael, for review.

         On 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.


         The WPA "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. Conservation ...

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