-: SJC one three zero five eight,
count of Norton V Annabella Pisa and others.
-: Okay. Attorney Weisheit.
-: Thank you.
Good morning Madam Chief Justice, Justices,
brother counsel, may it please the court.
Alex Weisheit from KP law
on behalf of the appellant town of Norton
conservation commission.
It is an honor to stand
before you today to advocate on behalf
of a cause in which I believe strongly.
And that is the preservation and protection
of the Commonwealth's wetland resource areas
and the authority of local conservation commissions to
protect such resource areas.
And the public values created by such resource areas.
My argument today will focus
on three principle reasons why this court
should reverse the judgment that was entered
by the Bristol County superior court
which dismissed the commission's complaint
seeking injunctive relief, compelling compliance
with the enforcement order issued by the commission
which would require the defendants to
remove approximately 13,000 square feet of fill material
which was unlawfully placed
in wetland resource areas on the defendant's property
at 162 West main street in the town
of Norton prior to their purchase of the property.
As an initial matter, the superior court erred
in entertaining substantive arguments
attacking the validity of the commission's enforcement order
because the defendants failed to exhaust their
administrative remedies
by filing a timely certiorari appeal
of the enforcement order pursuant
to general law chapter 249, section four.
However, regardless of this argument
I would move on to address the substantive merits
of the court's interpretation
of paragraph 30 of the Wetland Protection Act.
-: I think as your initial point
talking about the importance of protecting wetlands,
and certainly it is, we have a statute of limitations
as it relates to continuing violations that never go away.
And I think with,
I'm not sure I agree with it quite frankly,
but I think what Judge McGuire was doing with saying
that if we're going to have continuing violations
for the statute of repose to mean anything
we have to say it's limited to the first transfer.
I think that's really the core of what he's trying to say
in order for it to be implemented.
What's your response to that?
-: Agreed your honor.
And I would respectfully disagree with that interpretation
because in looking at the plain language of paragraph 30
the paragraph provision references
not only the transfer of the property, but it also refers
to what type of violation you're dealing with.
So not only is it, I would argue that we're doing, yes
it's a statute of repose in the sense
that the transfer of the property may trigger the protection
and the time bar associated.
However, you also need to look at what type
of violation you're dealing with because other provisions
in the Act, particularly paragraph 32 reference leaving
filling place as an ongoing violation.
-: And also I know
that the defendants argue differently, but
isn't there an issue about how the legislation was initially
proposed that specifically said that it was
for the first transfer and that didn't pass.
-: Yes, your honor.
So I agree.
The legislative history here is very important
for this court's review.
In 1975, paragraph 30 of the Act was enacted
in a bill that was entitled,
the bill was entitled An Act Relative to the Enforcement
of Violations of the Wetlands Law Against Subsequent Owners
of Real Property.
And the use of plural there in the title, I think is
important because we're not talking about just
the initial transfer.
We're talking about all subsequent owners and moreover
your honor, the alternative bill that was rejected
by the legislature in 1975 rejected language that would,
in my opinion, have been more consistent
with the superior court's decision here.
And that language would have limited the application
to the first person to acquire the property.
And instead the legislature chose to apply language
saying any person whose purchases are inherited,
not simply the first.
-: The defendants make a good point though
when they say, well, the bottom line of all
this is the wrongdoer is free after three years.
They put the fill on and left it there.
And then you got some innocent person who's just
buying the property.
They didn't cause the problem.
And there you go, they're available to
have an enforcement action.
And that doesn't seem quite right.
-: Respectfully, your honor,
I would not agree that the purchasers here were innocent.
In fact, they were well aware
of the violation before they purchased.
-: Yeah, you've got a good point on the facts here.
I understand what happened.
-: Is the original wrongdoer off the hook
or as the, only the first, the first purchaser,
the purchaser is off the hook after three years.
But is the original wrongdoer who doesn't sell the land ever
off the hook?
-: Well, your honor,
the original wrongdoer here is deceased.
-: No, I'm talking about the way the statute works.
If you don't sell the property, you don't have protections
on the statute of repose, right?
You're still liable.
What happens is when we deal
with the purchasers of the property, then they
can get a three-year protection, right?
But the original wrongdoer,
the guy who put the fill in, if they're
still alive and they still own the property
they have the problem forever.
Right?
-: Absolutely, your honor.
That's correct.
And I think that gets to one of our main points as well
which is the interpretation
that the superior court has offered would leave
a hole here in the statute in
that a developer could conceivably buy a piece of property,
fill in a wetland, transfer the property
to a different entity, that entity could then
wait three years
and the entity would be absolved of any liability.
-: Can you help me?
I'm sorry.
Are you done, Justice Kafker?
-: No go ahead, Justice Gaziano.
-: Thank you.
Can you help me with the dividing line
between one time violations and continuing violations?
Here I think it's fairly clear
because we have a clear cut vegetation.
So one time and the fill is ongoing.
-: [Attorney Weisheit] Correct.
-: But given the fragility of wetlands,
something you opened with,
aren't a lot of violations going to be ongoing?
So for example,
if I build a shed that encroaches too close to wetlands
it's a violation when I build it, but it's a, does it,
is it an ongoing violation past that?
So how do we define that in our case law?
-: That's a good question.
Thank you, your honor.
I would agree that there is a dividing line here
and the case law references leaving fill
in place specifically as an ongoing violation.
Justice Gaziano: Right.
-: Because of the harm that it causes going forward.
I think as an initial matter, it's
up to the local commission in the first instance
to make a determination as to how the harm,
whether the activity
or alteration is a harm that can be remediated on its own
or does there need to be some type
of work that's ordered to deal with the ongoing impact.
-: Right so, and here the example is fairly clear,
but how do we define that when we write the case?
-: Your honor, I would ask that you leave that
to the commission to determine in their discretion
as to...
-: Shall we say that here there's a one-time violation?
And then there's a continuing violation
and it's case by case.
-: Yes, your honor.
I think it's best to leave it to the commission
in the first instance to determine what the violation is,
what the impacts are that will result from that violation,
and what the best way to remediate that violation is.
-: [Justice Wendlandt] What does that mean?
Justice Gaziano: And perhaps the AG can weigh
in on that as well. -: Yes.
Justice Gaziano: Thank you.
-: Just to ask you a follow up question to Justice
Gaziano's question, does that mean that the commission
can determine that this vegetation issue
in this case is an ongoing violation?
Or has that statute of limitations run?
-: Your honor, I believe that the statute
of limitations would not have run
because of the discovery rule.
The commission did not actually learn
of this violation until the Pisa's came
to the commission after doing their due diligence.
And the conservation agent went
to the property and realized that there was clear cutting.
So the two years would have run
I think when the commission
through its agent first learned of the violation.
-: And is that the discovery rule that's applicable,
it's not should have known, but could actually did know?
-: [Attorney Weisheit] Yes, your honor.
-: And why is that?
-: Because there's the scheme that's set forth here
in particular to this case, when you have an order
of conditions it's recorded against the property
that allows a certain project to go forward.
-: It's not until the applicant asks for a final...
-: Certificate of compliance that then
triggers the conservation agent to go look at the property
and determine whether or not there was compliance.
Here the agent did that and noticed
that there was an excessive amount
of fill beyond the limits of what was allowed
of the permit and that, I think, gets to the
one of the overall arguments you make as well
about the goal of finality.
Here, the goal of finality is only achieved by compliance
with the commissions and first enforcement order
and bringing the property to compliance
with the order that was recorded in the registry.
That order will never be released with a certificate
of compliance until the property is brought
into compliance with the order of conditions.
-: Okay.
Does anyone have any further questions?
Okay, thank you.
-: [Attorney Weisheit] Thank you Madam Chief Justice.
Thank you all.
-: Okay.
Attorney Frankel.
-: Thank you.
(clearing throat)
Good morning, your honors.
And may it please the court, David Frankel
on behalf of the Commonwealth.
To strike a balance
between the rights of long-term owners
on the one hand and the rights of the public
on the other hand in functioning, healthy wetlands,
the legislature enacted a time bar whose sole
effect is to create a three-year window
in which to sue any new owner who acquires property
with preexisting wetlands violations.
And that window runs from that owner's date of acquisition.
First I'll just start with the plain text
which is dispositive here
under the act such person is entitled to freedom from sue
if three years have passed
since the property was acquired by such person.
In using this such person phrase twice to
specify the individual entitled to repose, and also
the individual whose property acquisition
triggers the clock,
the statute is susceptible to a single meaning.
And that's that a particular owner's right to
repose is triggered by the date
of that particular owner's acquisition of property.
-: Mr. Frankel, the defendant argues just the opposite.
He says that since the statute
doesn't say it renews with every transfer
they come up with a different plain meaning argument.
-: So first that interpretation is inconsistent
with the such person twice repeated language in the statute.
But even if there was any doubt on that score
the legislative history here is crystal clear.
So the legislature twice
rejected broader protections from suit.
In 1974, the legislature declined to
advance a bill that would have provided
a universal right to repose running
from the date of the illegal work
and the legislature again in 1975,
before it enacted the bill with this language,
explicitly considered and rejected a bill that would have
granted repose to all owners three years from the date
of the first transfer.
And so the defendants in this case are trying to
avail themselves of essentially that statute
that the legislature declined to enact
and accepting that argument replaces
the bill that the legislature did in fact enact
with one that it declined to.
-: Is the defendant wrong that their interpretation
of the statute of repose is consistent
with DEP's regulatory interpretation of the statute
and regulations?
-: No, that's incorrect.
And even the documents they cite,
the guidance documents from DEP,
DEP has maintained this interpretation
historically and maintains this interpretation currently.
There is one case they cite, the Veeder case
that goes into this a little bit on, on which I
think the defendants rely.
And that case is actually
just a strange case that takes a position
that no one agrees with
in which the statute of repose runs through your snare date
of an enforcement order.
That is an odd case in a different context
and no party here, defendant, plaintiff,
or the Commonwealth thinks
that is the correct approach here.
I mean, I'd also come back to
-: It's a little odd, you know,
and I thought your brief was excellent
sort of explaining the history and the language.
It is a little strange that we have a statute of repose.
It really doesn't provide any repose.
It provides sort of an individual repose
but it doesn't do much.
Right?
-: Yeah.
So, I'll acknowledge
that this is a somewhat unusual statutory scheme
but fundamentally I think the important question
is not so much, which bucket this time bar fits into
whether it's a statute of repose
whether it's a statute of limitations
but fundamentally the question is what was
the legislature trying to do when it enacted this language?
And here we have...
-: And that goes to my question, counsel,
which is what best protects the land?
What interpretation best protects the land?
-: Our interpretation, your honor
is the one that best protects the land here.
-: I mean, to a certain extent, that's true, but I mean,
if you never sell,
if you sell the land to one person, the first buyer Mrs.
Pisa, whatever her name was, she, three years from now
if she doesn't sell it
that land can never have to be remediated, right?
It's not, the legislature
didn't adopt the most protective version,
the greenest version here.
They sort of did a compromise.
The conveyancers wanted to clean up title,
the environmental people wanted to clean
up the wetlands, and the legislature sort of
created a clever compromise that requires clean
up after sales.
Right?
-: Yes, that's true.
I would entirely agree
that what the statute does is it reflects a compromise
between a different set of competing interests.
I mean, on the one hand
the Act's fundamental purpose is preserving
and restoring wetlands.
And the Act accommodates that by ensuring
that unlawfully destroyed wetlands are not forever taken
out of the Commonwealth's ability to correct and restore.
But the legislature did recognize
that certain long-term owners are going to
have some interest in their property,
some settled expectations and the statute does...
-: Every long-term owner, except for the original,
except for the original bad doer,
every long-term owner will have protection
after three years, right?
Every purchaser.
-: [Attorney Frankel] That's correct.
-: So, I mean, it's clever what they did,
but it's not the greenest approach.
It's a compromise.
-: No, that's right.
I mean, it is a middle ground.
I mean, there could be no statute of repose at all
which in fact would be more consistent with the wealth
of environmental remediation statutes that are out there.
If there is hazardous waste on your property
your obligation as the current owner
of the property is to remediate that no matter
how old it is.
And so what this statute does is it affords actually
additional protections for long-term owners
that are not typical in most environmental statutes
and accommodates the interests.
And there's certainly, the legislature could have
gone further and had ongoing violations
not be subject to the statute of repose at all.
That's certainly one thing they could have done.
They could have, as enacted
the Wetlands Protection Act didn't include any type
of protection at all.
And so they do go some way away
from the most possible protective approach here.
-: Can you answer the question about defining ongoing
versus one-time violations, how we're supposed to do that?
-: Yeah, so our view on that, your honor would be that
in any circumstance where there is a violation
that has some continuing effect
that it would be an ongoing violation.
So fill in place would be an obvious one.
In this case, the record...
-: Doesn't clear cut and vegetation
have an ongoing effect too?
-: Well, I think that really is a factual question.
And so in this case, there's no evidence
that clearing of vegetation, that it didn't grow back to
go back into its natural form.
But if vegetation was cleared, I mean
if there was a swath of wetlands that was cut
down and replaced with a lawn, I mean
that would be an example of an ongoing violation subject
to the same rules that we talk about here.
-: Is there no regulations that provide guidance on this?
We're just going to leave this
to the commission to sort of sort out
that there isn't a regulatory explanation
of what's an ongoing and what's a one-timer?
-: Well, what I'll say to that is the statute talks
about restoring property to its original.
-: Your example was I mow down the wildflowers
with my John Deere and then, you know, three months later
they grow back.
That's well and good.
But suppose they don't grow back.
So we're going to have the vagaries
of whether they grow back to be an ongoing
versus a one-time violation?
-: I wouldn't say it's the vagaries,
but in some sense that is correct.
I mean, the statute,
I turn to the statutory language here
because the statute talks in several places
about the original condition of the properties.
The statute itself gives
the guidance on the score, which is,
did whatever action occurred
change the property from its original condition?
And has it reverted to its original condition?
Or is there some ongoing effect?
And if the latter
then you have the type of ongoing violation that's subject
to the restoration remedy, and
that subsequent owners would be responsible to correct
assuming that the statute of repose hasn't been triggered.
-: [Chief Justice Budd] Okay, thank you.
-: Thank you.
-: Attorney Nagel.
-: Thank you, Chief Justice Budd
and good morning Justices.
May it please the court.
Paragraph 30 is a statute of repose, not a limitation.
And there's three reasons for that.
One is the language creates an absolute bar
to liability after three years.
Secondly, it runs from the transfer
of the property rather than when the cause of action arises.
And thirdly,
the Wetlands Protection Act already has a statute
of limitations under section 91,
and that's a two year statute.
-: Mr. Nagel, all
of those arguments may be right and you may win.
I do not understand your position that the position
in the town and the Attorney General's position is frivolous
and you should receive costs
and fees considering I'm not going to list everything.
The title of the statute,
the intent of the Wetlands Act,
the nature of the ongoing violation,
the safe harbor and
a multiplicity of other reasons you may win.
I don't know, but how you can say
that the position of the AG in the town here is frivolous
and you should receive costs.
I just don't understand that.
-: Yes.
I think one of the,
I agree that the Commonwealth's brief is excellent.
But one thing that I think I'd like to point
out about it, this statute, like many
of the statutes that the Attorney General's office points
out are remedial strict liability statutes.
This really isn't, except for this paragraph 30,
this statute is a causation statute.
It begins by saying any person who alters wetland.
So it's causation.
The one exception is paragraph 30
where it says that an innocent purchaser is liable
even if they had nothing to do with it.
And so in 1975, they amended that provision to say, well
wait a minute, these innocent purchasers
we're going to give them three years
to clean up the alteration that was performed
by a prior owner,
but after three years. -: Then why is it unreasonable?
Counsel, why is it unreasonable to read the statute
to give these quote innocent owners three years each?
-: Because it results in, your honor,
it results in an absurd result where every three
years the liability springs up again.
So we have a situation where, -: No, it springs
up with every purchase or inheritance.
So not every three years,
it's every time the property turns over
there's a three-year window where the commission
gets another bite at the apple.
Why is that unreasonable?
-: Because it goes
against the whole nature of statute of repose.
-: Well, it definitely is a unique statute
of repose, I'll grant you that, but
why wouldn't that be consistent with the intent
of the statute to overall protect the wetlands?
-: Because the overwhelming majority
of enforcement cases, you know, most
of the statute addresses the regulatory process
of getting a permit to do work in wetlands.
With regard to enforcement,
most enforcement is done when somebody alters wetlands,
when a current landowner alters wetlands.
If they alter wetlands without
an order of conditions or permit, then enforcement ensues
or if they alter, if they don't comply
with the order of conditions then enforcement ensues.
Very rarely, if ever, does the Commonwealth
or the commission go after
an innocent land owner for violations
done by somebody long ago. -: But you say...
Excuse me to cut you off.
But when you say innocent land owner
isn't this a cloud on title?
Isn't that how the Pisa's learned about this?
They did her title search.
They learned, oh, wait, there was no final order here.
Let's see why.
So when they bought the land
they were on notice that this was a problem
with the land that it had never been closed out.
Why is that?
Why is it unreasonable
given the notice that they had prior
to the purchase to read the statute
in the way that the AG would like us to read it?
-: Well, I mean, the statute says what it says
and the statute says that for a subsequent owner
they have liability for three years.
Then that liability is cut off.
And...
-: Right but I guess you're missing my point.
Why isn't it the next subsequent
owner also have a three-year window?
-: I'm sorry?
-: Why is it unreasonable to
give the next subsequent owner another three-year window?
-: Because you can have a situation where a subsequent owner
or you can have a situation where an owner
owns the property.
The property is transferred.
They own it for more than three years.
Their liability goes away.
And then they sell that property to somebody else.
The purchaser acquires liability
that the prior owner didn't have.
That just doesn't make sense.
And the idea is to make sense
of a statutory provision and
to the extent that there's any ambiguity
-: I know but it's a strange
Attorney Nagel: Obviously we're
talking about ambiguity.
-: It's a strange compromise though.
It's, there's nothing about privity in this statute.
It's an odd statute of repose,
but there's a clear desire not to let anyone off the hook
at least for three years.
I don't find it that
hard to figure out what the legislature was intending here.
They didn't do what you wanted, which was give clear title.
They rejected that statute.
They passed this statute, which basically prevents, you know
profiting off of not cleaning
up the fill in certain ways and means.
-: Right, right.
And the original provision before 1975 said
that when the property transfers, there's
liability forever, but in 1975 they passed this amendment
that said that, wait a minute, we're going to
put a three year time limit on that liability.
And it didn't say it's gonna recur.
-: Justice Kafker, Justice Kafker,
Justice, I know it's hard to find us.
I apologize.
Attorney Nagel: I'm sorry.
-: Justice Kafker points out though, that the legislature
rejected application only to the first transfer of property.
And instead what they say is any person who purchased,
inherits, or otherwise acquires real estate.
-: Right, right.
There's no legislative history that actually explains why
that language did not see its way to final passage.
But if anything, we can explain it through grammatical
consistency that such party and such person, as opposed
to the language that was in house bill 655.
And when there is that ambiguity.
So, I mean the legislative history doesn't say why
that was changed.
So all we're left with is the language that's in
the statute and the language in the statute
does not say recurring liability.
-: Counsel, could I go just back to
Justice Wendlandt's point
because I'm still struggling
with this and I'd like you to tell me why
it doesn't make sense to continue with another three years
for any subsequent person who acquires this land
and it fits with what happened here.
If you are in the position where,
let's say the original owner who was
on the hook for three years, it's now year five.
And the current record title owner has no liability
under the statute.
And then they transfer out, like in this case.
And your point was, it doesn't make sense that
you're getting something more than the owner has,
which is the liability.
Why doesn't it?
Because just like in this case,
the subsequent purchaser has to do their due diligence
and they might find out what your clients found out.
And then they have an opportunity to enter
into that transaction
with eyes wide open that there's this issue
and if you are buying, you are buying at risk.
Why doesn't that make sense?
Because they can walk away.
And then you achieve the purposes of the statute
in the sense that the owner who now is perhaps outside
of the statute of limitations has a real Hobson's choice.
If I ever want to unload this property, I got to fix this.
Whether I've got a statute
of limitations or not, because I'm never going to
be able to transfer it because they're always
going to run when they find this issue.
Why doesn't that make sense?
-: Well, what does make sense,
and part of what you said, I think does resonate in
that if there's an owner that has, that actually
altered the wetlands illegally and then transfers it
they know that that transfer is subject
to the due diligence of the purchaser.
And they're going to find out that there's an alteration
and that new owner is going to have liability
but the statute says, oh for only three years.
And so what doesn't make sense is
after that due diligence and the purchaser can
either decide to acquire or not, or negotiate to make sure
that the, just like in the title five,
to get the septic system fixed,
to get the wetlands fixed before the purchase.
But regardless when that transfer happens
that new owner has liability.
And that makes sense.
And in 1975, they said, well wait a minute.
That really is a problem with transfers,
multiple transfers of properties over long periods of time.
And they put a three year limit on that.
So what really doesn't make sense when
you go forward transfer after transfer is you
can have an ancient violation that memories fade,
people pass away, documents are lost,
and decades later you'll have a innocent purchaser
who acquires property where there's a violation,
and they had no idea that there was a violation there.
-: The problem is we also have a wetlands violation and
you know, wetlands are important environmentally
and we want them cleaned up and under your approach
there's absolutely no incentive by it for anyone to do so.
And it's hard to imagine that that's what the legislature
intended to let everyone off the hook going forever
and ever as opposed to, okay,
DEP has to get, or the conservation commission has to
get its act together within three years for each purchaser
or we move on to the next person.
But your approach just is very damaging environmentally and
that's what the conveyancers want, but
that doesn't seem to be with the legislature did.
-: Well, I don't mean to repeat myself
but in terms of environmental damage
and I understand the Commonwealth's point here is
that obviously the Wetlands Act is to protect the wetlands
but the overwhelming majority of cases in which
-: By the way, I find that statement totally unfounded,
that DEP only goes, you know, they,
everyone goes away after the initial person
doesn't do the cleanup.
They're monitoring and as soon as they learn
something's out of compliance, they're unhappy.
What basis do you have for saying that
in the overwhelming majority of cases, is there anything
in the record that supports that statement?
-: There's no reported cases that I'm aware of, your honor,
that addresses this very issue of the statute of repose.
And I think there's a reason for that.
-: Not the statute of repose but the issue of whether
DEP and the conservation commissions
when they weren't about it, an old violation just go away.
That's news to me.
-: They do, they, what they learn
about is when there's active alteration of wetlands
and whether that's done in compliance
with an order of conditions or in violation of it.
And when they do find...
-: Can you explain that counsel?
Because I thought I read
in one of the briefs that in fact
they don't continuously monitor these ongoing projects
and they wait until there is a request
for a final approval to come in and inspect the land.
Is that,
Attorney Nagel: Yes.
-: Are you arguing that that's just not true?
What do you?
-: No, I'm not, your honor.
There is a mechanism.
And again, this is more
of a regulatory program rather than a remedial program.
Like a lot of the statutes that were cited
by the Commonwealth, but there is a mechanism
that's called the certificate of compliance.
And that is related to the permit
that's issued to allow people to work
within wetlands under certain conditions.
And it's a three-year permit.
And after those, within those three years
the permittee is required to go back
and request from the conservation commission
the certificate of compliance to ensure
that whatever work was done within wetlands jurisdiction
it was done according to the conditions of the permit.
And so this statute is overwhelmingly a
way to allow people to work
within wetlands jurisdiction provided they do it
in such a way that doesn't harm the wetlands.
What we're talking about here are
ancient violations that were not detected
by the state or by the commissions.
And so what do you do with those ancient violations?
Well, if property is transferred with those ancient
violations, the new owner is, in fact, liable.
The statute said the new owner is liable forever
but the amendment says they're only liable for three years.
And for a statute, that's clearly a statute of repose.
So to have that three-year liability pop
up and then be, and then liability to go away.
And then for it to pop up again, over and over again
where a innocent owner acquires property
and acquires liability that wasn't held
by the seller just doesn't make sense.
And to interpret this provision
in a way that doesn't make sense is, I would
suggest is not the proper interpretation of the statute.
-: [Chief Justice Budd] Okay, thank you very much.
-: Thank you.