BARBARA FRIEDFERTIG v. CONSERVATION COMMISSION OF GLOUCESTER (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from a judgment of the Superior Court affirming a 2023 decision of the conservation commission of Gloucester (commission) granting defendants Nancy and Salvatore Vigorito (Vigoritos) an order of conditions (2023 OOC) allowing them to build a second-story addition to their existing single-story home. We agree that the 2023 OOC was properly issued.

Background. “We recite the material, undisputed facts from the record, reserving certain facts for our discussion.” Raftery v. State Bd. of Retirement, 496 Mass. 402, 403 (2025).

The Vigoritos own a single-story, single-family house in Gloucester. The plaintiff owns a house directly adjacent to the Vigoritos’ house.

In 2017, the commission granted the Vigoritos an order of conditions (2017 OOC) permitting work on the roof and several external walls (2017 project). The Vigoritos completed the 2017 project, and the commission subsequently issued a partial certificate of compliance for that project. The certificate approved the newly reconstructed “patio, stairs and walkway, remodel and rehabilitation” of the home, but was only “partial” because the septic system was not yet completed.

In July 2022, the Vigoritos filed a notice of intent with the commission to construct a second-story addition to the home (project or second-story project). The plaintiff objected to the second-story project and, through counsel, appeared at public hearings of the commission and argued that the 2017 project had not been completed in accordance with applicable regulations. On December 22, 2022, the commission issued an order of conditions (2022 OOC) denying the second-story project for insufficient information based, among other things, on the view of two commissioners that work had been done “at the same location on the same structure ․ that was believed to not have conformed to the Plan approved with the [2017 OOC].”² The commission denied the project pursuant to the Massachusetts Wetlands Protection Act (WPA), G. L. c. 131, § 40, and § 12-20 of the Gloucester Wetlands Ordinance (GWO).

The Vigoritos appealed the part of the 2022 OOC under the WPA to the Massachusetts Department of Environmental Protection (MassDEP) in accordance with G. L. c. 131, § 40, and appealed the part under the GWO to the Superior Court for certiorari review pursuant to G. L. c. 249, § 4. Following the appeal, MassDEP issued a superseding order of conditions approving the project and superseding the commission's denial under the WPA, finding that the second-story addition was designed in accordance with the MassDEP performance standards set forth in the State wetlands regulations. MassDEP also concluded that the plaintiff's allegations regarding the 2017 project could not form the basis for a “lack of information denial” of the second-story project, as the commission had issued a certificate of compliance to the 2017 project. Lastly, MassDEP stated that the “second story addition will not impact the ability of the Coastal Bank to provide the functions of storm damage prevention and flood control ․ and will not impact the ability of the land to provide storm damage or flood control functions.” Subsequent to the MassDEP superseding order, the Vigoritos and the commission agreed to a remand order in the Vigoritos’ action in the Superior Court for certiorari review of the commission's denial under the GWO.³

On remand, the commission held another public hearing in September 2023 (2023 hearing). At this hearing, the Vigoritos’ counsel provided the commission with evidence of the MassDEP superseding order. The plaintiff's counsel argued to the commission that the work done in the 2017 project was improper, predicting that if a wave were to hit the first floor, the structure would be “severely damaged” and would “spread debris, chemicals and biologically hazardous waste ․ throughout the neighborhood and the adjacent resource areas.” No evidence was presented to substantiate these claims.

The commission unanimously approved the project and issued an amended order of conditions, the 2023 OOC. The plaintiff commenced a new action for certiorari review in Superior Court. On the parties’ cross motions for judgment on the pleadings, the judge affirmed the 2023 OOC. The plaintiff appealed.

Discussion. 1. Standing. At the outset, we briefly address the Vigoritos’ claim that the plaintiff lacks standing. While standing “to bring a certiorari action to challenge the wetlands approval issued by the commission” requires that the plaintiff show a “reasonable likelihood that [she has] suffered injury to a protected legal right” (citation omitted), Hickey v. Conservation Comm'n of Dennis, 93 Mass. App. Ct. 655, 657 (2018), we need not resolve the Vigoritos’ challenge here. Assuming without deciding that the plaintiff has standing, the plaintiff has failed to allege a viable claim for vacating the commission's decision to issue the 2023 OOC. See Mostyn v. Department of Envtl. Protection, 83 Mass. App. Ct. 788, 792 & n.12 (2013) (question of standing need not be resolved where not outcome determinative).

2. Standard of review. When considering a case in the nature of certiorari, “the standard of review may vary according to the nature of the action for which review is sought.” Forsyth Sch. for Dental Hygienists v. Board of Registration in Dentistry, 404 Mass. 211, 217 (1989). “In order to overturn [an agency's decision], the applicants must establish that it was arbitrary and capricious or unsupported by substantial evidence”. Dubuque v. Conservation Comm'n of Barnstable, 58 Mass. App. Ct. 824, 828–829 (2003). “[I]f the agency has, in the discretionary exercise of its expertise, made a choice between two fairly conflicting views, and its selection reflects reasonable evidence, [a] court may not displace [the agency's] choice” (quotations and citation omitted). Conservation Comm'n of Falmouth v. Pacheco, 49 Mass. App. Ct. 737, 739 n.3 (2000).

We review a judge's decision allowing a motion for judgment on the pleadings de novo. See Delapa v. Conservation Comm'n of Falmouth, 93 Mass. App. Ct. 729, 733 (2018).

3. Arbitrary and capricious. The plaintiff claims that the commission's issuance of the 2023 OOC was arbitrary and capricious. “A decision is not arbitrary and capricious unless there is no ground which reasonable [persons] might deem proper to support it” (quotation and citation omitted). Garrity v. Conservation Comm'n of Hingham, 462 Mass. 779, 792 (2012).

The plaintiff asserts that the commission misunderstood its authority and adopted the MassDEP superseding order approving the 2022 OOC under an arbitrary application of the GWO, or else by applying only the WPA rather than acting under the GWO, which, the plaintiff contends, authorized the commission to consider the cumulative effects of the 2017 project and the second-story project. Additionally, the plaintiff alleges that the 2023 OOC is inconsistent with the 2022 OOC despite being based upon “the exact same facts” presented in 2022. We do not agree.

First, the record reveals that the city solicitor expressly advised the commission at the 2023 hearing that “there's nothing in the Court order that says [the commission] ha[s] to adopt the superseding order of conditions,” emphasizing that the commission retained “the ability to make a decision on the basis of what's been presented to [it] tonight.” The commission was aware that its duty to decide issues related to the GWO had not been supplanted by the MassDEP superseding order.

Second, it was not arbitrary and capricious for the commission to reconsider its earlier decision, which it had inherent authority to do. When it first addressed this project in its 2022 OOC, the commission stated that its decision

“to deny the project was based on additional work at the same location ․ that was believed to not have conformed to the Plan approved with the Order of Conditions issued on 2/14/2017․ Additional concerns leading to the denial are based on the potential of the cumulative activities ․ which in turn could affect building integrity and the potential for flood damages.”

On remand, the commission was presented with the MassDEP superseding order of conditions, which stated that the 2017 project had been “closed” in 2020 with the commission's issuance of the certificate of compliance and that the second-story project “will not impact the ability of the land to provide storm damage or flood control functions.”

The commission could reasonably consider MassDEP's uncontroverted portrayal of the 2017 project as closed, and its opinion that the second-story project posed no threat to storm damage and flood control functions, in concluding that the second-story project did not affect the interests protected by the GWO. MassDEP's reasoning and conclusions were not “extraneous” to the commission's considerations, nor were they related to “an ad hoc agenda,” as the plaintiff argues. Fafard v. Conservation Comm'n of Reading, 41 Mass. App. Ct. 565, 568 (1996). The commission did not act arbitrarily and capriciously. See Garrity, 462 Mass. at 792.

4. Substantial evidence. In addition, the commission's 2023 OOC was supported by substantial evidence. “Substantial evidence [is] such evidence as a reasonable mind might accept as adequate to support a conclusion.” Cave Corp. v. Conservation Comm'n of Attleboro, 91 Mass. App. Ct. 767, 773 (2017), quoting Healer v. Department of Envtl. Protection, 75 Mass. App. Ct. 8, 13 (2009). We also owe the commission deference to its interpretation of its own ordinance. See Pacheco, 49 Mass. App. Ct. at 739 n.3. See also Carey v. Commissioner of Correction, 479 Mass. 367, 369-370 (2018).

The evidence presented at the 2023 hearing included the Vigoritos’ engineered site plan and MassDEP's aforementioned conclusions, as well as their conclusions that the project was proposed in the buffer zone only, not in a resource area, and will not alter a resource area. The plaintiff presented no evidence to the contrary. Rather, the plaintiff's opposition to the project was based entirely on her claims relating to the 2017 project. Even assuming that those claims were legally relevant, however, the commission was justified in rejecting them, given that a certificate of compliance issued for the 2017 project and the plaintiff provided no evidence to substantiate her claims that that prior work did not conform to the plan approved by the 2017 OOC. Acknowledging the deference owed to the commission and its expertise, we conclude that the commission's decision was properly supported by grounds which a reasonable person could credit. Accordingly, the commission's actions were not arbitrary or capricious or legally erroneous, and its decision was supported by substantial evidence. See T.D.J. Dev. Corp. v. Conservation Comm'n. of N. Andover, 36 Mass. App. Ct. 124, 128 (1994).

Conclusion. The Superior Court judge did not err in entering judgment on the pleadings in favor of the Vigoritos. We note, however, that the 2023 OOC authorized 129.1 linear feet of direct alteration to the coastal bank, which the Vigoritos acknowledge was a scrivener's error. Accordingly, the judgment is vacated, and a new judgment shall enter remanding the matter to the conservation commission of Gloucester solely for the purpose of fixing the scrivener's error.

So ordered.

FOOTNOTES

2.   Three commissioners voted to approve the project, two voted to deny it, and one abstained. This resulted in a denial of the project because the three affirmative votes did not constitute a majority of the quorum of six.

3.   The Superior Court judge denied the plaintiff's motion to intervene, and the remand order was issued by the court.