BROCKTON POWER COMPANY LLC vs. PLANNING BOARD OF THE CITY OF BROCKTON

Plaintiff Brockton Power Company LLC filed its Verified Complaint on December 10, 2009 (09 MISC 417926), seeking (1), pursuant to the provisions of G.L. c. 249, § 5, a mandamus order to require Defendant City of Brockton Planning Board (the “Planning Board”) to allow site plan technical review to proceed pertaining to property owned by Plaintiff and located in the Oak Hill Industrial Park in Brockton, MA (“Locus”), and (2), pursuant to the provisions of G.L. c. 231A, § 1, a declaratory judgment relative to the Planning Board’s denial of the site plan technical review process. Plaintiff filed its Motion for Summary Judgment on January 13, 2010, together with supporting memorandum, Statement of Material Facts, and Appendix including the Affidavit of Barry P. Fogel, Esq. The Planning Board filed its Answer on January 20, 2010. A case management conference was held on February 16, 2010, at which time the Planning Board filed its Opposition to Motion for Summary Judgment, together with supporting memorandum and Appendix. On March 1, 2010, Plaintiff filed a Motion to transfer the case to the permit session, which was heard and allowed on March 11, 2010 (10 PS 424887). Plaintiff filed its Reply to Defendant’s Summary Judgment Opposition on March 22, 2010. Plaintiff filed its Verified Amended Complaint on June 24, 2010, adding to the two existing counts requests for a mandamus order and a declaratory judgment for a final Planning Board decision relative to site plan review. Plaintiff filed its Amended Motion for Summary Judgment on July 27, 2010, together with supporting memorandum and Appendix including Affidavit of Barry P. Fogel. The Planning Board filed its Opposition on August 27, 2010, together with Appendix including the Affidavits of Katherine M. Feodoroff (Assistant City Solicitor), Wayne McAllister (Chairman of the Planning Board), and Pamela Gurley (Secretary of the Planning Board). Plaintiff filed its Reply on September 10, 2010. A hearing was held on the summary judgment motion on November 29, 2010, and the matter was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-44 (2002); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Mass. R. Civ. P. 56(c).

I find the following material facts are not in dispute:

1. Plaintiff proposes to construct and operate a 350-megawatt electric generating facility (the “Project”) on Locus, a 13.2-acre site within the Oak Hill Industrial Park in Brockton, Massachusetts (the “City”).

2. The Project requires a site plan permit from the Planning Board, in accordance with Article XV of the City of Brockton Zoning Ordinance (the “Ordinance”).

3. In a 2008 proceeding, Plaintiff unsuccessfully petitioned the Energy Facilities Siting Board (“EFSB”) [Note 1] for an exemption from the Ordinance’s site plan review process pursuant to G.L. c. 40A § 3, which provides for exemptions in certain circumstances where the “proposed use of the land or structure is reasonably necessary for the convenience or welfare of the public.” In connection with this proceeding, the City submitted pre-filed testimony from the City’s Building Inspector which indicated that the Planning Board would provide timely site plan review for Plaintiff. The Building Inspector stated: “[A]t the present time, there is no evidence or reason to believe that the Site Plan Review process would be used inappropriately, or in a way that would delay or undermine the regional power supply benefits provided by the power plant.”

4. As required by the Massachusetts Wetlands Protection Act (“WPA”), on June 27, 2008, Plaintiff filed a Notice of Intent (“NOI”) with the Brockton Conservation Commission (the “ConCom”) seeking an Order of Conditions (“OOC”) for activities proposed at Locus.

5. On October 23, 2008, the ConCom issued an OOC on the NOI. The OOC denied approval for the activities proposed at Locus.

6. On November 4, 2008, Plaintiff appealed the OOC to the Department of Environmental Protection (“DEP”), requesting issuance of a Superseding Order of Conditions (“SOC”) approving the Project.

7. On December 18, 2008, Plaintiff submitted to the Planning Board an application for a site plan permit (the “Application”) for Locus. 8. The Technical Review Committee of the Planning Board met to perform technical review of the Application on January 22, 2009 and March 16, 2009. [Note 2]

9. On September 3, 2009, the DEP issued an SOC approving the Project.

10. On September 17, 2009, the ConCom filed an administrative appeal with the DEP to challenge the SOC. [Note 3]

11. On September 21, 2009, Plaintiff submitted to the Planning Board, by Plaintiff’s engineer, an updated narrative and site plans that described revisions that had been made since technical review on March 16, 2009. [Note 4] The revisions included the addition of a 48-foot by 16-foot building and the reduction of soundproofing walls from 130 feet to 116 feet. Plaintiff requested additional technical review.

12. By letter dated September 21, 2009, the Planning Board notified Plaintiff that the Application was scheduled for review by the Technical Review Committee on October 5, 2009. The Planning Board requested an additional filing fee for further review of the Application, which Plaintiff paid.

13. At the October 5, 2009 hearing before the Technical Review Committee, the Planning Board announced that it would not allow technical review of the Application because the ConCom’s administrative appeal of the SOC was pending. Plaintiff had not received notice of the Planning Board’s intention prior to the meeting.

14. By letter dated October 7, 2009, Plaintiff filed an objection with the Planning Board and requested that the technical review be allowed to proceed. No response was received and the technical review has not been rescheduled.

15. On March 16, 2010, the DEP issued a decision (the “Final Decision”) affirming the SOC as the Final OOC and thereby approving the Project.

16. On April 9, 2010, the ConCom filed an appeal in Plymouth County Superior Court (the “Superior Court”) challenging the DEP’s Final Decision, pursuant to G.L. c. 30A § 14 and G.L. c. 231A § 1. [Note 5]

17. On April 13, 2010, Plaintiff submitted additional narrative materials and site plans to the Planning Board describing additional changes to the Project design, including use of natural gas rather than Ultra Low Sulfur Diesel as a fuel and the related removal of a 750,000-gallon diesel storage tank. Plaintiff also submitted notice of the issuance of the DEP’s Final Decision. Plaintiff requested further technical review.

18. In a letter dated April 22, 2010 (“Planning Board Condition 1”), the Planning Board stated that “[s]ince site plan review is intended to regulate site use, submission of a new application is appropriate with filing fee and evidence that all un-appealed permits and approvals are in place including, Conservation Commission approval, and upon resolution of litigation.” In the letter the Planning Board returned the filing fee submitted in September 2009. [Note 6]

19. By letter dated April 30, 2010 to an engineering company acting for Plaintiff (“Planning Board Condition 2”), the Planning Board returned the Application materials Plaintiff filed on April 13, 2010. The letter stated: “Given the nature of your client’s proposed used, it is critical that, in addition to the outstanding permits, approvals and agreements discussed above, [Note 7] the air and water resources issues be addressed and associated permits and approval obtained prior to Planning Board consideration.” The Planning Board’s letter also included the following statement of filing criteria:

To meet the Brockton Planning Board’s minimum filing criteria for site plan approval, proposed projects must have obtained or secured, prior to filing, all other required permits, approvals, land rights, easements and, if required, zoning relief. After the appropriate permits, approvals and agreements are obtained and the pending litigation is resolved, your client may resubmit for Planning Board consideration a current application, filing fee and evidence that all final, un-appealed permits and approvals are in place including, [sic] Conservation Commission approvals.

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The Ordinance governs site plan review in Article XV, sections 27-85 through 27-89A. Section 27-85 states the purpose of site plan review:

1. That the design and construction of developments will not create a detrimental impact to neighborhoods or to the environment;

2. That the proposed project, development or proposed development will be in harmony with surrounding areas where appropriate and consistant [sic] with the orderly development of the city as a whole.

3. Compliance with all the requirements set forth in the zoning ordinances of the City of Brockton with appropriate city agency review and public input;

4. Appropriate safeguards and impact mitigation for all such development.

Section 27-86 establishes the Planning Board as the permit granting authority for site plan review. Section 27-87 provides in relevant part that “[t]he applications for the permit under site plan review shall be processed in accordance with a defined system that assures city and public review and consistent with the Massachusetts General Laws and the rules and regulations as adopted by [the Planning Board].” Section 27-88 details the technical requirements of site plans. It requires that site plans and profile drawings be filed with the Planning Board, which shall show both existing and proposed:

(a) Access and egress . . .;

(b) Lot lines and easements . . .;

(c) Current and proposed building and structures . . .;

(d) Topography with appropriate contours . . .;

(e) A professionally developed plan identifying surface water bodies, floodplain area(s) and area(s) subject to the 100-year flood evaluation . . .;

(f) Soil profiles . . .;

(g) Landscape features, walls, walks, and lighting;

(h) Landscaping proposed . . . and consistent with any screening and/or green space required by chapter 27;

(i) Location of parking areas required by chapter 27 and facilities for internal vehicular and pedestrian circulation;

(j) Site drainage and supporting data . . .;

(k) Location of site utilities and supporting data . . .:

(l) Any loading facilities as may be required by chapter 27;

(m) Traffic study, if required by the [Planning Board] . . .;

(n) Architectural drawing of the proposed building(s) and structure(s), if required by the Planning Board.

Section 27-89 lists several criteria that the Planning Board, as the permit granting authority, shall use to “ensure that there will be a reasonable use of the site”, including:

1. Adequate capacity of local streets to accommodate traffic . . . ;

2. Adequacy of the public infrastructure to service the area and the immediate vicinity of the site. The public infrastructure includes the city’s water, sewer and public safety protection;

3. Protection of adjoining properties against serious detrimental uses by providing for adequate site drainage, offensive sounds and sights and landscaped screening and buffers;

4. Convenience and safety of vehicular and pedestrian movement within the site and location of driveways and adjacent streets;

5. Adequacy of parking and loading arrangements; and

6. Adequacy of the methods for disposal of water, sewerage and refuse and other wastes resulting from the permitted use on the site.

Section 27-89A lists “Thresholds,” at least two of which the Project satisfies: “any development that requires utility extension” and “[a]ll new commercial and industrial buildings.” [Note 8]

The rules and regulations incorporated by § 27-87 are The City of Brockton Rules and Regulations of the Planning Board (“the Rules”), which establish site plan review as a two-tier approval process that requires first a technical review by appropriate city departments and then a second review by the Planning Board. The Rules provide that “[p]rojects that require Conservation Commission approval may proceed to the Technical Review and will only receive final Planning Board approval upon the issuance of an Order of Conditions or a Determination of Applicability.” Rules, § VIII.

This case puts two questions before this court. First, this court must decide whether the circumstances of this case allow Plaintiff to bring an action in the nature of mandamus. Second, if this court so decides, it must determine whether the Planning Board has adequately carried out the review process to which the Ordinance entitles Plaintiff. These issues are discussed in turn. Mandamus Jurisdiction.

Plaintiff brings this action pursuant to G.L. c. 249 § 5, which provides that

“[a] civil action to obtain relief formerly available by writ of mandamus may be brought . . ., if the matter involves any right, title or interest in land, or arises under or involves the subdivision control law, the zoning act, or municipal zoning, or subdivision ordinances, bylaws or regulations, in the land court.”

“Relief in the nature of mandamus is appropriate to compel a public official to perform an act which the official has a legal duty to perform.” Lutheran Serv. Ass’n of New England, Inc. v. Metropolitan Dist. Comm’n, 397 Mass. 341 , 344 (1986). However, it is “well settled” that such relief “is extraordinary and may be granted only to prevent a failure of justice in instances where there is no alternative remedy.” Callahan v. Superior Court, 410 Mass. 1001 , 1004 (1991).

Plaintiff maintains that a mandamus action is appropriate because the Planning Board has a legal duty to review the Application through its Technical Review Committee. Plaintiff argues that it has no other adequate and effective remedy at law that would enable it to obtain review and approval of the Application.

The Planning Board challenges Plaintiff’s right to mandamus relief, arguing that the Rules do not impose on the Planning Board a timetable for its legal duty to review the Application and that Plaintiff is therefore not entitled to a writ of mandamus. Moreover, the Planning Board contends that Plaintiff has other remedies available, making issuance of the writ inappropriate. Finally, the Planning Board argues that an unfair burden would be imposed if it were required to provide technical review of a complex plan potentially subject to change. It argues that the Ordinance gives it discretion to allow the City to avoid wasting time and resources holding hearings on a project that may become moot, since a decision of the Superior Court against Plaintiff relative to ConCom issues might lead to another appeal or a substantial revision of the Project. [Note 9]

The Planning Board proposes two alternative remedies for Plaintiff. First, the Planning Board alleges that the appeal of the DEP Final Decision to the Superior Court is at a standstill and argues that Plaintiff should take action to move that appeal forward. Second, the Planning Board argues that Plaintiff may petition the EFSB for relief. 980 CMR 6.02(1) provides that “[a]ny electric, gas or oil company which proposes to construct or operate a facility may petition . . . for a Certificate of Environmental Impact and Public Need with respect to such facility. Such initial petition shall assert one or more of the grounds set forth in 980 CMR 6.02(2).” The Planning Board argues that Plaintiff should bring a petition pursuant to 980 CMR 6.02(2)(b), asserting that “it is prevented from building a . . . facility because the processing or granting by a state or local agency of any permit has been unduly delayed.” [Note 10] Therefore, the Planning Board maintains, Plaintiff must be required to pursue these two remedies before invoking the extraordinary remedy of mandamus.

The Planning Board’s argument with respect to the appeal in Superior Court misconstrues the nature of the relief sought by Plaintiff. The ConCom’s appeal involves only aspects of the Project related to wetlands, and the Superior Court case does not involve any other issues. Moreover, Plaintiff seeks a judgment relative to the Planning Board’s legal obligation to provide review, not the validity of the SOC, an entirely different matter. Irrespective of whether the Project has a prohibitive environmental impact, Plaintiff’s complaint seeks relief that includes an order requiring the Planning Board to allow the technical review to proceed on other grounds than wetlands issues. Therefore, the possibility that the Superior Court will affirm the SOC cannot be considered an adequate remedy for Plaintiff. [Note 11]

The EFSB offers a separate appeal process, but it cannot be considered an adequate remedy either. Plaintiff seeks a remedy that is specific to the Planning Board and the Planning Board’s obligations. It is true that the EFSB has authority to allow Plaintiff to bypass the Planning Board’s approval process, [Note 12] which could lead to Plaintiff’s ultimate desired result – approval of the Project. However, the Planning Board again fails to distinguish between an ultimate result and a remedy. In this situation, a significant part of the remedy that Plaintiff seeks is the ability to avoid further delays caused by the Planning Board’s alleged failure to perform its duty. The purpose of mandamus is not well served by merely diverting Plaintiff from one governmental body that will not do its duty to another body that will. [Note 13]

Regardless of how the arguments on appeal are resolved by the Superior Court, the Planning Board’s cost in reviewing Plaintiff’s application has no bearing on the Planning Board’s legal obligation to proceed with the review. This court is sympathetic to the City’s budgetary constraints and the limitations of its employees and volunteers, including that it has been without a City Planner since July 2008. Nevertheless, the Planning Board must provide the review in accordance with the defined system required by its own Ordinance and Rules.

Based on the foregoing, I find that Plaintiff is entitled to bring an action in the nature of mandamus, inasmuch as the Ordinance does not excuse the Planning Board from any duty it has to review the Application through its Technical Review Committee or from any duty the Planning Board has to issue a final decision relative to site plan review, and because Plaintiff does not have an adequate alternative remedy if the Planning Board has either such duty.

The Planning Board’s Review Process.

A primary legal duty of the Planning Board is found in § 27-87 of the Ordinance, which requires that “applications . . . under site plan review shall be processed in accordance with a defined system . . . consistent with . . . the rules and regulations as adopted by [the Planning Board].” Simply put, the Planning Board is required to follow the Rules.

The parties disagree sharply about the Planning Board’s legal duty because they interpret the Rules differently. [Note 14] The Rules provide that

[P]rior to Planning Board hearing, the appropriate City Departments will meet and will review the application and plans for compliance with City Ordinance. The applicant and / or agent are required to attend this session to expedite the review. Projects that require Conservation Commission approval may proceed to the Technical Review and will only receive final Planning Board approval upon the issuance of an Order of Conditions or a Determination of Applicability. Rules, § VIII (emphasis added).

The Planning Board argues that this conditional language gives it discretion either to advance to the technical review stage a project that requires approval by the ConCom or to wait instead for the ConCom to issue an OOC. In contrast, Plaintiff argues that the language entitles the applicant to choose to proceed with technical review even if ConCom review is pending.

Before analysis of the Planning Board’s duty can proceed, the meaning of this provision must be resolved according to rules of statutory construction. “Zoning ordinance terms ‘should be interpreted in the context of the [ordinance] as a whole and, to the extent consistent with common sense and practicality, they should be given their ordinary meaning.’” Worcester v. Bonaventura, 56 Mass. App. Ct. 166 , 168 (2002) (quoting Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass. App. Ct. 249 , 254 (1990)).

The parties’ interpretations downplay both the context in which the conditional language appears and practical matters. Considered narrowly in isolation, the plain meaning of “may proceed” is that there is nothing to prevent the Project from advancing, that a real possibility exists that it might advance. Reading this provision to mean mere absence of impediment, the parties are in conflict over which of them has control over the Project’s unhindered progress through the site plan review process. Importantly, however, the Rules refer specifically to projects that require ConCom approval, a separate review process; the requirement of a separate review raises the question whether the Planning Board must put its process on hold until the ConCom process is finished. In the context of that question, the most reasonable reading of “may proceed” is that the fact that a project requires ConCom review shall not prevent technical review of that project. The Rules confirm this interpretation by adding in the same sentence an additional requirement that such projects must meet before final approval, thereby establishing a limit on how far a project requiring ConCom approval shall advance in the Planning Board approval process while the ConCom approval is pending. Moreover, because the site plan review covers many more issues than ConCom approval, it would appear that a more practical reading of the Rules is that the technical review should proceed immediately, to flush out other issues which may impact the Project, but that final approval cannot be given without the ConCom approval. [Note 15] [Note 16]

Plaintiff asserts that the Application complied with the requirements of the Ordinance and the Rules. In particular, Plaintiff asserts that it has complied with all of the prerequisites for processing a site plan application and is therefore entitled to technical review and subsequent full site plan review, even though the ConCom’s appeal of the SOC is pending in the Appeals Court. Therefore, Plaintiff contends that the Planning Board has imposed ad hoc conditions on its Application – Planning Board Condition 1 and Planning Board Condition 2 – that are not required by the Rules.

The Planning Board maintains that Plaintiff has not satisfied the prerequisites, because the Rules require an unappealable OOC. Furthermore, the Planning Board denies that it has imposed ad hoc conditions, arguing that the disputed conditions relate to factors that the Ordinance gives it discretion to regulate.

The Rules distinguish between the requirements for technical review and final site plan review. For clarity, the two tiers of site plan review will also be considered separately here.

A. Technical Review

According to Plaintiff’s understanding of the Ordinance and the Rules, there is no prerequisite for technical review other than that an application be filed. Therefore, Plaintiff asserts that it has complied with the requirements laid out in the Ordinance, the Rules, and all other relevant sources. Plaintiff argues that none of these sources imposes the minimum filing criteria stated in the Planning Board’s letters of April 22 and April 30, 2010. Specifically, none of them states a requirement that the Project “must have obtained or secured, prior to filing, all other required permits, approvals, land rights, easements and, if required, zoning relief.” Therefore, Plaintiff alleges that the Planning Board exceeded its authority by preventing technical review at the meeting on October 5, 2009, and by imposing these ad hoc requirements laid out in the Planning Board’s letters.

The Planning Board does not argue – and the evidence does not show – that there is any explicit prerequisite for technical review beyond the sources cited by Plaintiff. Instead, the Planning Board relies on its discretion and implicit authority under the Ordinance. Part of the Planning Board’s argument is based on discretion that it asserts on the basis of the conditional language in the Rules. As discussed, supra, the most reasonable reading of the conditional language in the Rules does not provide an adequate basis for discretion to deny technical review. Otherwise, the Planning Board argues that it receives such discretion from Article XV of the Ordinance, especially ¶¶ 27-85 and 27-89. Since the Ordinance requires the Planning Board to implement a procedure that has the purpose of ensuring “[a]ppropriate safeguards and impact mitigation for all . . . development [requiring site plan review],” ¶ 27-85 (emphasis added), the Planning Board contends that it should have broad authority to carry out this mandate. Furthermore, the Planning Board points to the broad language in ¶ 27-89, which requires it to “ensure that there will be a reasonable use of the site,” explicitly with respect to such general categories as “[a]dequacy of the public infrastructure” and “[p]rotection of adjoining properties against serious detrimental uses.” The Planning Board therefore argues that it has implicit discretion to carry out the requirements of the Ordinance, which it asserts is consistent with denying Plaintiff technical review.

The Ordinance and the Rules do not establish any specific prerequisites to technical review or give any reason why it cannot now proceed. The Rules do not require the issuance of an OOC for technical review. Such an interpretation would violate the “elementary rule of statutory construction that a statute should not be read in such a way as to render its terms meaningless or superfluous.” Bynes v. School Comm. of Boston, 411 Mass. 264 , 268 (1991). [Note 17] The Rules refer to “final Planning Board approval”, a term that would be superfluous if there were not some kind of preliminary approval process; it would appear that a preliminary process would include the technical review, already designated in the Rules as the first of two review tiers.

As the Planning Board argues, it is clear that Article XV grants it significant discretion within the purposes of the Ordinance. However, such discretion cannot be stretched into a general prerogative to abstain from technical review of otherwise adequate applications. Furthermore, that discretion cannot be the basis of highly specific criteria for review implied into the Ordinance, such as the asserted minimum criteria stated in the Planning Board’s letter dated April 30, 2010. The Ordinance and the Rules do not anywhere state Planning Board Condition 1 or Planning Board Condition 2. Furthermore, as they appear in the letters from the Planning Board, Planning Board Condition 1 and Planning Board Condition 2 do not reference any specific provision of the Ordinance or the Rules. Planning Board Condition 2 is especially unreasonable in its requirement that applicants obtain all permits, approvals, land rights, easements, and zoning relief prior to filing. Not only is there no basis for this requirement in the Rules, it appears unnecessary for the purposes of the Ordinance as expressed in Article XV. [Note 18] To be valid, site plan review provisions must “provide for regulation of the permitted use through reasonable terms and conditions.” Muldoon v. Planning Bd. of Marblehead, 72 Mass. App. Ct. 372 , 374 (2008). It appears that the Planning Board has introduced an unreasonable condition at nearly the earliest possible point in the application process, well before the reasonableness of conditions is usually considered.

Moreover, the Planning Board’s conduct indicates that it was willing to act on the basis of the original OOC. The parties disagree about the meaning of the technical review that occurred on March 16, 2009. [Note 19] Plaintiff claims that the Technical Review Committee determined that the plan met all requirements of the Ordinance. The Planning Board denies that the Technical Review Committee indicated that all requirements were met. It is not necessary to resolve this disagreement to see from the record that the Planning Board was willing to move forward with technical review, even though Plaintiff’s administrative appeal requesting an SOC was pending at that time.

Based on the foregoing, I find that Planning Board Condition 1 and Planning Board Condition 2 are not required by the Ordinance or the Rules. I further find that Plaintiff is entitled to technical review by the Planning Board through its Technical Review Committee.

B. Final Site Plan Review.

Plaintiff carries its argument further and contends that the issuance of an OOC entitles it to final action by the Planning Board. Plaintiff argues that it satisfied this requirement when the DEP issued its Final Decision on the SOC, effectively a final OOC, on September 3, 2009. Even though the DEP’s decision was appealable, Plaintiff argues that it was final enough to proceed to final site plan review because the DEP regulations do not impede a project once all administrative proceedings before the DEP have concluded. [Note 20] Therefore, Plaintiff asserts that it has complied with the requirements laid out in the Ordinance, the Rules, and all other relevant sources.

To counter this argument, the Planning Board relies on its interpretation of the Rules and DEP regulations with regard to the finality of the SOC, and again on its implicit authority under the Ordinance. The Rules provide that “[p]rojects that require [ConCom] approval may proceed to the Technical Review and will only receive final Planning Board approval upon the issuance of an Order of Conditions or a Determination of Applicability.” Rules, § VIII. The Planning Board contends that, for purposes of this provision, an OOC means an order that is no longer subject to an appeal. Moreover, the Planning Board argues that Plaintiff misapplies 310 CMR 10.05(k)(7), because that DEP regulation merely permits an applicant to proceed on the basis of an SOC with the DEP’s blessing and at the risk of losing any appeal, but does not establish an SOC as an absolutely final resolution. [Note 21]

The main prerequisite to site plan review and final action imposed by the Rules incorporated by the Ordinance is “the issuance of an Order of Conditions.” Planning Board Condition 1 and Planning Board Condition 2 do not apply to final action by the Planning Board, for the same reason that they do not apply to technical review: those conditions simply are not in the Ordinance or the Rules. As Plaintiff suggests, it is true that nothing in the Rules explicitly states that the required OOC must be immune to appeal. Nevertheless, the most reasonable and practical reading of the Rules would not require the Planning Board to take final action on the Project without taking the appeal into account. [Note 22] In contrast to technical review, which may provide immediately useful information as the Project evolves, a final action cannot efficiently be based on an approval that is subject to change. However, efficiency also requires that the Planning Board take final action to the full extent that a pending appeal allows.

Beyond these practical considerations, it is useful to consider the context in which the Rules refer to an OOC. The Rules refer to the OOC as an alternative requirement to a Determination of Applicability, which DEP regulations define as “a written finding by a conservation commission or the [DEP] as to whether a site or the work proposed thereon is subject to the jurisdiction of [the WPA].” 310 CMR 10.04. A Determination of Applicability is clearly not necessarily final. Like an OOC, it may be appealed, pursuant to 310 CMR 10.05(c). In fact, it is a threshold matter, since an NOI may be filed in response to a positive Determination of Applicability. See 310 CMR 10.05(b)(3). Nevertheless, a Determination of Applicability allows final Planning Board approval, and as such does not necessarily give final wetlands approval. This situation most clearly arises with a negative Determination of Applicability, which obviates the need for an NOI and therefore does not require an approval relative to the WPA. On the other hand, a positive Determination of Applicability would not be a reasonable basis for final Planning Board action with regard to the WPA because the ConCom would not yet have addressed the issues under its jurisdiction. However, it would be reasonable for the Planning Board to take final action on such a project, conditioning any approval on subsequent approval by the ConCom or the DEP. The Rules in no way qualify the alternative requirement of a “Determination of Applicability”, but the Rules must be construed reasonably in a practical context to avoid such absurd results as a final Planning Board approval relative to the WPA prior to ConCom review of an NOI. In the same way, implicit in a reasonable reading of the Rules is a requirement that the OOC be truly final for the Planning Board to take final action relative to the WPA. However, there is no requirement in the Ordinance or the Rules that the OOC be final for the Planning Board to take final action relative to matters other than the WPA.

In preparation for final site plan approval, the Rules state that “copies of the site plan incorporating the final comments of the Technical Review Committee must be submitted to the Office of the City Planner . . . on the first business day of the month following the Technical Review meeting.” [Note 23] Section VIII. With regard to the Technical Review meeting, the Rules state that “[p]rior to Planning Board hearing, the appropriate City Departments will meet and will review the application and plans for compliance with City Ordinance.” Id. The Appeals Court has broad authority pursuant to G.L. c. 30A § 14 and may, as the Planning Board argues, significantly alter the conditions on which the Project may proceed under the WPA, even though the Superior Court upheld the SOC. The Technical Review Committee’s comments may therefore be required after the appeal to determine how such conditions may be implemented in compliance with the Ordinance. For this reason, it makes sense to address as many issues as possible before the appeal process is complete, so that the application process after the appeal can be appropriately focused on the issues raised on appeal.

Taken in proper context and with an eye toward practical concerns, the most reasonable reading of the Rules would not require the Planning Board to take final action relative to WPA matters addressed in the OOC before the OOC is finalized. However, the most reasonable reading of the Rules would require the Planning Board to take final action to the extent possible. [Note 24] [Note 25] The Planning Board has no valid reason not to consider issuing a conditional approval. [Note 26] Based on the foregoing, I find that Plaintiff is entitled to site plan review and final action by the Planning Board, and that the Planning Board may condition any approval on an unappealable approval of the SOC.

In spite of Plaintiff’s satisfaction of the prerequisites for review, the Planning Board argues that it would be unfair and prejudicial to require it to review plans that may be changed significantly by Plaintiff, whether before or because of the appeal of the Superior Court decision. The Planning Board points out that Plaintiff has already revised its plan twice since 2009; because of the extent of these revisions, the Planning Board argues, the current application is not the one that Plaintiff claims already underwent technical review. The Planning Board asserts that an adequate review of a project so large and complex would require substantial time and expense from City, which is already facing a shortage of resources.

The parties disagree about the significance and scope of the revisions Plaintiff submitted on September 21, 2009 and April 13, 2010. The Planning Board views these revisions as “major modifications,” after which the plans are no longer “representative” of the Project reviewed in March 2009. Therefore, the Planning Board states that review would be “an enormous undertaking.” Plaintiff argues that the changes are mere refinements that actually reduce the overall scale and complexity of the plan. Some of the changes, such as the removal of a large tank, clearly imply simplification. However, it does not necessarily follow that a simpler plan will require less effort for the Planning Board to review or involve fewer of the criteria enumerated in the Ordinance.

But regardless of the effort required, the Planning Board cannot reasonably claim to be unfairly burdened by the changes made since the March 2009 review, because its own procedures clearly anticipate multiple reviews. The Site Plan Review Thresholds and Application Procedure states:

All minor changes discussed at the Technical Review session must be incorporated into the final plan and approved by the department requesting the change before proceeding to the Planning Board for approval. Major changes will require that the applicant re-appear at a subsequent Technical Review session. An applicant will be advised . . . whether his changes require him to re-appear. . . .

This provision protects the City by allowing ongoing review of projects as they may evolve. It seems unlikely that the burden of technical review would become unfair simply because Plaintiff submitted revisions while an appeal was pending instead of waiting until it prevailed in the appeal. [Note 27] It is not uncommon for a substantial project to require approvals from multiple authorities with different jurisdictions and powers. For example, it is “well established that municipalities may enact more stringent requirements than those provided in the [WPA].” FIC Homes v. Conservation Comm'n, 41 Mass. App. Ct. 681 , 686 (1996). The Ordinance unquestionably gives the Planning Board power to review aspects of the site plan that are beyond the scope of the DEP and its SOC. Occasional conflict between authorities may be expected during the application process, but the possibility of such friction is not a valid justification for the Planning Board to refuse action on the matters properly within its jurisdiction and discretion.

As a result of the foregoing, Plaintiff’s Motion for Summary Judgment is ALLOWED IN PART, inasmuch as Plaintiff is entitled to technical review by the Planning Board through its Technical Review Committee, and inasmuch as Plaintiff is entitled to final action on the Application by the Planning Board, except that the Planning Board may condition its approval on an unappealable approval of the SOC. Plaintiff’s Motion for Summary Judgment is DENIED IN PART, inasmuch as Plaintiff is not entitled to unconditioned final action by the Planning Board with respect to issues raised by the appeal of the SOC to the Appeals Court, prior to final resolution of that appeal.

Judgment to enter accordingly.