Deferential Review Of Administrative Proceedings Has Its Limits

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Deferential Review Of Administrative Proceedings Has Its Limits: Pollard v. Conservation Commission of Norfolk73 Mass. App. Ct. 340 (2008)

Judicial review of state administrative proceedings is supposed to be “highly deferential to the agency.” Pursuant to G.L. c. 30A, § 14, due weight must be given “to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.”  Flint v. Comm’r of Public Welfare, 412 Mass. 416, 420 (1992). Following a recent decision of the Massachusetts Appeals Court (“Appeals Court”), however, such review may be slightly less venerable in the future.

In 2002, Mr. and Mrs. Pollard filed a notice of intent with the Norfolk Conservation Commission (“Commission”) to construct a single-family home with a private well and subsurface septic system on a 70,000 square foot undeveloped lot. In support of their notice, the Pollards offered evidence to demonstrate that the work they proposed within the 50-foot and 100-foot wetland buffer zones would not harm the interests protected by the Town of Norfolk’s wetlands by-law ( i.e., erosion control, protection of groundwater, wildlife habitat, etc . . .). Such evidence included the report and expert testimony of an environmental and engineering consultant who opined that the Pollards’ proposed work would have “no impact” on the ability of the 50-foot buffer zone to protect the interests identified in the by-law. Further, the Pollards, in the consultant’s view, had also made “reasonable efforts” to minimize the impact of their work within the 100-foot buffer zone.

Even though the evidence submitted was “essentially uncontested,” the Commission concluded that the Pollards failed to make the required showing regarding work proposed in the buffer zones. Citing its prerogative to determine the probative value of an applicant’s evidence, the Commission refused to credit the evidence submitted by the Pollards, including the opinions of their consultant. And, since the Pollards did not sustain their burden of proof, the Commission declined to issue them an order of conditions.

On appeal to the Norfolk Superior Court, the Commission maintained it was within its rights to disbelieve the Pollards’ proffered evidence. Judge Dortch-Okara nonetheless reversed, finding the Commission’s decision unsupported by substantial evidence. In her view, evidence contrary to the conclusion that the Pollards failed to sustain their burden of proof was “overwhelming.”

The Appeals Court (Perretta, J.) affirmed the reversal in an opinion that sends a cautionary message to boards and agencies, rather than a rebuke. While the exclusive right of an agency to weigh the probative value of evidence “is not subject to debate,” such evidence may not be disbelieved, warned the Appeals Court, without an explicit and objectively adequate reason. Moreover, this reason should be reflected in the administrative record. “As applicable to the matter before us,  there must be a basis in the record for the rejection of uncontradicted expert opinion evidence or for remaining unpersuaded.” (Emphasis added). This rule, reasoned the Appeals Court, “guard[s] against arbitrary rulings by administrative agencies.” Because the Commission could point to nothing in the record to explain its rejection of the Pollards’ evidence or perceived deficiencies in that evidence, the Appeals Court found itself “unable to determine with any reasonable degree of certainty that [the Commission’s] decision was arrived at with fairness and without predisposition.” It, therefore, affirmed the Superior Court decision.

Future boards and agencies should take heed. If an applicant’s evidence is deficient, lacking, or merely not credible, the board or agency should make certain that such shortcomings are expressly reflected in the administrative record. Otherwise, a court – even a “deferential” one – may not give the board or agency the benefit of the doubt upon review of its decision.