NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-165

FRANK N. GOBBI, JR., trustee,1

vs.

TOWN OF DEDHAM & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Frank N. Gobbi, Jr., as trustee of the Gobbi 

Revocable Trust, appeals from a Superior Court judgment 

upholding the decision of the Conservation Commission of Dedham 

(commission) to deny his after-the-fact application for a 

stormwater management permit. On appeal, the plaintiff contends 

that the commission improperly applied revised regulations that 

were adopted while his application was pending and acted 

arbitrarily and capriciously in denying his permit application. 

The plaintiff also appeals from an order denying his 

postjudgment motion to expand the record to include meeting 

minutes that purportedly evince the commission's intent to 

1 Of the Frank N. Gobbi Revocable Trust.

2 Conservation Commission of Dedham.
2

exempt pending applications from the revised regulations. We 

affirm.

Background. 1. Regulatory framework. In 1996, the town 

of Dedham (town) adopted a stormwater management bylaw (bylaw) 

to "protect, maintain and enhance the public health, safety, 

environment and general welfare of the Town by establishing 

minimum requirements and procedures to control the adverse 

effects of soil erosion and sedimentation, construction site 

runoff, [and] increased post-development stormwater runoff and 

nonpoint source pollution associated with new development and 

redevelopment." To advance that objective, the bylaw requires 

residents to obtain a stormwater management permit (permit) from 

the commission before commencing any project that alters or 

disturbs land area in excess of 500 square feet. The permitting 

process allows the commission to monitor and manage the impact 

of such projects on the community.

Pursuant to its authority under the bylaw, the commission 

adopted stormwater rules and regulations governing project 

requirements and the permitting process. Two different versions 

of the regulations are relevant here: the version adopted in 

2008 (2008 regulations) and the version adopted on November 15, 

2018 (2018 regulations). Both versions require redevelopment 

projects to improve existing conditions at the project site and 

comply with stormwater management standards issued by the 
3

Massachusetts Department of Environmental Protection (DEP 

standards). DEP standard 3 requires projects to include 

infiltration measures that minimize or eliminate the loss of 

annual recharge to groundwater. DEP standard 4 states that 

projects must include stormwater management systems designed to

remove eighty percent "of the average annual post-construction

load of Total Suspended Solids (TSS)." DEP standard 7 states 

that redevelopment projects need only comply with DEP standards

3 and 4 to "the maximum extent practicable."

The 2018 regulations introduced several new requirements 

that did not appear in the 2008 regulations. Specifically, 

§ 5.A.3 of the 2018 regulations requires projects be designed to 

"[r]etain the volume of runoff equivalent to, or greater than, 

two (2) inches multiplied by the total post-construction 

impervious surface area on the site" (hereinafter, "the two-inch 

storage requirement"). Section 5.A.3 additionally requires all

development projects to include a stormwater management system 

that removes eighty percent of TSS, thus negating the exemption 

in DEP standard 4 allowing redevelopment projects to remove 

eighty percent of TSS to "the maximum extent practicable."

Under the 2018 regulations, after a permit application is 

submitted, the commission "may request the submission of 

additional information," including, but not limited to, 

information "to describe the site, the work, or the effect of 
4

the work on water quality and runoff volume." The commission is 

authorized to approve a permit application "upon finding that 

the proposed project will protect water resources and meets the 

objectives and requirements" of the bylaw, or to deny the 

application "due to non-compliance with Design Standards."

2. The project. The plaintiff owns a commercial property

in the town that consists of a retail building, parking lot, and 

plantings. In June of 2018, the town's building commissioner 

learned that the plaintiff planned to regrade and repave 

portions of the property's parking lot (project), purportedly to 

meet certain requirements of the Americans with Disabilities 

Act.3 On June 12, 2018, the town's conservation agent, Elissa 

Brown, sent the commissioner an e-mail message stating that she 

had determined, pursuant to the commissioner's request, that the 

project would require a permit.4

On August 2, 2018, the plaintiff's project engineer, John 

Glossa, of Glossa Engineering, Inc., sent Brown a letter

summarizing the plan for the project (project plan) and stating 

his opinion that the work would not trigger the permit

requirements of the bylaw. On August 8, 2018, Brown sent Glossa 

3 The record is unclear as to how the building commissioner 

learned of the project. 

4 There is no evidence that the plaintiff was informed that Brown 

had evaluated the site and determined the project would require 

a permit until August of 2018, as discussed infra.
5

an e-mail message explaining that a permit would, in fact, be 

required, because the project involved regrading more than 500 

square feet of land. Over the next few days, Glossa and Brown 

exchanged several additional e-mail messages disputing the 

necessity of a permit, unwavering in their respective positions.

On August 15, 2018, the plaintiff commenced the project 

without a permit. The commission issued a stop work and 

enforcement order to the plaintiff the following day. On August 

17, 2018, the commission received a letter from the plaintiff's 

attorney disputing the necessity of a permit and stating that 

the plaintiff intended to continue the project without one.

3. The application. On August 28, 2018, the plaintiff 

submitted an after-the-fact permit application (application)

seeking retroactive approval of the project.5 The project plan 

accompanying the application did not include any proposed 

stormwater infiltration measures or indicate how it would 

otherwise improve existing conditions.

The commission held nine public hearings on the application 

between September 6, 2018, and March 21, 2019.6 During the 

5 The application stated that approximately 18,434 square feet of 

the property had already been repaved and regraded and that 

another 3,938 square feet of the property would need to be 

repaved and regraded to complete the project.

6 The hearings were held on September 6, 2018; September 20, 

2018; October 4, 2018; October 18, 2018; November 1, 2018; 
6

public hearing process, the plaintiff resisted numerous 

directives to incorporate stormwater improvements into the 

project plan and failed to comply with the commission's requests 

for information it needed to assess whether the project plan was 

feasible and consistent with the requirements of the regulations 

and bylaw.7

The plaintiff's resistance to the commission's directives 

is perhaps best demonstrated by the way he and his 

representatives responded to the commission's requests to add

stormwater infiltration measures to the project plan. At the 

first public hearing, on September 6, 2018, Glossa stated that 

infiltration measures would be "a potential liability" given the 

property's proximity to railroad tracks and status as a former 

coal yard. At the same hearing, Glossa was informed that even 

if there was coal in the soil (the commission noted the absence 

of documentation to that effect), it was not considered a 

hazardous material that would exempt the plaintiff from the 

infiltration requirements of the regulations. Glossa and the 

December 6, 2018; December 20, 2018; February 21, 2019; and 

March 21, 2019.

7 The evidence in the record strongly suggests that the 

plaintiff's recalcitrance was rooted in a belief that he was, or 

should be, exempt from permit requirements. The plaintiff 

unsuccessfully raised this issue in his Superior Court appeal

and, in briefing the instant appeal, did not challenge the 

Superior Court judge's determination that a permit was required.
7

plaintiff nevertheless continued at subsequent hearings to cite 

the potential presence of coal in rejecting the commission's 

directives to incorporate infiltration measures.

At a hearing on December 6, 2018, a representative of the 

plaintiff told the commission that infiltration "would not be 

impactful" due to the poor quality of the soil at the property. 

The commission responded that the regulations did not exempt the 

property from infiltration requirements based on its soil type, 

and advised the plaintiff and his representative of various ways 

the project could be engineered to alleviate concerns about 

groundwater breakout and contamination. Yet at the next 

hearing, on December 20, 2018, Glossa stated that due to the 

presence of residual coal in the property's soil, "he would not 

design the project to the specifications of the Commission," and

that "in his opinion" the commission's recommendation to 

incorporate infiltration measures in the upper parking area of 

the property "would not be feasible." In response, a 

commissioner told Glossa that Glossa had "a responsibility to do 

his due diligence, and prove [his] claims," by using a licensed 

site professional to review the soil data and support the claims 

of potential contamination. He never did.

Glossa submitted a new project plan in early January of 

2019, accompanied by a letter stating that the plan did "not 

show [the] storm water recharge that was recommended by the 
8

Commission" because "[i]t would be extremely expensive . . . to 

install a viable recharge system," "[g]iven the impermeable soil 

conditions . . . , it is likely that any recharge system will 

fail in a short period of time," and, due to the "possibility" 

that recharging stormwater would "cause severe problems 

including sink holes and a discharge to the ground of harmful 

materials." Following a January 17, 2019, meeting between the 

plaintiff's representatives, the commission, and the town's 

building and engineering departments, Glossa revised the project

plan again on January 23, 2019 (final project plan).

At a hearing on February 21, 2019, Glossa pointed out that 

the final project plan included a subsurface galley that would 

accommodate .10 inches of recharge. When a commissioner advised 

him that the soil type at the property required .30 inches of 

recharge and noted that the final project plan did not satisfy

the two-inch storage requirement that had been introduced in the 

2018 regulations, Glossa responded that the plaintiff "was 

opposed to the 2-inch storage requirement." At the same 

hearing, Glossa told the commission that the plaintiff was 

"unwilling" to clean a drainpipe bisecting the property, as the 

town's engineering department and commission had requested. The 

plaintiff also refused to comply with the commission's request 

that he determine the exact location of the drainpipe, claiming 

that it would be an "undue hardship."
9

On March 21, 2019, the commission voted to close the public 

hearing.8 The commission issued a decision denying the 

plaintiff's application the same day.

4. The commission's decision. The commission found that 

the plaintiff had not met his burden to demonstrate "by a 

preponderance of the credible evidence that the work proposed in 

the application will not have unacceptable adverse or cumulative 

effect on the resource areas protected" by the bylaw, and that 

he had likewise failed to submit "adequate evidence to show the 

effect the proposed project may have on the surface water or 

ground waters of the Commonwealth, and/or the storm drainage 

system of the Town of Dedham." The commission cited, among 

other things, the plaintiff's failure to provide evidence of 

abutter notification or submit a site plan with a precise 

location of the drainpipe bisecting the property. See 2018 

regulations, § 6.B and appendix B.

The commission also determined that the final project plan 

did not comply with the DEP standards as required by § 5.A of 

the 2018 regulations. Specifically, the commission found that 

the final plan did not comply with DEP standard 3, because it 

did not use infiltration to minimize loss of annual recharge to 

8 The decision denying the plaintiff's application says the 

hearing was closed on March 7, 2019, but the minutes indicate 

the hearing was closed on March 21, 2019.
10

groundwater "to the maximum extent practicable"; DEP standard 4, 

because the surface water management system the plaintiff had 

proposed only removed forty-four percent of TSS, and therefore,

did not meet the requirement to remove eighty percent of TSS "to 

the maximum extent practicable"; DEP standard 7, because the 

final plan did not meet the other DEP standards to the "maximum 

extent practicable"; and DEP standard 10, because the plaintiff 

had failed to file an illicit discharge compliance statement.

Further, the commission concluded that the final plan did 

not meet the requirements of § 5.A.3 of the 2018 regulations 

because it did not fulfill the two-inch storage requirement or

remove eighty percent of TSS. The commission stated that it had 

been unable to determine whether the final project plan met the 

third requirement of § 5.A.3, for stormwater management systems 

to remove sixty percent of the average annual load of total 

phosphorus, because the plaintiff had failed to provide any 

calculations regarding the removal of total phosphorus at the 

property.

The commission also denied the plaintiff's request for 

waivers exempting him from requirements to remove eighty percent 

of TSS and to locate all existing stormwater utilities because 

the plaintiff "did not provide any supporting information" 

concerning the hardship he had alleged those requirements 

imposed.
11

5. Superior Court appeal. On May 17, 2019, the plaintiff 

brought a certiorari action in Superior Court seeking judicial 

review of the commission's decision and asserting claims to 

quiet title and for trespass related to the drainpipe under the 

property. In turn, the commission asserted counterclaims for 

injunctive relief, to enforce the bylaw, and for a civil 

penalty.

On November 6, 2020, a Superior Court judge issued an order 

denying the plaintiff's motion for judgment on the pleadings and 

allowing the commission's cross motion with respect to the 

plaintiff's certiorari claim and the commission's counterclaim 

for injunctive relief. In his memorandum of decision, the judge 

rejected the plaintiff's contention that the commission 

improperly applied the 2018, rather than the 2008, regulations,

and held that the plaintiff's application and requests for 

waivers had been properly denied. The parties later agreed to 

stay the injunctive order pending the outcome of the instant 

appeal and stipulated to the dismissal of the claims for 

trespass, quiet title, and a civil penalty. Judgment entered on 

July 28, 2021, and the plaintiff timely appealed.

In January of 2022, the plaintiff filed a motion in the 

Superior Court pursuant to G. L. c. 30A, § 14 (4), and Mass. R. 

A. P. 8 (e) (1), as appearing in 481 Mass. 1611 (2019), seeking 

to expand the administrative record to include minutes of the
12

commission's November 15, 2018, meeting. In support, the 

plaintiff asserted that the minutes evinced the commission's 

intent to apply the 2018 regulations prospectively -- that is, 

only to applications received from November 15, 2018, forward. 

A second Superior Court judge denied the motion on January 31, 

2022. Again, the plaintiff timely appealed. The two appeals 

were consolidated.

Discussion. 1. Motion to expand the record. The 

plaintiff challenges the Superior Court order denying his motion 

to expand the record and encourages us to consider the November 

15, 2018, meeting minutes sua sponte as part of the record in

the instant appeal.9 See Mass. R. A. P. 8 (e) (1) (appellate 

court may cure material omissions from record on motion of 

parties or on its own motion). Assuming we obliged, at most, 

the minutes would support the proposition that the 2018

regulations applied to new applications, without regard to 

pending applications. Thus, the absence of the minutes from the 

record would not be a material omission, as the minutes are 

silent on the applicability of the 2018 regulations to pending

applications such as the plaintiff's application. 

9 Ordinarily, we would review the order denying the plaintiff's 

motion to expand the record for an abuse of discretion. See 

Commonwealth v. Roxbury Charter High Pub. Sch., 69 Mass. App. 

Ct. 49, 53 (2007). The plaintiff's request that we consider the 

minutes sua sponte appears to be an attempt to circumvent this 

deferential standard of review.
13

Nevertheless, the plaintiff's contention that the minutes 

should be included in the record is waived because it is 

untimely. "It is implicit in [rule 8 (e)] and in the very 

nature of the appellate process that any correction to the 

record must take place before the appeal has been decided" 

(emphasis added). Hamed v. Fadili, 408 Mass. 100, 104 (1990).

In this case, the plaintiff did not file his motion to expand 

the record until January 5, 2022 -- well over one year after his 

appeal of the commission's decision to the Superior Court was

decided (though judgment did not enter until July 28, 2021).

During oral argument, the plaintiff's counsel stated that she 

discovered the November 15, 2018, minutes when she began 

preparing for the instant appeal and "searched all the different 

minutes to see if there was anything for when the actual 

regulations were put into place." The plaintiff has offered no 

valid reason why he could not have searched for the minutes, and 

moved to expand the record to include them, earlier. See 

Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 312-313 

(2009).

Accordingly, the plaintiff's motion to expand the record 

was properly denied, and our review of the commission's decision 

must proceed on the same record on which the first Superior 
14

Court judge based his decision.10 See Evancho v. Director of 

Div. of Employment Sec., 375 Mass. 280, 283 (1978) (postjudgment 

letter advising judge of document omitted from administrative 

record "was not timely" and document could not be considered as 

part of record on appeal). Cf. Commonwealth v. Aboulaz, 44 

Mass. App. Ct. 144, 147 (1998) ("a rational system of further 

appellate review best fulfills its function if both appellate 

courts deal with the same record").

2. The commission's decision. a. Standard of review. 

"We review the allowance of a motion for judgment on the 

pleadings de novo." Boston v. Conservation Comm'n of Quincy, 

490 Mass. 342, 345 (2022), quoting Kraft Power Corp. v. Merrill, 

464 Mass. 145, 147 (2013). "When considering a case under 

certiorari, the standard of review may vary according to the 

nature of the action for which review is sought." Fafard v. 

Conservation Comm'n of Reading, 41 Mass. App. Ct. 565, 567 

(1996). "In the context of this review of a conservation 

commission denial of a permit, we ask whether the commission's 

action was arbitrary or capricious, based upon error of law, or 

unsupported by substantial evidence." Conroy v. Conservation 

10 We acknowledge the defendants' contention that the plaintiff's 

motion was untimely because Superior Court Standing Order 1-96

requires motions for leave to present additional evidence under 

G. L. c. 30A, § 14 (6), to be brought within twenty days after 

the administrative record is filed.
15

Comm'n of Lexington, 73 Mass. App. Ct. 552, 558 (2009). The 

commission's selection between two conflicting evidentiary views 

will not be disturbed on appeal as long as that selection was 

reasonable. See Conservation Comm'n of Falmouth v. Pacheco, 49 

Mass. App. Ct. 737, 739 n.3 (2000) (Pacheco).

b. Application of the 2018 regulations. We are not 

persuaded by the plaintiff's contention that the commission 

improperly applied the 2018 regulations and should have instead 

applied the 2008 regulations that were in effect when he filed 

his application.11 In the absence of a vested right, "[a] change 

made in the law pending [an] application for a permit . . . 

rather than the law existing at the time of filing is to govern 

action on the application." R.V.H., Third, Inc. v. State 

Lottery Comm'n, 47 Mass. App. Ct. 712, 716 (1999), quoting 

Selectmen of Topsfield v. State Racing Comm'n, 324 Mass. 309, 

11 The plaintiff also contends that the 2018 regulations are 

invalid because certain provisions conflict with the bylaw and 

expand the scope of what the bylaw requires. The only time the 

plaintiff raised this issue below was in a footnote of the 

memorandum he submitted to the Superior Court in support of his 

motion for judgment on the pleadings. Therein, the plaintiff 

asserted that the "2018 Regulations are partially or entirely 

invalid for reasons including their inconsistency with the 

applicable Bylaws." The plaintiff then acknowledged that he had 

yet to even examine the issue. Although we conclude that the 

issue is not properly before us, see Ten Local Citizen Group v. 

New England Wind, LLC, 457 Mass. 222, 232 n.15 (2010), and cases 

cited, it is worth noting that the bylaw expressly states that 

where there is a conflict between the bylaw and the regulations, 

"the more stringent provisions shall apply."
16

314 (1949). Cf. Ziffrin, Inc. v. United States, 318 U.S. 73, 78 

(1943) ("a change of law pending an administrative hearing must 

be followed in relation to permits for future acts. Otherwise 

the administrative body would issue orders contrary to the 

existing legislation"). As explained below, there is no 

evidence that the plaintiff had a vested right to have his 

application considered under the 2008 regulations, and 

therefore, the 2018 regulations were properly applied.

In Massachusetts, the mere filing of a permit application 

does not give the applicant any vested rights to the issuance of 

a permit. See Caputo v. Board of Appeals of Somerville, 330 

Mass. 107, 111 (1953) ("The fact that the plaintiff filed his 

application for a permit before the ordinance was amended gave 

him no vested rights"); Spector v. Building Inspector of Milton, 

250 Mass. 63, 71 (1924) (filing of permit application gave 

plaintiff no vested rights because "petitioner held his property 

subject at all times to every valid exercise of the police 

power"); Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass. 

App. Ct. 245, 249 (2010) (applicant "acquired no rights simply 

by filing the permit application"). Instead, the right to a 

permit vests "at the time the applicant is unconditionally 

entitled to its issuance." Albahari, supra at 250. 

Before the 2018 regulations were adopted on November 15, 

2018, the commission had already held five public hearings on 
17

the plaintiff's application. During each of those hearings, 

members of the commission cited deficiencies with the project

plan that needed to be resolved before the plaintiff's

application could be approved. At the November 1, 2018,

hearing, which was the last hearing before the 2018 regulations 

were enacted, the plaintiff had yet to incorporate required 

infiltration measures into the project plan and was instructed 

to continue working with the town's engineering department to 

address its concerns about the drainpipe bisecting the property

and an oil and grit separator the plaintiff had proposed to

install to remove TSS. Because the plaintiff failed to submit 

an acceptable plan before the 2018 regulations were enacted, he 

had no vested right to a permit under the 2008 regulations. See 

Albahari, 76 Mass. App. Ct. at 250.

Although exceptions to the general rule have been made to 

prevent "manifest injustice," see Thorpe v. Housing Authority of 

Durham, 393 U.S. 268, 282 & n.43 (1969), no threat of injustice 

is present here. Section 246-4 of the bylaw permits the 

commission to "adopt, and periodically amend," its rules and 

regulations. Given the commission's authority to periodically 

modify its regulations, it was unreasonable for the plaintiff to 

assume that his application would be forever immunized from 

regulatory changes, particularly where he did not submit his 

final project plan until approximately two months after the 2018 
18

regulations were adopted. Additionally, the commission's

request that the plaintiff fulfill criteria that were exclusive 

to the 2018 regulations, such as the two-inch storage 

requirement, further underscores the fact that the plaintiff 

should have anticipated his application would be evaluated under 

the 2018 regulations.

Accordingly, the 2018 regulations were properly applied.12

c. Denial of the plaintiff's application. There is no 

merit to the plaintiff's assertion that his application was 

improperly denied. We agree with the first Superior Court 

judge's conclusion that the commission's decision to deny the 

plaintiff's application was appropriate based on the plaintiff's 

failure to comply with § 5.A.3 of the 2018 regulations alone. 

Specifically, the final project plan did not fulfill the two12 The cases the plaintiff relies upon in his brief, Biogen IDEC 

MA, Inc. v. Treasurer & Receiver Gen., 454 Mass. 174 (2009), and 

Fleet Nat'l Bank v. Commissioner of Revenue, 448 Mass. 441 

(2007), are readily distinguishable from this case. In Biogen, 

454 Mass. at 191, the Supreme Judicial Court held that the 

Treasurer of the Commonwealth could not retroactively apply 

amended regulations requiring the plaintiff to factor a new 

category of funds into its annual payments under abandoned 

property laws. In Fleet, 448 Mass. at 450, the Supreme Judicial 

Court held that the Commissioner of Revenue could not 

retroactively apply a legislative amendment extinguishing the 

right of taxpayers to receive interest on overpayments from the 

date of the overpayment. Fleet and Biogen thus stand for the 

proposition that an amended law cannot be applied to usurp 

rights that were conclusively determined under the antecedent 

version of the law. In this case, however, the plaintiff did 

not vest any rights before the amended regulations were adopted.
19

inch storage requirement or remove eighty percent of TSS, and 

the plaintiff failed to provide calculations necessary to 

determine whether the final plan would remove the required sixty 

percent of total phosphorus.

The plaintiff's contention that the commission's decision 

was arbitrary and capricious because it lacked "any evidence" to 

conclude that he failed to satisfy DEP standards 3 and 4 "to the 

maximum extent practicable" lacks merit. As an initial matter, 

the absence of evidence that the plaintiff failed to meet DEP 

standards 3 and 4 did not establish that the plaintiff did, in 

fact, satisfy those requirements. Because the burden of proof 

rested with the plaintiff, the commission could reasonably 

conclude that the requirements had not been met based on the 

plaintiff's failure to submit sufficient evidence that they had.

With respect to DEP standard 3, which requires the use of 

infiltration to minimize or eliminate the loss of recharge, the 

Massachusetts Stormwater Handbook (handbook)13 states that 

meeting the standard "to the maximum extent practicable" means 

that:

"(1) The applicant has made all reasonable efforts to meet 

the Standard;

"(2) The applicant has made a complete evaluation of all 

possible applicable infiltration measures, including 

environmentally sensitive site design that minimizes land 

13 The 2018 regulations require projects to comply with the DEP 

standards "and accompanying Stormwater Management Handbook."
20

disturbance and impervious surfaces, low impact development 

techniques, and structural stormwater best management 

practices; and

"(3) If the post-development recharge does not at least 

approximate the annual recharge from pre-development 

conditions, the applicant has demonstrated that s/he is 

implementing the highest practicable method for 

infiltrating stormwater." 

The plaintiff did not satisfy any of the foregoing standards 

here. To the contrary, he repeatedly refused to consider, let 

alone evaluate, the additional infiltration measures that were 

recommended by the commission. Further, although the plaintiff 

and his representatives cited fears of soil contamination in 

rejecting the commission's recommendations, the plaintiff never 

submitted evidence substantiating the claim that soil 

contamination was a legitimate concern.

The plaintiff's assertion that Glossa's opinion was 

sufficient to prove that he had met DEP standards 3 and 4 "to 

the maximum extent practicable" is unpersuasive. The commission 

was not required to credit Glossa's opinion, especially 

considering that Glossa failed to hire a licensed site 

professional to validate his claims, as the commission had 

specifically requested. A commissioner also noted at one point 

that Glossa had provided inconsistent reasons in support of his 

opinion, further casting doubt on its validity. This, coupled

with the failure to hire a licensed site professional, provided

ample reason to doubt Glossa's expertise and reliability. See 
21

Pollard v. Conservation Comm'n of Norfolk, 73 Mass. App. Ct. 

340, 349 n.10 (2008) ("An agency may justifiably reject an 

expert's opinion on the basis of facts in the record that make 

the rejection of the expert evidence reasonable, including facts 

of a nontechnical nature . . . [and] where there are flaws in 

the methodology or assumptions upon which the opinion depends or 

where the opinion is based upon conjecture of guesswork"). 

The plaintiff also contends that denying his application 

prevented him from "significantly enhanc[ing] stormwater 

treatment at the Property," and thus contravened the purpose of 

the bylaw. However, the purpose of the bylaw is not only to 

control the effects of stormwater runoff and pollution, but to 

"establish[] minimum requirements and procedures" applicable to 

measures taken in furtherance of that objective. Because the 

plaintiff failed to satisfy those minimum requirements, the 

denial of his application did not contravene the purpose of the 

bylaw.

On the record presented, the plaintiff has not sustained 

his burden to establish the invalidity of the commission's 

decision.14 See Garrity v. Conservation Comm'n of Hingham, 462 

Mass. 779, 792 (2012).

14 To the extent that the plaintiff's appeal raises other 

arguments not discussed here, such as his challenges to the 

commission's findings that he failed to notify abutters and

provide an illicit discharge statement, we have not overlooked 
22

d. Denial of waiver requests. We discern no error in the 

commission's denial of the plaintiff's waiver requests. The 

plaintiff did not submit any documentation to substantiate his 

claims that compliance with TSS removal requirements and 

locating all existing stormwater utilities would impose an undue 

hardship. See GreenRoots, Inc. v. Energy Facilities Siting Bd., 

490 Mass. 747, 756 (2022), quoting Mederi, Inc. v. Salem, 488 

Mass. 60, 67 (2021) ("A decision is not arbitrary and capricious 

unless there is no ground which reasonable persons might deem 

proper to support it"). Moreover, even if the plaintiff had 

substantiated his claims of hardship, the commission would still

have had the discretion to decline his request. See 2018 

regulations § 1.E (stating that the commission "may" waive 

strict compliance with certain requirements). 

e. Injunctive relief. Last, the plaintiff contends that 

the Superior Court did not have jurisdiction to grant injunctive 

relief on the commission's counterclaim. The counterclaim was 

brought pursuant to § 246-8(A) of the bylaw, which empowers the

commission to seek injunctive relief "in a court of competent 

jurisdiction" against any person who violates the provisions of 

the bylaw, "or any associated regulations, permit, notice, or 

order issued thereunder . . . restraining the person from 

those arguments, but conclude that they do not merit discussion. 

See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
23

activities which would create further violations or compelling 

the person to perform abatement or remediation of the 

violation." Therefore, after the first Superior Court judge 

determined that the plaintiff was not entitled to a permit under 

the 2018 regulations and bylaw, he could properly order 

injunctive relief for the commission on its counterclaim for 

enforcement. See Pacheco, 49 Mass. App. Ct. at 744-745.

Judgment affirmed.

Order denying motion to 

expand the record affirmed.

By the Court (Neyman, 

Desmond & Grant, JJ.15),

Clerk

Entered: March 2, 2023.

15 The panelists are listed in order of seniority.