Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 2, 2026 Get Citation Alerts Download PDF Add Note

BRIAN COPPENRATH & Another v. E.J. PONTIFF CRANBERRIES, INC., & Another.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 25-P-0340

• Precedential Status: Non-Precedential

• Opinion

• Authorities (11)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Combined Opinion

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

25-P-340

BRIAN COPPENRATH & another1

vs.

E.J. PONTIFF CRANBERRIES, INC., & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Brian and Kelsey Coppenrath, appeal from a

judgment entered by a Superior Court judge that dismissed for

lack of standing their complaint brought under the certiorari

statute, G. L. c. 249, § 4. The complaint alleged that the town

of Carver's earth removal committee (ERC) improperly issued an

earth removal permit (permit) to defendant E.J. Pontiff

Cranberries, Inc. (Pontiff).3 The complaint also sought a

declaratory judgment, pursuant to G. L. c. 231A, § 1,

1 Kelsey Coppenrath.

2 Earth removal committee of Carver.

3The ERC did not file a brief or otherwise participate in
this appeal.
invalidating the permit. Primarily at issue on appeal is the

third requirement for certiorari review -- whether the

plaintiffs suffered a substantial injury or injustice to

establish standing. See Indeck v. Clients' Sec. Bd., 450 Mass.

379, 385 (2008). We agree with the Superior Court judge and

affirm.

Background. Pontiff is a cranberry grower that purchased

the site at issue in 2023, although permits were issued since

2006 by the ERC to the prior owner that allowed earth removal

for the purpose of constructing cranberry bogs. In 2022, the

plaintiffs moved to a home that is considered an abutter to the

site. After Pontiff applied for the permit, the ERC held three

public hearings to consider the application as well as public

comments. In 2024, the ERC granted the permit to Pontiff with

conditions for the earth removal, including the hours of

operation, truck routes, maximum number of trucks permitted per

day, dust mitigation measures, and other safety precautions.

The plaintiffs filed a complaint in the Superior Court

seeking judicial review of the permit, pursuant to G. L. c. 249,

§ 4. They claimed that the application was submitted as a

"pretense [to] evade prohibitions against [commercial] sand and

gravel mining." They contended that the application and permit

failed to comply with the town's bylaws and that the ERC was

improperly constituted.

2
As relevant here, the plaintiffs alleged that they suffered

"[p]otential contamination of private wells"; "[a]irborne

release of medically harmful silica"; "[d]eposit[s] on their

properties of sand, gravel, and trash"; "[i]nfestation of

predatory animals threatening pets and humans"; "[c]oncussive

noise and vibration"; "[i]ncreased noise"; "[r]uination of

natural vista"; and "[d]ecreased property values."

The defendants moved to dismiss the complaint for lack of

standing pursuant to Mass. R. Civ. P. 12 (b) (1), 365 Mass. 754

(1974), arguing that the alleged injuries were "too generalized,

conclusory, speculative, and unrelated to the area of concern

addressed by the applicable bylaw to provide a basis for

standing."4 In opposition, the plaintiffs submitted an affidavit

from plaintiff Brian Coppenrath that averred, among other

things,

4 At the time of these proceedings, the purpose of the
bylaw, c. 9, § 9.1.1,

"[wa]s to promote the health, safety, and general welfare
of the residents of the [t]own of Carver, and to ensure
that permanent changes in the surface contours of land
resulting from the removal and regrading of earth materials
will leave the land in a safe and convenient condition for
appropriate reuse without requiring excessive and
unreasonable maintenance or creating danger of damage to
public and private property, as well as to provide that
earth removal activities shall be conducted in a safe
manner and with minimal detrimental effect upon the
district in which the activities are located."

3
"The trucks and equipment used for the earth removal on the
[s]ite enter and exit onto Tremont Street. Trucks and
equipment that head south [from the site] pass by my house.
. . . When I leave my house to go on to Tremont Street, I
encounter truck traffic from the earth removal operations
at the [s]ite. . . . On a near daily basis, I observe and
hear the earth removal operations and the trucking of sand
and gravel at the [s]ite starting early in the morning.
. . . [They] cause a significant amount of noise. . . .
On a near daily basis, I hear noise from truck traffic on
Tremont Street. . . . [T]he number of trucks driving up
and down Tremont Street has increased significantly. . . .
The trucks also cause vibrations when they pass by [my
house]. . . . Large earth removal trucks come down my
residential street to turn around and some pull . . . in
front of my house. . . . My entire house shakes from time
to time from the trucking operations. . . . The additional
noises and shaking of my house frequently disturb my
newborn baby and often disrupt my baby's and my family's
sleep patterns. . . . There is dirt and dust all over
Tremont Street from [Pontiff's] earth removal operations[.]
On many occasions, that dirt and dust blows or otherwise
ends up on . . . my land and my house. . . . [Pontiff's
operations] have had an adverse impact on my use and
enjoyment of my [h]ome[, and] my personal health and
wellbeing, including through . . . stress and anxiety."

The plaintiffs claimed that this was sufficient to confer

standing because they showed particularized and nonspeculative

injuries within the bylaw's zone of interests. The defendants

countered that the plaintiffs "fail[ed] to establish

individualized injuries to protected interests." The judge

agreed with the defendants and dismissed the complaint for lack

of standing. This appeal followed.

Discussion. 1. Legal standards. An action in the nature

of certiorari, G. L. c. 249, § 4, "serves to correct errors of

law in administrative proceedings where judicial oversight

4
otherwise is not available." Lippman v. Conservation Comm'n of

Hopkinton, 80 Mass. App. Ct. 1, 5 (2011). "To obtain certiorari

review of an administrative decision, the following three

elements must be present: (1) a judicial or quasi judicial

proceeding, (2) from which there is no other reasonably adequate

remedy, and (3) a substantial injury or injustice arising from

the proceeding under review." Indeck, 450 Mass. at 385.

Because there is no dispute that the first two requirements of

the statute have been met, the only question is whether the

plaintiffs suffered "a substantial injury or injustice arising

from" the issuance of the permit. Id. Put differently, we must

determine whether the plaintiffs have standing to challenge the

permit, see Friedman v. Conservation Comm'n of Edgartown, 62

Mass. App. Ct. 539, 541-543 (2004), "review[ing] the judge's

legal rulings . . . de novo," Pishev v. Somerville, 95 Mass.

App. Ct. 678, 682 (2019).

The declaratory judgment statute, G. L. c. 231A, § 1,

creates no substantive rights, see Galipault v. Wash Rock Invs.,

LLC, 65 Mass. App. Ct. 73, 83-84 (2005), and "does not provide

an independent statutory basis for standing," Enos v. Secretary

of Envtl. Affairs, 432 Mass. 132, 135 (2000), citing Pratt v.

Boston, 396 Mass. 37, 42-43 (1985). Its purpose is "to afford

[plaintiffs] relief from . . . uncertainty and insecurity with

respect to rights, duties, status[,] and other legal relations"

5
(citation omitted). Lippman, 80 Mass. App. Ct. at 6.

Plaintiffs "must establish both an actual controversy and legal

standing before the[ir] complaint [for declaratory judgment] may

be heard." Pishev, 95 Mass. App. Ct. at 682. Here, if the

plaintiffs fail to establish standing under the certiorari

statute, their complaint seeking a declaratory judgment must

likewise fail. See Galipault, supra.

2. Analysis. The plaintiffs argue that they have standing

because the activity under the permit caused them direct,

substantial, nonspeculative injuries that were distinguishable

from those suffered by the general public and were within the

bylaw's zone of interests. They also claim that failure to

grant them standing in this case would "essentially freeze out

anyone seeking to challenge an earth removal permit." We are

not persuaded.

The case of Fiske v. Selectmen of Hopkinton, 354 Mass. 269,

270-271 (1968), is instructive. In Fiske, the court affirmed

the dismissal of the certiorari action, concluding that the

allegations were speculative and damages were generalized; "it

[did] not appear from the petition . . . how [the plaintiffs

were] substantially injured beyond the hypothetical injuries to

the town . . . as a whole." Id. at 271. Indeed, the

"requirements for abutters seeking to establish and retain

standing are formidable." Friedman, 62 Mass. App. Ct. at 544.

6
They must demonstrate a reasonable likelihood that they have

suffered substantial injury to a protected legal right or

manifest injustice. See Higby/Fulton Vineyard, LLC v. Board of

Health of Tisbury, 70 Mass. App. Ct. 848, 850-851 (2007), citing

Fiske, supra. This the plaintiffs did not do.

First, some of the plaintiffs' claims were speculative --

neither the complaint nor the affidavit established that well

contamination, infestation of predatory animals, natural vista

ruination, harmful silica emission, or property value reduction

had occurred or will occur, and the plaintiffs do not contend

otherwise. See Hickey v. Conservation Comm'n of Dennis, 93

Mass. App. Ct. 655, 658 (2018) (injuries speculative where

raised "in a conclusory fashion" and "unsupported by expert

evidence, technical analysis, or particular facts in the record

that establish the purported risks" [brackets omitted]).

Second, to the extent that the injuries were not

speculative, they were generalized -- the plaintiffs failed to

establish how the permit "resulted in 'substantial injury' or

'manifest injustice' to them, rather than to the public in

general." Friedman, 62 Mass. App. Ct. at 545, quoting Fiske,

354 Mass. at 271. See id. at 270-271 ("disagreeable dust and

noise," "unsightly waste," depressed property values, and

burdensome traffic caused by earth removal were generalized

damages).

7
We are not unsympathetic to the plaintiffs' concerns, but

standing as a matter of law "is not measured by the intensity of

the[ir] interest[s] or the fervor of [their] advocacy." Pratt,

396 Mass. at 42, quoting Valley Forge Christian College v.

Americans United for Separation of Church & State, 454 U.S. 464,

486 (1982). Because the plaintiffs failed to demonstrate a

reasonable likelihood of substantial injury or manifest

injustice directly resulting from the permit, they do not have

standing and the complaint was properly dismissed.5 See Fiske,

354 Mass. at 271.

We are also not persuaded that the result here sets an

"insurmountable bar" to establish standing that no other

plaintiff will be able to overcome. For abutters, demonstrating

standing is "formidable," Friedman, 62 Mass. App. Ct. at 544,

5 Because the plaintiffs' certiorari claim fails, so too
does their request for declaratory relief. See Galipault, 65
Mass. App. Ct. at 83-84.

8
but not impossible. They must allege sufficient injuries to

carry their burden, something the plaintiffs did not do here.

Judgment affirmed.

By the Court (Blake, C.J.,
Neyman & Grant, JJ.6),

Clerk

Entered: March 2, 2026.

6 The panelists are listed in order of seniority.

9