author: CYPHER, J.

text:
    Terry BRIDGWOOD v. A.J. WOOD CONSTRUCTION, INC., & others.
    SJC-12352
    Supreme Judicial Court of Massachusetts, Essex..
    Argued January 8, 2018 Decided August 29, 2018
    Roy D. Toulan, Jr., for the plaintiff.
    Lili K. Geller for A.J. Wood Construction, Inc., & another.
    Mark C. Darling, Worcester, for Anthony Caggiano.
    The following submitted briefs for amici curiae:
    Martin J. Rooney, Braintree, for Massachusetts Defense Lawyers Association.
    Ryan D. Sullivan, Boston, for Eastern Massachusetts Chapter of the National Association of the Remodeling Industry.
    John Pagliaro & Martin J. Newhouse, Boston, for New England Legal Foundation, amicus curiae.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

      Also known as A.J. Wood Construction.

      Richard Smith and Anthony Caggiano.

   CYPHER, J.

At issue in this case is whether a claim alleging that a building contractor committed an unfair or deceptive act under G. L. c. 93A, §§ 2 and 9, by violating G. L. c. 142A, § 17 (10), is subject to the six-year statute of repose set forth in G. L. c. 260, § 2B. The plaintiff, Terry Bridgwood, commenced this action in 2016, alleging that renovations performed in 2000 and 2001 by the defendants, A.J. Wood Construction, Inc. (A.J. Wood); its principal, Richard Smith; and its subcontractor, Anthony Caggiano, caused a fire in her home in 2012. On the defendants' motions, a judge in the Superior Court dismissed the complaint as untimely under the statute of repose. Bridgwood appeals, and we transferred the case to this court on our own motion. Because we agree that this case is within the ambit of the statute of repose, we affirm.

Facts. The defendants filed what was styled a motion to dismiss pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974) and Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1975). Under either rule, we accept as true all facts pleaded by Bridgwood in her amended complaint. See Jarosz v. Palmer, 436 Mass. 526, 530, 766 N.E.2d 482 (2002) ; Warner-Lambert Co. v. Execuquest Corp., 427 Mass. 46, 47, 691 N.E.2d 545 (1998). See Jarosz, supra at 529, 766 N.E.2d 482, quoting J.W. Smith & H.B. Zobel, Rules Practice § 12.16 (1974) (motion pursuant to rule 12 [c] is "actually a motion to dismiss ... [that] argues that the complaint fails to state a claim upon which relief can be granted").

On October 30, 2000, the city of Newburyport, through its housing rehabilitation program, awarded A.J. Wood and Smith a contract for the rehabilitation of Bridgwood's home in Newburyport. Smith and A.J. Wood retained Caggiano as the electrical subcontractor for the rehabilitation of the premises. Newburyport's contractor agreement for the housing program provided that Smith and A.J. Wood were to be responsible for the performance of the specified rehabilitation work in accordance with certain standards, including that all rehabilitation, alterations, repairs, or extensions be in compliance with all applicable Federal, State, and local codes; before commencing work, contractors or subcontractors obtain all necessary permits; the contractor and subcontractor must personally inspect the premises and give full attention to any and all areas of their involvement; the contractor certify compliance with all Federal, State, and local regulations including G. L. c. 142A, the home improvement contractor law; the contractor take all responsibility for the work done under the contract, for the protection of the work, and for preventing injuries to persons and damage to property and utilities on or about the work; and all work performed meet or exceed all building and fire codes of Newburyport. Bridgwood relied on these specific covenants promised by the defendants in authorizing the work to be performed in her premises.

None of the defendants obtained a permit to replace or repair certain ceiling light fixtures in the premises. None of the defendants gave proper notice to the Newburyport inspector, or arranged or provided for an inspection by the inspector, of the electrical wires used by Caggiano to replace or repair the ceiling light fixtures before the wires were concealed. The electrical rehabilitation work with respect to the ceiling light fixtures was not performed in compliance with any applicable Federal, State, or local codes with respect to such work, as required by the contractor agreement. Bridgwood was not aware of this compliance failure until the concealed wiring work done by Caggiano caused a substantial fire in and damage to her home on January 31, 2012, causing in excess of $40,000 in damage and significant emotional and physical distress to Bridgwood. The amended complaint does not state when the work was performed, but Bridgwood concedes that it was completed in January, 2001. This action was commenced in January, 2016, about fifteen years later.

Discussion. Bridgwood alleges that the defendants violated G. L. c. 93A by violating G. L. c. 142A, § 17 (10). General Laws c. 142A, § 17 (10), prohibits contractors and subcontractors from "violat[ing] the building laws of the commonwealth or of any political subdivision thereof." Section 17 also provides that "[v]iolations of any of the provisions of this chapter shall constitute an unfair or deceptive act under the provision of [G. L. c. 93A]." Bridgwood claims that the defendants failed to perform the electrical work in compliance with those standards and, therefore, committed unfair or deceptive acts. The defendants argue that the claim is barred by the statute of repose set forth in G. L. c. 260, § 2B. According to Bridgwood, however, the statute of repose does not apply to consumer protection claims under G. L. c. 93A.

Statutes of repose and statutes of limitations are different kinds of limitations on actions. A statute of limitations specifies the time limit for commencing an action after the cause of action has accrued, but a statute of repose is an absolute limitation which prevents a cause of action from accruing after a certain period which begins to run upon occurrence of a specified event. See Rudenauer v. Zafiropoulos, 445 Mass. 353, 358, 837 N.E.2d 278 (2005). A statute of repose eliminates a cause of action at a specified time, regardless of whether an injury has occurred or a cause of action has accrued as of that date. See id. Statutes of limitations have been described as a "procedural defense" to a legal claim, whereas statutes of repose have been described as providing a "substantive right to be free from liability after a given period of time has elapsed from a defined event." Bain, Determining the Preemptive Effect of Federal Law on State Statutes of Repose, 43 U. Balt. L. Rev. 119, 125 (2014). The statutes are independent of one another and they do not affect each other directly as they are triggered by entirely distinct events. Moore v. Liberty Nat'l Life Ins. Co., 267 F.3d 1209, 1218 (11th Cir. 2001), quoting First United Methodist Church of Hyattsville v. United States Gypsum Co., 882 F.2d 862, 865-866 (4th Cir. 1989), cert. denied, 493 U.S. 1070, 110 S.Ct. 1113, 107 L.Ed.2d 1020 (1990). See Rosenberg v. North Bergen, 61 N.J. 190, 199, 293 A.2d 662 (1972) ("The function of [a] statute [of repose] is thus rather to define substantive rights than to alter or modify a remedy"); Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn. 1995) ("[The] distinction has prompted courts to hold that statutes of repose are substantive and extinguish both the right and the remedy, while statutes of limitation are merely procedural, extinguishing only the remedy"). See Bain, supra.

General Laws c. 260, § 5A, which establishes the limitations period for G. L. c. 93A claims, provides that "[a]ctions arising on account of violations of any law intended for the protection of consumers, including but not limited to ... [G. L. c. 93A] ... whether for damages, penalties or other relief and brought by any person, including the attorney general, shall be commenced only within four years next after the cause of action accrues." Section 5A is solely a statute of limitation; it contains no statute of repose.

The statute of repose contained in G. L. c. 260, § 2B, provides in relevant part:

"Actions of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property ... shall be commenced only within three years next after the cause of action accrues; provided, however, that in no event shall such actions be commenced more than six years after the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner" (emphasis added).

"Like all statutes of repose, '[t]he effect ... is to place an absolute time limit on the liability of those within [its] protection and to abolish a plaintiff's cause of action thereafter, even if the plaintiff's injury does not occur, or is not discovered, until after the statute's time limit has expired.' " Nett v. Bellucci, 437 Mass. 630, 635, 774 N.E.2d 130 (2002), quoting McGuinness v. Cotter, 412 Mass. 617, 622, 591 N.E.2d 659 (1992).

As we discussed in Klein v. Catalano, 386 Mass. 701, 708, 437 N.E.2d 514 (1982), the repose statute at issue there "was enacted in response to case law abolishing the rule that once an architect or builder had completed his work and it had been accepted by the owner, absent privity with the owner, there was no liability as a matter of law." The abolition of that rule exposed "those involved in construction ... to possible liability throughout their professional lives and into retirement." Id. at 708-709, 437 N.E.2d 514. The Legislature therefore "placed an absolute outer limit on the duration of this liability." Id. at 709, 437 N.E.2d 514. The statute thus protects contractors from claims arising long after the completion of their work. We recognized in Klein that limiting the duration of liability is a legitimate public purpose, and we upheld G. L. c. 260, § 2B, over a constitutional challenge, even though it abolishes a plaintiff's cause of action without providing any alternative remedy. Klein, supra at 709-713, 437 N.E.2d 514.

Since deciding Klein, we have consistently enforced statutes of repose according to their plain terms, despite the hardship they may impose on plaintiffs. "Unlike statutes of limitation, statutes of repose cannot be 'tolled' for any reason." Nett, 437 Mass. at 635, 774 N.E.2d 130. For example, although G. L. c. 260, § 7, tolls any applicable statute of limitations until a minor plaintiff reaches majority, it does not toll the statute of repose. Tindol v. Boston Hous. Auth., 396 Mass. 515, 517-518, 487 N.E.2d 488 (1986). The statute of repose eliminates a plaintiff's cause of action even in cases of fraudulent concealment. Sullivan v. Iantosca, 409 Mass. 796, 798, 569 N.E.2d 822 (1991). See Joslyn v. Chang, 445 Mass. 344, 350-351, 837 N.E.2d 1107 (2005) (statute of repose for medical malpractice, G. L. c. 260, § 4, not subject to equitable estoppel or tolling due to fraudulent concealment). In addition, the statute of repose is not subject to the "relation back" concept that permits adding a defendant by amending the complaint after the expiration of the repose period. Tindol, supra at 518-519, 487 N.E.2d 488. "Simply put, after six years, [ G. L. c. 260, § 2B,] completely eliminates a cause of action against certain persons in the construction industry." Klein, 386 Mass. at 702, 437 N.E.2d 514.

Where a claim does not obviously sound in tort, we have examined the nature of the underlying action to determine whether a statute of repose applies. See Anthony's Pier Four, Inc. v Crandall Dry Dock Eng'rs, Inc., 396 Mass. 818, 823, 489 N.E.2d 172 (1986) (court must look to "gist of the action" to determine whether claim is based in contract or tort [citation omitted] ); McDonough v. Marr Scaffolding Co., 412 Mass. 636, 639, 591 N.E.2d 1079 (1992) (breach of warranty claims that sound in tort, not contract, are barred by statute of repose); Dighton v. Federal Pac. Elec. Co., 399 Mass. 687, 691 n.6, 506 N.E.2d 509, cert. denied, 484 U.S. 953, 108 S.Ct. 345, 98 L.Ed.2d 371 (1987) (claim for breach of warranty states cause of action which sounds, like negligence, in tort and not in contract); Klein, 386 Mass. at 719, 437 N.E.2d 514 (warranty claim alleged only that defendant promised to "exercise [the] standard of reasonable care required of members of his profession" therefore negligence and warranty claims essentially alleged same elements); Coca-Cola Bottling Co. of Cape Cod v. Weston & Sampson Eng'rs, Inc., 45 Mass. App. Ct. 120, 124, 695 N.E.2d 688 (1998) (statute of repose applies where implied warranty claim based in tort).

Bridgwood argues, relying on Kattar v. Demoulas, 433 Mass. 1, 739 N.E.2d 246 (2000), that because the relief available under G. L. c. 93A is "sui generis," neither wholly tortious nor wholly contractual in nature, the statute of repose does not apply. Id. at 17, 739 N.E.2d 246, quoting Greenfield Country Estates Tenants Ass'n, Inc. v. Deep, 423 Mass. 81, 88, 666 N.E.2d 988 (1996). Bridgwood also argues that a violation of G. L. c. 142A, § 17 (10), constitutes a per se violation of G. L. c. 93A and, as such, it is not precluded by the statute of repose. Thus, according to Bridgwood, we need not be concerned with whether the underlying action sounds in tort because G. L. c. 93A takes us out of that orbit. The language relied on by Bridgwood from Kattar, a case which did not concern the statute of repose, does not prevent a court from looking to the substance of the action to determine whether it sounds in tort. Stated another way, it does not permit a plaintiff to avoid the statute of repose by relabeling what is essentially a tort claim as a claim under G. L. c. 93A. Cf. Anthony's Pier Four, Inc., 396 Mass. at 823, 489 N.E.2d 172, quoting Hendrickson v. Sears, 365 Mass. 83, 85, 310 N.E.2d 131 (1974) ("A plaintiff may not ... escape the consequences of a statute of repose ... on tort actions merely by labelling the claim as contractual. The court must look to the 'gist of the action' ").

Recognizing that G. L. c. 260, § 2B, applies only to actions in tort, the motion judge analogized the claim to an action for an alleged breach of implied warranty. Although an untimely action for breach of an implied warranty is barred where the "breach of warranty claims essentially allege the same elements as the negligence claims," McDonough, 412 Mass. at 642, 591 N.E.2d 1079, this is not the case with an action for breach of an express warranty, which is an action in contract. Anthony's Pier Four, Inc., 396 Mass. at 822, 489 N.E.2d 172. In determining whether a given case is an action in tort governed by the statute of repose, we "look to the 'gist of the action.' " Id. at 823, 489 N.E.2d 172, quoting Hendrickson, 365 Mass. at 85, 310 N.E.2d 131. A key difference between an action in tort and an action in contract is that in the latter, "the standard of performance is set by the defendants' promises, rather than imposed by law." Anthony's Pier Four, Inc., supra at 822, 489 N.E.2d 172, citing W.L. Prosser & W.P. Keeton, Torts § 92, at 656, 657 (5th ed. 1984). Because a claim for breach of express warranty, unlike a negligence claim, requires a plaintiff to prove "that the defendant promised a specific result," we held that § 2B did not apply to such a claim. Anthony's Pier Four, Inc., supra at 823, 489 N.E.2d 172.

Similarly, there are a number of Appeals Court cases where a plaintiff has alleged that a contractor has violated G. L. c. 93A, that use "gist of the action" to determine whether the statute of repose applies. For example, in Kelley v. Iantosca, 78 Mass. App. Ct. 147, 935 N.E.2d 783 (2010), the Appeals Court held that, to the extent the plaintiff alleged that the defendants violated G. L. c. 93A through their acts and omissions during the construction of his house, the claim was barred by the statute of repose, for "those allegations are sufficiently tort-like to bring them within the statute's ambit." Id. at 154, 935 N.E.2d 783, citing Beaconsfield Townhouse Condominium Trust v. Zussman, 49 Mass. App. Ct. 757, 761 n.12, 733 N.E.2d 141 (2000). See Fine v. Huygens, DiMella, Shaffer & Assocs., 57 Mass. App. Ct. 397, 404, 783 N.E.2d 842 (2003) (statute of repose applies to G. L. c. 93A claims that are "tort-like in nature"); Rosario v. M.D. Knowlton Co., 54 Mass. App. Ct. 796, 802-803, 767 N.E.2d 1126 (2002), quoting McDonough, 412 Mass. at 642, 591 N.E.2d 1079 ("[A]ctions for breach of implied warranty are also barred ... when the warranty claims 'essentially allege the same elements as the negligence claims' ").

Applying these principles here, we conclude that Bridgwood's claim is likewise barred by the statute of repose. Bridgwood's claim is essentially that the defendants failed to perform the electrical work in compliance with the standards set forth in G. L. c. 142A, § 17 (10). It is indistinguishable from a claim of negligence. Therefore, it sounds in tort and, having been commenced well beyond the six-year deadline, is barred by G. L. c. 260, § 2B. Were we to hold otherwise, no contractor would ever be able to "put a project to rest."

We also have followed this analytic framework when determining whether G. L. c. 228, § 1, which states that a tort survives a plaintiff's death, applied to claims presented under G. L. c. 93A. In Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165, 178-179, 987 N.E.2d 1247 (2013), we concluded that a G. L. c. 93A claim survived the plaintiff's death because it was, in substance, an action in tort. Thus, even though G. L. c. 93A is not referenced in G. L. c. 228, § 1, the statute applied to the plaintiff's claim and the estate could continue the action.

It is not apparent that, by enacting G. L. c. 142A, § 17, and making the building laws enforceable through G. L. c. 93A, the Legislature intended to deprive contractors of the protection of the statute of repose. General Laws c. 260, § 2B, the statute of repose applicable to building professionals, was enacted by the Legislature in 1968 and amended in 1973 and 1984. See St. 1968, c. 612; St. 1973, c. 777, § 2; St. 1984, c. 484, § 53. As recently as 2018, the Legislature had proposed amendments to the statute to specifically include condominiums. See 2018 House Doc. No. 4236. The consumer protection act, G. L. c. 93A, was passed by the Legislature in 1967, see St. 1967, c. 813, § 1, and various sections have been amended throughout the years. Section 2 was last amended in 1978. See St. 1978, c. 459, § 2. Section 9 was amended in 1970, 1971, 1973, 1978, 1979 (twice), 1986, 1987, 1989, and 2004. See St. 1970, c. 736, §§ 1, 2; St. 1971, c. 241; St. 1973, c. 939; St. 1978, c. 478, §§ 45, 46; St. 1979, c. 72, § 1; St. 1979, c. 406, §§ 1, 2; St. 1986, c. 557, § 90; St. 1987, c. 664, § 3; St. 1989, c. 580, § 1; St. 2004, c. 252, § 1.

As we have already discussed, G. L. c. 260, § 2B, was enacted to shield contractors from the burden of liability throughout their careers and into retirement for work that had long since been completed. "There comes a time when [a defendant] ought to be secure in his reasonable expectation that the slate has been wiped clean of ancient obligations, and he ought not to be called on to resist a claim 'when evidence has been lost, memories have faded, and witnesses have disappeared.' " Klein, 386 Mass. at 709, 437 N.E.2d 514, quoting Rosenberg, 61 N.J. at 201, 293 A.2d 662. Had the Legislature intended to remove this shield and expose contractors to indefinite liability for claims arising long after the completion of their work, it would have said so explicitly.

Conclusion. In sum, Bridgwood's G. L. c. 93A claim is sufficiently tort-like to bring it within the ambit of the statute of repose. Because this action was commenced more than six years after the work was completed, it is barred by G. L. c. 260, § 2B, and the complaint was properly dismissed.

Judgment affirmed.

General Laws c. 260, § 5A, provides that "[a]ctions arising on account of violations of any law intended for the protection of consumers, including but not limited to ... [G. L. c. 93A (c. 93A) ] ... whether for damages, penalties or other relief and brought by any person, including the attorney general shall be commenced only within four years next after the cause of action accrues." Section 5A is solely a statute of limitations -- it contains no statute of repose. In contrast, G. L. c. 260, § 2B, which governs actions "of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property," and G. L. c. 260, § 4, which governs actions "of contract or tort for malpractice" against physicians, contain both a statute of limitations and a statute of repose. Because a statute of repose is, after all, a creature of statute and not of the common law, and because the Legislature did not choose in G. L. c. 260, § 5A, to bar consumers through a statute of repose from bringing c. 93A claims that are timely under the statute of limitations, I dissent.

A statute of limitations limits the time in which a plaintiff may bring an action "after the cause of action accrues." See G. L. c. 260, §§ 2B, 5A. A cause of action does not accrue until a plaintiff "knows or reasonably should know that he or she has suffered harm and that the harm was caused by the [defendant's] conduct." Parr v. Rosenthal, 475 Mass. 368, 378, 57 N.E.3d 947 (2016). Consequently, the statute of limitations clock does not begin to run until a plaintiff knows, or should know, that he or she has suffered an injury arising from the defendant's conduct. See id. See also Hendrickson v. Sears, 365 Mass. 83, 91, 310 N.E.2d 131 (1974). If that knowledge is delayed because the defendant has fraudulently concealed the injury, or otherwise misled the plaintiff regarding the cause of his or her injury, the clock is tolled until the plaintiff is put on reasonable notice of the defendant's responsibility for his or her injury. See Hays v. Ellrich, 471 Mass. 592, 603, 31 N.E.3d 1064, cert. denied, --- U.S. ----, 136 S.Ct. 503, 193 L.Ed.2d 396 (2015). The statute of limitations for actions of tort for damages arising out of any negligence in the design, planning, improvement, or construction of real property is three years. See G. L. c. 260, § 2B. The statute of limitations for actions arising from a violation of a law intended for the protection of consumers, including c. 93A, is four years. See G. L. c. 260, § 5A. Where the same conduct constitutes both a common-law tort under G. L. c. 260, § 2B, and a violation of a consumer law such as c. 93A under G. L. c. 260, § 5A, the plaintiff is entitled to the four-year statute of limitations under § 5A, regarding the cause of action arising from the violation of c. 93A. See Passatempo v. McMenimen, 461 Mass. 279, 297, 960 N.E.2d 275 (2012) ("the mere fact that the G. L. c. 93A violations alleged would also support a common-law tort claim does not make them subject to the shorter, three-year limitation period"). See also Fine v. Huygens, DiMella, Shaffer & Assocs., 57 Mass. App. Ct. 397, 404-405, 783 N.E.2d 842 (2003) ("We reject the contention that a c. 93A claim necessarily fails because the underlying claim upon which it depends has been dismissed as not timely filed.... The c. 93A claim need only be dismissed if, under c. 93A's four-year limitations period ..., it was not timely filed" [citation omitted] ).

Under a statute of repose, however, the repose clock starts to run, not at the time the cause of action accrues, but at a time established by statute. For common-law tort actions under G. L. c. 260, § 2B, the clock starts to run from the earlier of the date of "the opening of the improvement to use" or the date the owner takes possession of the improvement for occupancy after its "substantial completion." Consequently, under G. L. c. 260, § 2B, even if the limitations clock has yet to accrue because the injury from a contractor's misconduct is not yet apparent, or because the contractor has concealed the misconduct from the property owner, the property owner is barred from bringing any tort claim after the six-year statute of repose period. See Sullivan v. Iantosca, 409 Mass. 796, 798, 569 N.E.2d 822 (1991) (" Section 2B, in its statute of repose aspect, forbids us from considering the fact that a plaintiff did not discover or reasonably could not have discovered the harm before the six-year period of the statute of repose expired," and "[w]e similarly reject the plaintiff's claim that the fraudulent concealment provisions of G. L. c. 260, § 12... [and any common law estoppel] prevent [the statute of repose in G. L. c. 260, § 2B,] from applying here" [citations omitted] ). In short, as is alleged in this case, the property owner may be barred by the statute of repose from bringing a claim before he or she knows, or reasonably should know, that he or she even has a claim -- even where the defendant has fraudulently concealed the claim from the plaintiff. Consequently, a statute of repose reflects a legislative decision that it is more important to protect certain defendants from old claims than it is to protect the right of plaintiffs to enforce otherwise valid and timely claims.

The statute of repose was added to G. L. c. 260, § 2B, in 1968. See St. 1968, c. 612. At that time, it could not have been intended to cover claims under c. 93A, because there was no private right of action for consumers under c. 93A, § 9, until 1969. See St. 1969, c. 690.

General Laws, c. 260, § 5A, which established a four-year statute of limitations for actions claiming a violation of c. 93A, was enacted in 1975. See St. 1975, c. 432, § 2. By 1975, it was well established that new home construction claims may fall within the rubric of G. L. c. 93A, § 9, because in 1971, § 9 was amended to protect any person injured through an unfair or deceptive act or practice who "purchases or leases goods, services or property, real or personal" (emphasis added). See St. 1971, c. 241, amending St. 1970, c. 736, § 1. This revision of § 9 was meant specifically to extend the scope of c. 93A private causes of action to the sale of real estate, which is made apparent by the act's title: "An Act extending certain equitable remedies under the consumer protection law to certain aggrieved persons who purchased real estate for personal or family use." See St. 1971, c. 241. At the time, then Governor Francis W. Sargent submitted official remarks, stating that the "bill will help answer complaints of those who have been victimized by the few fly-by-night builders who try to leave expensive corrective repairs to the hapless new homeowner." See 1971 House Doc. No. 5221. Even though c. 93A claims were recognized as potentially including actions alleging deficiency or neglect in the design and construction of new homes, no statute of repose was included in G. L. c. 260, § 5A, to protect those responsible for the design or construction of defective homes.

In 1991, the Legislature enacted G. L. c. 142A. See St. 1991, c. 453. Section 17 protects consumers from unsavory contractors and subcontractors by identifying seventeen types of prohibited acts by contractors and subcontractors, including violating the building laws of the Commonwealth or of any political subdivision, and sets forth three separate and distinct avenues to enforce these prohibitions. See G. L. c. 142A, § 17. First, the statute provides that any violation of § 17"shall constitute an unfair or deceptive act under the provisions of [c. 93A]," and thus creates a private right of action under c. 93A, § 9, for such violations. See G. L. c. 142A, § 17. Second, the statute provides that "[v]iolations of this section shall subject the violator to the administrative sanctions of [ G. L. c. 142A, § 18 ]," which include revocation or suspension of the contractor's or subcontractor's certificate of registration, and administrative penalties of up to $2,000 for each violation. See G. L. c. 142A, §§ 17, 18. Third, the statute provides that "[v]iolations of this section shall subject the violator to ... criminal prosecution as prescribed in [ G. L. c. 142A, § 19 ]," which authorizes the Attorney General or any district attorney to prosecute any person who knowingly and wilfully violates any provision of § 17 and, unless another statute provides for a greater penalty, subjects the violator upon conviction to imprisonment of up to one year or a fine of up to $2,000, or both, in addition to any administrative penalty. See G. L. c. 142A, §§ 17, 19.

There is no reason to believe that the Legislature intended to limit the private right of action to remedy violations of G. L. c. 142A, § 17, through civil actions under c. 93A by imposing a statute of repose. Not only did the Legislature fail to include any statute of repose in G. L. c. 260, § 5A, but it deemed the conduct in G. L. c. 142A, § 17, so serious that it provided three separate and distinct means to enforce any violation, including criminal prosecution. Why would the Legislature seek to protect those who engaged in such unfair and deceptive acts from c. 93A actions brought within the statute of limitations by granting them a statute of repose that could potentially shield such violations from any private cause of action by injured consumers? And why would the Legislature provide an incentive to those who engage in such unfair and deceptive acts to conceal those acts from the consumer until six years have passed, so that the statute of repose could thwart a consumer from obtaining a remedy for his or her injury under c. 93A?

The court's opinion appears to rest on four Appeals Court opinions for its conclusion that we look "to the gist of the action to determine whether the statute of repose applies." Ante at 355, 105 N.E.3d at 230. But a closer look at these cases demonstrates that they offer scant support for this conclusion. In the earliest of the four cases, Beaconsfield Townhouse Condominium Trust v. Zussman, 49 Mass. App. Ct. 757, 733 N.E.2d 141 (2000), the Appeals Court ordered all the claims, including the c. 93A claim, dismissed not because of the statute of repose, but because of the statute of limitations. See id. at 757, 733 N.E.2d 141 ("We decide that the grounds for the causes of action against the defendants were knowable by the trust as early as February, 1978, and were barred by the applicable statutes of limitations by the time the complaint was filed in 1986 against the residual defendants. Accordingly, we reverse the judgment"). Although the Appeals Court declared that all the claims against the relevant defendants, including the c. 93A claims, were "in the nature of tort" in that they all relied on alleged misrepresentations regarding the quality of the roof that was delivered, the court recognized that the c. 93A claims were subject to the four-year statute of limitations under G. L. c. 260, § 5A, not the three-year statute of limitations under G. L. c. 260, § 2B. See id. at 760-761 & n.12, 733 N.E.2d 141. The term "repose" was never used in the opinion.

In the second opinion, Rosario v. M.D. Knowlton Co., 54 Mass. App. Ct. 796, 797, 767 N.E.2d 1126 (2002), the plaintiff was injured by a hydraulic lift that had been installed a decade earlier in a manufacturing facility, and brought claims against the manufacturer and distributor of the hydraulic lift alleging negligence, breach of the express and implied warranty, and unfair or deceptive acts or practices, in violation of c. 93A. The motion judge granted summary judgment for the defendants on all claims, finding that the claims were barred under the statute of repose because the lift was "an improvement to real property" and, therefore, the claims were governed by the statute of repose in G. L. c. 260, § 2B. See id. at 797, 800, 767 N.E.2d 1126. The issues on appeal were whether the lift (which was permanently installed at the manufacturing facility) constituted "an improvement to real property," and whether the defendants were "protected actors" under § 2B. See id. at 799-800, 767 N.E.2d 1126. The Appeals Court ruled that the lift was an improvement to real property, and that the defendants were protected actors, accordingly affirming the grant of summary judgment. See id. at 800-802, 767 N.E.2d 1126. There is no indication from the opinion that the plaintiff challenged the application of the statute of repose in G. L. c. 260, § 2B, to his c. 93A claim. As a result, all that the Appeals Court said as to that claim was that the plaintiff's "c. 93A count is premised on claims dismissed on summary judgment. This count falls with them." Id. at 803, 767 N.E.2d 1126.

In the third opinion, Fine, 57 Mass. App. Ct. at 404, 783 N.E.2d 842, the Appeals Court determined that each of the c. 93A claims was based on an alleged breach of the implied warranty of merchantability, and were therefore "tort-like in nature." But the Appeals Court nonetheless declared that the claims asserting unfair and deceptive trade practices under c. 93A were governed by the four-year statute of limitations period in § 5A, not the three-year limitations period for torts, and expressly rejected "the contention that a c. 93A claim necessarily fails because the underlying claim upon which it depends has been dismissed as not timely filed." Id. at 404-405, 783 N.E.2d 842. The court provided no explanation as to why it determined that the statute of repose in G. L. c. 260, § 2B, applied to claims under c. 93A that are "tort-like in nature," when the statute of limitations in G. L. c. 260, § 5A, not the limitations period in G. L. c. 260, § 2B, applied to these same claims. See id. at 404, 783 N.E.2d 842.

The fourth opinion, Kelley v. Iantosca, 78 Mass. App. Ct. 147, 935 N.E.2d 783 (2010), cites both Beaconsfield Townhouse Condominium Trust and Fine for its conclusory declaration that the c. 93A "claim is barred by the statute of repose, for although focusing on c. 93A, those allegations are sufficiently tort-like to bring them within [ G. L. c. 260, § 2B's] ambit." Kelley, supra at 154, 935 N.E.2d 783.

These cases have led the court to conclude that, if a c. 93A claim is "tort-like" in nature, the statute of repose in § 2B applies. But we only look to the nature of the underlying claim where the claim arises under the common law. Thus, where a plaintiff frames what is essentially a common-law claim sounding in tort as a contract claim in an attempt to obtain the benefit of the six-year statute of limitations under G. L. c. 260, § 2 -- rather than the three-year statute of limitations under G. L. c. 260, § 2A (for actions in tort or contract to recover for personal injuries, and actions in replevin) or § 2B -- we "look to the 'gist of the action' " and apply the three-year statute of limitations applicable to torts. See Anthony's Pier Four, Inc. v. Crandall Dry Dock Eng'rs, Inc., 396 Mass. 818, 823, 489 N.E.2d 172 (1986), quoting Hendrickson, 365 Mass. at 85, 310 N.E.2d 131 ("A plaintiff may not ... escape the consequences of a statute of repose or statute of limitations on tort actions merely by labelling the claim as contractual. The court must look to the 'gist of the action' "). But where the underlying claim is a "tort-like" statutory claim brought under c. 93A, our case law makes clear that we apply the four-year statute of limitations specified in G. L. c. 260, § 5A, see supra, not the three-year statute of limitations in G. L. c. 260, § 2A or 2B. See Passatempo, 461 Mass. at 297, 960 N.E.2d 275 ; Beaconsfield Townhouse Condominium Trust, 49 Mass. App. Ct. at 761, 733 N.E.2d 141. In doing so, we not only respect the statutory mandate in G. L. c. 260, § 5A, but also recognize that a c. 93A claim "is neither wholly tortious nor wholly contractual in nature, and is not subject to the traditional limitations of preexisting causes of action." Kattar v. Demoulas, 433 Mass. 1, 12, 739 N.E.2d 246 (2000), quoting Slaney v. Westwood Auto, Inc., 366 Mass. 688, 704, 322 N.E.2d 768 (1975). In addition, where we apply the statute of limitations in G. L. c. 260, § 2B, we also apply the statute of repose in § 2B. See Kelley, 78 Mass. App. Ct. at 150, 935 N.E.2d 783 ; Fine, 57 Mass. App. Ct. at 401-404, 783 N.E.2d 842. It does not make sense to exempt c. 93A claims from the statute of limitations in § 2B and yet still subject such claims to the statute of repose in § 2B. Where the Legislature did not choose to include a statute of repose under G. L. c. 260, § 5A, to shield those who engaged in unfair and deceptive acts in violation of c. 93A from six-year old claims that are timely brought under the statute of limitations, it is not the appropriate role of this court to do it ourselves. Because this opinion, in effect, adds a statute of repose to G. L. c. 260, § 5A, for c. 93A claims to protect contractors and subcontractors from liability for unfair and deceptive acts that arise out of deficiency or neglect in their design, planning, or construction, and because this is a usurpation of a distinctly legislative prerogative, I dissent.

      Terry Bridgwood filed a notice of appeal as to Caggiano and a separate notice of appeal as to A.J. Wood Construction, Inc., and Smith. We consolidated the two appeals when we transferred them.

      We acknowledge amicus briefs submitted by Massachusetts Defense Lawyers Association, Eastern Massachusetts Chapter of the National Association of the Remodeling Industry, and New England Legal Foundation.

      Statutes of repose were a legislative response to the expanded liability faced by the building industry. One such change involved the concept of privity. Daugherty & Flora, Survey of Recent Developments in Real Property Law, 46 Ind. L. Rev. 1199, 1231-1232 (2013). The liability of building professionals had been strictly limited based on English common-law rules of privity, which were based on contract and terminated upon completion of the improvements. Id. at 1231. In the early Twentieth Century, courts began to abolish the privity requirement. Id. Another change was the adoption of the discovery rule of accrual in numerous jurisdictions. Bain, Determining the Preemptive Effect of Federal Law on State Statutes of Repose, 43 U. Balt. L. Rev. 119, 126 (2014). As a result, statutes of repose were adopted in forty-seven States and the District of Columbia. Daugherty & Flora, supra at 1231-1232.

      Bridgwood's G. L. c. 93A claims arising out of the defendants' alleged misrepresentations, however, are not barred. Kelley v. Iantosca, 78 Mass. App. Ct. 147, 154-155, 935 N.E.2d 783 (2010), discussing Sullivan v. Iantosca, 409 Mass. 796, 799-800, 569 N.E.2d 822 (1991). " 'Section 2B [of G. L. c. 260] grants protection to designers, planners, builders, and the like.... It does not do so for people who sell real estate.' ... Thus, while G. L. c. 260, § 2B, bars any claim arising out of what [the defendants] did when they built the house, it does not bar claims under G. L. c. 93A arising out of misrepresentations they made about what they did." Kelley, supra at 154-155, 935 N.E.2d 783, quoting Sullivan, supra at 799, 569 N.E.2d 822.

      General Laws c. 142A, § 17, was enacted in 1991, and amended in 1998 and 2009. See St. 1991, c. 453; St. 1998, c. 161, § 507; St. 2009, c. 4, §§ 20, 21.

      In Commonwealth v. Owens-Corning Fiberglas Corp., 38 Mass. App. Ct. 600, 601, 650 N.E.2d 365 (1995), the Appeals Court held that the asbestos revival statute, which established time periods during which the Commonwealth and its subdivisions could bring actions which would otherwise be time barred by the statute of repose, revived claims against installers of asbestos notwithstanding that the revival statute did not mention the statute of repose. The court reasoned that the phrase is "[s]o foreign to legislative usage" that the Legislature is not expected "to use it or refer to it when enacting [statutes] specially designed to breathe new life ... into liability that would otherwise have been extinguished by passage of time." Id. at 603, 650 N.E.2d 365. The court noted that "[i]t is also worth bearing in mind that the Commonwealth is not bound by a statute of limitations unless it expressly consents to be bound by such a statute. Id., citing United States v. Commissioner of Banks, 254 Mass. 173, 176, 149 N.E. 883 (1925), and Boston v. Nielsen, 305 Mass. 429, 430, 26 N.E.2d 366 (1940). The statutory expression of that principle appears in G. L. c. 260, § 18, which provides that "[t]he limitations of the preceding sections of this chapter ... shall apply to actions brought by or for the [C]ommonwealth." In thus making itself subject to the bars of c. 260, the consent section does not distinguish between the conventional statutes of limitations that appear in other sections of c. 260 and the statute of repose, which appears in § 2B.

      If the Legislature desires to narrow the applicability of the repose period -- for instance, by amending G. L. c. 260, § 2B, to state that it does not apply to construction claims brought under G. L. c. 142A, § 17 (10), or G. L. c. 93A -- it may do so. Such is the province of the Legislature, not the courts. We decline to hold that the § 2B statute of repose has been superseded "in the absence of express words to that effect." Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585, 416 N.E.2d 1373 (1981). Likewise, "[i]mplied repeal of a statute is disfavored," and we avoid doing so "unless [that statute] 'is so repugnant to, and inconsistent with, the later enactment that both cannot stand.' " Commonwealth v. Harris, 443 Mass. 714, 725, 825 N.E.2d 58 (2005), quoting LaBranche v. A.J. Lane & Co., 404 Mass. 725, 728, 537 N.E.2d 119 (1989). This is not the case with the statutes at issue.

      The language of G. L. c. 93A, § 9, has since been amended, and now § 9 affords a remedy to "[a]ny person ... who has been injured by another person's use or employment of any method, act or practice declared to be unlawful by section two or any rule or regulation issued thereunder ...." See St. 1979, c. 406, § 1. This amendment broadens even further the protection afforded to persons injured through an unfair or deceptive act or practice, insofar as § 9"may no longer contain limits based on the nature of the transaction." Murphy v. Charlestown Sav. Bank, 380 Mass. 738, 743, 405 N.E.2d 954 (1980). See id. at 743 n.7, 405 N.E.2d 954.

      The court's opinion also looks for support from Klairmont v. Gainsboro Rest., Inc., 465 Mass. 165, 178-179, 987 N.E.2d 1247 (2013), where we held that a c. 93A claim survived the death of the plaintiff under the Massachusetts survival statute, G. L. c. 228, § 1. Section 1 makes no reference to c. 93A claims, but did provide for the survival of " '[a]ctions of tort for ... other damage to the person." Klairmont, supra at 179, 987 N.E.2d 1247. We held that the c. 93A claim, which rested on persistent and knowing violations of the building code that created hazardous conditions in a bar and restaurant, "is substantively akin to the types of torts within the scope of G. L. c. 228, § 1, and that, therefore, the claim survives." Id. In Klairmont, we interpreted a statute (G. L. c. 228, § 1 ) that we described as "flexible" and "dynamic," see id., quoting Harrison v. Loyal Protective Life Ins. Co., 379 Mass. 212, 215, 396 N.E.2d 987 (1979), to permit the survival of a c. 93A claim after the death of the plaintiff. Our ruling in that case does not provide support for this court's attempt to deprive the plaintiff of her ability to bring a c. 93A claim that is timely under the statute of limitations.


source: Caselaw Access Project

license: Public Domain

text:
    COMMONWEALTH v. Carlos ALVAREZ, Jr.
    SJC-12414
    Supreme Judicial Court of Massachusetts.
    August 29, 2018
    Matthew J. Koes for the defendant.
    Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.
    RESCRIPT
    Following a jury trial in Superior Court, the defendant, Carlos Alvarez, Jr., was convicted of possession of cocaine with intent to distribute, as a subsequent offense, and criminal trespass. The defendant was arrested for selling cocaine in a grocery store parking lot. He unsuccessfully moved to suppress evidence related to his cellular telephone (cell phone) that had been lawfully seized during a search incident to his arrest. After trial, the defendant appealed to the Appeals Court, challenging the denial of his motion to suppress and his convictions, and we granted his application for direct appellate review.
    Evidence presented at the hearing on the motion to suppress. A police officer observed the defendant conducting a hand-to-hand drug transaction in the parking lot behind a grocery store. The officer approached the defendant as he was completing the sale. The defendant fled the scene shortly after the officer approached him, but he was apprehended by another officer moments later. After the defendant was arrested, the officer who had observed the drug transaction searched the defendant's pockets and recovered money and a cell phone. The officer also observed a plastic bag containing a small, rock-like object -- later determined to be cocaine -- on the ground in the area where the defendant had been on the ground.
    Upon recovery of the cell phone from the defendant's pocket during the arrest, the officer did not attempt to open it, look into it, or press any buttons. At some unspecified point after the officer returned to the police station, the cell phone rang; the officer glanced at the "ringing" cell phone and saw a text message on its outer screen. A Superior Court judge denied the defendant's motion to suppress the cell phone and the text message.
   The defendant contends that by glancing at the ringing cell phone and observing a text message on its outer screen, the officer conducted a search. In a motion to suppress, the defendant bears the initial burden of establishing that a search occurred pursuant to the Fourth Amendment to the United States Constitution. See Commonwealth v. D'Onofrio, 396 Mass. 711, 714-715, 488 N.E.2d 410 (1986). See also Commonwealth v. Boyarsky, 452 Mass. 700, 708, 897 N.E.2d 574 (2008), quoting Commonwealth v. Netto, 438 Mass. 686, 697, 783 N.E.2d 439 (2003) ("burden is initially on the defendant[ ] to demonstrate that [he] had a reasonable expectation of privacy .... Thus, if the record is unclear ... it is the defendant[ ] -- not the Commonwealth -- who [has] failed to meet [his] burden of proof ...").

The record before us presents a dearth of evidence concerning the cell phone. It is clear, however, that the defendant's cell phone was seized during a valid search incident to his lawful arrest. See Commonwealth v. Mauricio, 477 Mass. 588, 592, 80 N.E.3d 318 (2017). At some point after the defendant's cell phone was lawfully seized and the officer returned to the police station, the cell phone rang. In response, the officer glanced at the outer screen of the ringing cell phone, where he observed the text message at issue. There was no evidence that the officer opened the cell phone, manipulated it to view the text message, or otherwise perused its contents. Because the record is devoid of evidence suggesting that the officer's observation of the outside of the defendant's cell phone constituted a search, the defendant did not establish that a search occurred. Accordingly, within this factual vacuum, we cannot say that the judge erred in denying the motion to suppress.

Evidence at trial. The officer's testimony about the drug deal substantially conformed to the evidence presented at the hearing on the motion to suppress. The officer observed the defendant meeting with another individual and conducting a hand-to-hand drug transaction in the parking lot behind a grocery store. Several "no trespassing" signs were prominently posted around that area of the parking lot. As the defendant was completing the drug deal, the officer approached the defendant. The defendant fled the scene but was arrested moments later. The officer recovered money and a cell phone from the defendant's pockets and observed a plastic bag containing cocaine fall from the defendant's pants.

The officer testified that the cell phone recovered from the defendant was a "flip phone." As the officer was writing his report at the police station, he heard the defendant's cell phone ring. In response, he glanced at its outer screen and saw a text message: "N word, I need some shit." The officer testified that he had not opened the cell phone or otherwise manipulated it to view the message appearing on the outer screen. The cell phone was admitted in evidence.

Another officer testified that individuals looking to buy drugs will often contact a drug dealer through text message, and use coded words indicating that the person wants to meet to purchase drugs. That officer testified that a person found in possession of one small rock of cocaine, multiple twenty dollar bills, and a cell phone with a coded text message is more consistent with an individual dealing drugs than a personal user.

Testimony concerning the text message. The defendant principally claims that the officer's testimony about the content of the text message constituted impermissible hearsay and should not have been admitted. However, "the words used to effectuate the commission of a crime, or to make a contractual promise or describe its terms, or to form a criminal conspiracy or set forth its aims" are legally operative words that do not constitute hearsay. Commonwealth v. Purdy, 459 Mass. 442, 452-453, 945 N.E.2d 372 (2011). See Mass. G. Evid. § 801(c) (2018). In the same way that statements "compris[ing] a solicitation of a sexual act, including any negotiations regarding the price or services," are legally operative words, Purdy, supra at 452, 945 N.E.2d 372, a statement in a text message asking to buy drugs is composed of the words of a crime and does not constitute hearsay. Accordingly, there was no error in admitting the testimony.

Criminal trespass. The defendant contends that there was insufficient evidence to support his conviction of criminal trespass. General Laws c. 266, § 120, provides:

"Whoever, without right enters or remains in or upon the ... improved or enclosed land ... of another ... after having been forbidden so to do by the person who has lawful control of said premises, whether directly or by notice posted thereon, ... shall be punished ...."

The phrase " 'without right' ... connote[s] the absence of any right, permission, or license recognized by law as permitting an entry into an area described by the statute." Commonwealth v. Wolf, 34 Mass. App. Ct. 949, 951, 614 N.E.2d 679 (1993), citing Hurley v. Hinckley, 304 F.Supp. 704, 710 (D. Mass. 1969), aff'd sub nom. Doyle v. O'Brien, 396 U.S. 277, 90 S.Ct. 603, 24 L.Ed.2d 469 (1970). In the circumstances of this case, there was insufficient evidence to establish that the defendant had entered onto the grocery store property "without right." Similarly, as it related to the facts before us, there is nothing suggesting that once the defendant entered onto the premises, he was provided adequate notice that he had been forbidden to remain thereon. Accordingly, we conclude that there was insufficient evidence in this case to support the defendant's conviction of criminal trespassing.

The defendant's conviction of possession of cocaine with intent to distribute is affirmed. The defendant's conviction of criminal trespass is reversed.

So ordered.

      There was no evidence concerning the officer's possession of the cell phone after the arrest, or anything to suggest that his possession of the cell phone was no longer constitutionally justified.

      The trial transcript indicates that this is how the officer described the text message that he observed.

      Although he did not raise the issue at trial, the defendant now argues that this testimony was not sufficiently authenticated. To authenticate evidence, the proponent of the evidence must make a showing sufficient "to support a finding that the item is what the proponent claims it is." Mass. G. Evid. § 901(a) (2018). See Commonwealth v. Purdy, 459 Mass. 442, 447, 945 N.E.2d 372 (2011). Here, there was sufficient evidence indicating that the evidence presented was what it purported to be: a brief text message on the outer screen of the defendant's cell phone.

      The defendant also contends that testimony about the text message violated the best evidence rule. The defendant did not raise this objection at trial and, therefore, deprived the Commonwealth of the opportunity to produce the original writing, Mass. G. Evid. § 1002 (2018), "or show a sufficient excuse for its nonproduction." Commonwealth v. Ocasio, 434 Mass. 1, 6, 746 N.E.2d 469 (2001). Even if the best evidence rule applied here, we cannot say that any potential violation created a substantial risk of a miscarriage of justice.


author: GAZIANO, J.

text:
    MIRAMAR PARK ASSOCIATION, INC., & others v. TOWN OF DENNIS.
    SJC-12449
    Supreme Judicial Court of Massachusetts, Barnstable..
    Argued March 8, 2018 Decided August 30, 2018
    Gregg J. Corbo, Boston, for the defendant.
    Brian J. Wall, Boston, for the plaintiffs.
    Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

      Ronald J. Mastrocola, as trustee of the Judy Mastrocola Qualified Personal Residence Trust; Ellen Rooney; Mary E. Pendergast Dwyer, as trustee of Miramar Realty Trust; Philip Ryan; Robert S. Crespi and Louise M. Crespi, as trustees of the Crespi Dennisport Realty Trust; Timothy F. Keefe; Anne M. Keefe; Joseph F. Lawlor; Susan D. Lawlor; Daniel T. Bagley; Maryanne T. Bagley; Stephen A. Sousa; Susan E. Sousa; Robert H. Barrows; Clyde N. Grindell, as trustee of the Grindell Nominee Trust; Richard B. McGaughey; Josephine McGaughey; Gregory E. Hayes; Margaret E. Hayes; James T. Lynch; Kathleen Lynch; Mark Scamman; Amy Scamman; Dean Wasniewski; Annemarie Wasniewski; Mitch Breen; and Richard Dieter and Susan Deeter, as trustees of the Miramar Avenue 75 Realty Trust.

   GAZIANO, J.

In this appeal, we are asked to consider whether dredging and beach nourishment projects undertaken by the town of Dennis violated Massachusetts environmental regulations by requiring that materials dredged from the mouth of a tidal river be deposited on a publicly-owned beach, rather than on an adjacent, privately-owned beach. The plaintiffs, homeowners and a homeowners' association, commenced an action in the Superior Court, pursuant to G. L. c. 214, § 7A, against the town, seeking injunctive relief and a declaratory judgment on their claim that the town's actions violated a Department of Environmental Protection (DEP) regulation designed to protect beaches that are downdrift from jetties from loss of sediments caused by the jetties. After both parties filed cross motions for summary judgment, a Superior Court judge concluded that the town's extension of a jetty at the mouth of Swan Pond River in the early 1990s triggered the requirements of 310 Code Mass. Regs. § 10.27 (2014), and allowed the plaintiffs' motion. The judge also issued an injunction permanently requiring the town "periodically [to re]dredge [the river]" and to deposit the dredged material on the plaintiffs' private beach. The town appealed, and we transferred the case from the Appeals Court on our own motion.

We conclude that judgment should not have entered for the plaintiffs, and that judgment instead should have entered for the town. Among other things, the plaintiffs have introduced nothing in the summary judgment record showing that the town's extension of the jetty violated, or even triggered, the requirements of 310 Code Mass. Regs. § 10.27(4)(c). In addition, as the judge found, the town's subsequent dredging of the river did not trigger the requirements of that regulation. Because the plaintiffs would be unable to prove an essential element of their claim at trial, the order of injunction must be vacated, and the judgment allowing summary judgment for the plaintiffs must be reversed.

1. Statutory overview. A number of potentially overlapping statutes and regulations are at issue in this case. Because an understanding of the interrelationships among them is essential to understanding the issues raised, we describe each in some detail.

General Laws c. 214, § 7A, an environmental citizen suit provision, allows a group of at least ten residents of the Commonwealth to file a complaint in the Superior Court when damage to the environment is occurring or is about to occur as a result of an action by, inter alia, a municipality, that is in "violation of a statute, ordinance, by-law or regulation the major purpose of which is to prevent or minimize damage to the environment." See Boston v. Massachusetts Port Auth., 364 Mass. 639, 645, 308 N.E.2d 488 (1974). The statute defines "damage to the environment" as "any destruction, damage or impairment, actual or probable, to any of the natural resources of the [C]ommonwealth, whether caused by the defendant alone or by the defendant and others acting jointly or severally." G. L. c. 214, § 7A.

The wetlands protection act, G. L. c. 131, § 40 (act), "was created to protect wetlands from destructive intrusion," Healer v. Department of Envtl. Protection, 73 Mass.App.Ct. 714, 716, 901 N.E.2d 161 (2009), and, inter alia, governs the dredging of wetlands and lands bordering waters. See G. L. c. 131, § 40. The act requires, in relevant part, that a party wishing to dredge first must file a written notice with a local issuing authority, often, as in this case, a local conservation commission, which exercises local regulatory authority under the act. See G. L. c. 131, § 40. Following a hearing, the authority shall determine if the project affects an area that is "significant to public or private water supply, to the groundwater supply, to flood control, to storm damage prevention, to prevention of pollution, to protection of land containing shellfish, to the protection of wildlife habitat or to the protection of fisheries." Id. If so, the issuing authority issues a written order that "impose[s] such conditions as will contribute to the protection of [these] interests ... and all work shall be done in accordance therewith." Id. No work may be done without "receiving and complying with [this] order of conditions." Id. DEP has promulgated regulations under G. L. c. 131, § 40, to protect wetlands. See 310 Code Mass. Regs. §§ 10.00 (2014). Specifically, 310 Code Mass. Regs. §§ 10.21 - 10.37 are applicable to all dredging covered under G. L. c. 131, § 40. See 310 Code Mass. Regs. § 10.21. These regulations are "performance standards ... intended to identify the level of protection the issuing authority must impose in order to contribute to the protection of the interests of [G. L.] c. 131, § 40." Id. If the issuing authority determines that a project will affect one of the protected interests under the act, the issuing authority must "order specific measures and requirements for each proposed project which will ensure that the project is designed and carried out consistent with the required level of protection," and must memorialize those requirements in an "[o]rder of [c]onditions which is understandable and enforceable." Id.

A number of other State and Federal statutes and regulations concerning water quality also are applicable to the areas at issue in this case. General Laws c. 21, § 27, provides that "[i]t shall be the duty and responsibility of the division [of water pollution control] to enhance the quality and value of water resources and to establish a program for prevention, control, and abatement of water pollution" in the Commonwealth. DEP has issued water quality regulations pursuant to G. L. c. 21, § 27, and G. L. c. 91, §§ 52 - 56. See 314 Code Mass. Regs. §§ 9.00 (2014). Section 9.01(1) of those regulations provides that they "establish[ ] procedures and criteria for the administration of Section 401 of the [F]ederal Clean Water Act, 33 U.S.C. [§] 1251." Section 9.01 (3)(a) of those regulations, in particular, seeks to "protect[ ] the public health and restor[e] and maintain[ ] the chemical, physical, and biological integrity of the water resources of the Commonwealth by establishing requirements, standards, and procedures" for dredging. Title 310 Code Mass. Regs. § 9.40(4)(a) (2017), more specifically, governs the spoils of dredging projects. As relevant here, it provides that "in the case of a publicly-funded dredging project, such material shall be placed on publicly-owned eroding beaches." See id.

Finally, G. L. c. 30B, § 15 (a ) and (b ), of the procurement act, provides that a "governmental body shall dispose of a tangible supply that is no longer useful to the governmental body but having resale or salvage value," through "competitive sealed bids, public auction, or established markets."

2. Background. We recite the facts from the judge's statement of "undisputed facts revealed by the summary judgment record," supplemented by other uncontested facts in the record. See Chin v. Merriot, 470 Mass. 527, 529, 23 N.E.3d 929 (2015).

a. Historic dredging at mouth of Swan Pond River. Plaintiff Miramar Park Association owns lot 88 on Land Court Plan 11503-J, a parcel of land on the Nantucket Sound shoreline in the Dennisport area of the town; lot 88 contains a private beach known as Miramar Beach. The individual plaintiffs own easements appurtenant to their properties for the use of Miramar Beach and the upland area of lot 88 for recreational purposes. Lot 88 is located east of the eastern shore of Swan Pond River and Miramar Road, a few lots east of the mouth of the river as it empties into Nantucket Sound. Lot 87 on Land Court Plan 11503-J, and lot 84 on Land Court Plan 11503-I, formerly owned by the same owner who sold the Miramar Beach parcel to the Miramar Beach Association, lie along the shoreline to the west of lot 88. One of the individual plaintiffs, Michael Breen, owns lot 87, to the east of Miramar Road, and lot 84, to the west of that road. In addition, two other plaintiffs, Annemarie and Dean Wasniewski, hold easements over Lot 87.

On the western side of the Swan Pond River inlet is a stone jetty. The record does not establish when and by whom the jetty was constructed. A study conducted in 2010 by the Woods Hole Group, Inc. (Woods Hole), on behalf of the town commented that the jetty was in existence at least by 1850; a study conducted by a geologist on behalf of the plaintiffs noted that the jetty was constructed between 1935 and 1943. The jetty traps littoral drift material as it is carried along the predominantly west to east direction of the currents in this part of Nantucket Sound. The jetty does not have a sand by-pass system, which would transfer sediment to the eastern side of the inlet. See 310 Code Mass. Regs. § 10.27(4)(c).

The mouth of Swan Pond River periodically becomes partially filled with sand. This results in reduced tidal flow, which leads to algae blooms, fish kills, and foul odors upstream along the river and in Swan Pond. To facilitate boat navigation and improve water flow, the town has conducted periodic dredging operations at the mouth of Swan Pond River since at least 1980. It dredged the entrance to the river in 1980, 1984, 1988, 1997, 1998, 2000, 2010, and 2014. A planned dredging in 2016 did not take place. The locations of the placement of the fill from the three dredges in 1980, 1984, and 1988 are not indicated in the record. Thereafter, the town has placed sediment removed during the dredging at West Dennis Beach, a public beach located approximately three-quarters of a mile west of the jetty; in the area immediately landward of the jetty, to the west of the river; and, in 1996, on Miramar Beach as well as on West Dennis Beach. After the town deposited the spoils on Miramar Beach, the condition of the beach improved. In May, 1990, the town acquired an easement over property near the western mouth of Swan Pond River, three lots from the coastline, along the river's edge, in conjunction with an engineering study and other efforts to improve water flow and navigation on Swan Pond River. The easement over lot 3-A includes the right to access the property for "dredging, rip rap and environmental purposes." At some point in the early 1990s, apparently before October, 1992, the town extended the then existing jetty on the western side of the mouth of the river northward, further upriver, in an effort to prevent the erosion of the western shoreline of the inlet. There is no indication in the summary judgment record whether any permits were obtained for this work from the town's conservation commission or from any relevant State or Federal regulatory body, and, if so, what conditions, if any, were placed on it.

b. 2010 and 2014 dredging and comprehensive permit. There are nineteen public beaches and three rivers within the town's borders. In 2010, in preparation for applying for a comprehensive permit from various local, State, and Federal authorities, the town commissioned a study and report from Woods Hole concerning the comprehensive needs for dredging and beach nourishment throughout the town. The report included a section on Swan Pond River, which noted the need for "a program of maintenance dredging," in intervals of from one to ten years, in order to "maintain adequate tidal circulation within the Swan Pond River." In November, 2010, the plaintiffs commissioned a study of Miramar Beach, with a particular focus on the impact of the jetty on beach erosion. The Woods Hole study was submitted with the town's environmental notification form for an emergency project in 2009 to dredge Swan Pond River and to construct a beach dune at West Dennis Beach. It also was submitted with the town's expanded environmental notification form filed with the Secretary of the Department of Energy and Environmental Affairs in conjunction with the town's "ten-year comprehensive dredging and beach nourishment plan."

Prior to dredging the mouth of Swan Pond River in 2010, the town acquired permits from a number of local, State, and Federal agencies to conduct dredging and beach nourishment specifically at Swan Pond River and West Dennis Beach, respectively.

The town acquired two permits, to dredge the river and to nourish West Dennis Beach, from the conservation commission, pursuant to the wetlands protection act. The commission approved the dredging and beach nourishment projects according to the town's wetlands bylaw, which is "independent of the Wetlands Protection Act" and provides "the Commission shall impose conditions, which the Commission deems necessary or desirable to protect those wetland values, and all activities shall be in accordance with those conditions." See Dennis Wetlands Bylaw at 4, 5, http://www.town.dennis.ma.us/Pages/DennisMA_BComm/conservation/Rules% 20and% 20Regs/Bylaw.pdf [https://perma.cc/8UGF-92VD] ). The conservation commission issued both permits with orders of conditions.

In August, 2009, the town also received a waiver of the requirement to prepare an environmental impact report and a public benefits determination from the Executive Office of Energy and Environmental Affairs. The Secretary of the Executive Office of Energy and Environmental Affairs (Secretary) concluded that the construction of the beach dune at West Dennis Beach would "enhance the sediment-starved beach and protect against continuous storm damage. In addition, endangered shorebird habitat will be enhanced." In making this determination, the Secretary considered supportive written comments from the following organizations: the Massachusetts Division of Marine Fisheries, the Cape Cod Commission, the Natural Heritage and Endangered Species Program, the Massachusetts Board of Underwater Archaeological Resources, and the Massachusetts Department of Environmental Protection (Southeast regional office).

After receiving the 10-year permits for the Swan Pond River dredging project and the West Dennis Beach nourishment project, the town dredged the mouth of Swan Pond River in 2010. As specified in the permits, the town used the spoils of the 2010 dredging to construct a sand dune to protect a failing bulkhead on West Dennis Beach that protects a public parking lot and endangered species nesting areas. The erosion from the dune is intended to protect the beach from severe erosion from winter storms.

The then president of the Miramar Avenue Association sent a letter to the town about the town's plans to transport the sediment to the public West Dennis Beach, rather than placing it on Miramar Beach. In response, the town's director of natural resources wrote to the association that the placement of the spoils on Miramar Beach in 1996 had been done under the permits in effect for that particular project; the director cited an earlier communication from 1994, explaining that, after the permits expired, "the Town will have to go through a new permit process again and seek new permits. Any new permit would give the Town the right to seek any new disposal area ... in the best interest of the Town."

With respect to its comprehensive ten-year dredging and beach nourishment plan, the town thereafter similarly received a number of separate approvals from DEP for both the dredging project and the beach nourishment project. Permits for both projects were received pursuant to the State waterways program, G. L. c. 91, §§ 52 - 56, which provides that DEP "shall supervise the transportation and dumping of all material dredged in the tide waters of the commonwealth," including by employing an inspector at the expense of the permittee. The town also received a water quality certification for the dredging plan, pursuant to G. L. c. 21, §§ 26 - 53, and the Massachusetts environmental policy act, G. L. c. 30, §§ 61 - 62H.

In 2015, the Executive Office of Energy and Environmental Affairs investigated and reviewed the town's proposed comprehensive ten-year dredging and beach nourishment plan; as part of this process, the office reviewed written comments and independent reviews submitted by a number of State and Federal agencies, including the Board of Underwater Archaeological Resources, the Division of Marine Fisheries, DEP, the Division of Fisheries and Wildlife's natural heritage and endangered species program, the Cape Cod Commission, and the Massachusetts Office of the Federal Coastal Zone Management program of the National Oceanic and Atmospheric Administration. In its letter, DEP noted that its regulation, 310 Code Mass. Regs. § 9.40(4), requires that spoils from publicly-funded dredging projects be placed on public beaches. Public comments also were solicited and received; some of the plaintiffs submitted comments, which the Secretary noted in his final report. In October, 2015, the Secretary determined that the ten-year comprehensive plan was of public benefit, and that there was no need for the town to submit an environmental impact report. The Secretary commented that the ten-year plan would allow the town to use the spoils of dredging to "nourish the highest priority areas and allow[s] for effective use of Town and County resources."

After the determination under the environmental policy act that no environmental impact statement was required, the town's comprehensive dredging and beach nourishment project was reviewed by the individual agencies whose permits were necessary to implement the ten-year comprehensive plan. The town also filed the plan with the Division of Fisheries and Wildlife, as part of the agency's role in ensuring compliance with the endangered species act, G. L. c. 131A. The Division submitted positive comments.

In September, 2014, the town announced plans to conduct maintenance dredging at the mouth of Swan Pond River, under its then-current dredging and beach nourishment permits specific to Swan Pond River and West Dennis Beach. To complete this dredging, the town had received a general permit from the United States Army Corps of Engineers in March, 2014; unlike the ten-year permits from the DEP and the conservation commission, the Army Corps of Engineers permit was issued for a one-year period, to expire in January, 2015. The plaintiffs again requested that the spoils be used to nourish Miramar Beach. The town asserted that it was prohibited from doing so by 310 Code Mass. Regs. § 9.40(4)(a), which requires that spoils from publically-funded dredging projects be used to nourish public beaches.

Since the dredging in 2014, sediment has built up in the mouth of Swan Pond River. Plans were in place to dredge the river again in 2016; that dredging did not take place, in part because of the timing of the renewal of the permit from the Army Corps of Engineers, which had expired in January, 2015.

c. Prior proceedings. This litigation was begun in September, 2014, two days before dredging of Swan Pond River was to start, when the plaintiffs commenced an action in the Superior Court pursuant to G. L. c. 214, § 7A, seeking a declaratory judgment and temporary and permanent injunctions preventing the town from dredging the mouth of Swan Pond River unless the town placed the spoils on Miramar Beach. The plaintiffs sought the temporary injunction to prevent alleged imminent harm to the environment due to the town's planned dredging of Swan Pond River. The plaintiffs claimed that the town would be in violation of 310 Code Mass. Regs. 310 § 10.27(4)(c) if it did not place the spoils from dredging Swan Pond River on Miramar Beach. A Superior Court judge denied the plaintiffs' motion for a temporary injunction. In September, 2016, the parties filed cross motions for summary judgment.

After a hearing in January, 2017, a different Superior Court judge allowed the plaintiffs' motion for summary judgment and denied the town's cross motion. Although not an issue raised in the plaintiffs' complaint or in their motion for summary judgment, the judge determined that the town had triggered the obligations of 310 Code Mass. Regs. § 10.27(4)(c) when it repaired and lengthened the jetty in the early 1990s. The judge concluded that the town violated the regulation by failing to add a sand bypass system to the jetty, and that the regulation, therefore, "creates an ongoing obligation by the Town, after repairing and expanding the jetty, to offset its adverse effects on down drift beaches such as Miramar Beach." In addition, the judge issued an injunction compelling the town "periodically [to] dredge Swan Pond River to re-nourish Miramar Beach pursuant to 310 Code Mass. Regs. § 10.27(4)(c)." The injunction stated also that "the Town of Dennis is permanently enjoined from violating 310 Code Mass. Regs. § 10.27(4)(c)." The judge rejected the plaintiffs' contention that the town must renourish Miramar Beach every time that the area is dredged, instead concluding that the regulation only requires periodic renourishment; he noted also that the town has a "significant public interest in nourishing eroding Town-owned beaches."

3. Discussion. a. Standard of review. "Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law."

Boazova v. Safety Ins. Co., 462 Mass. 346, 350, 968 N.E.2d 385 (2012), citing Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). Where there is a "developed summary judgment record[, as] in this case, the plaintiff[s] must establish that [they have] a reasonable expectation of proving each element of a prima facie case ...." Beal v. Selectmen of Hingham, 419 Mass. 535, 541, 646 N.E.2d 131 (1995).

"Our review of a motion judge's decision on summary judgment is de novo, because we examine the same record and decide the same questions of law." Kiribati Seafood Co. v. Dechert, LLP, 478 Mass. 111, 116, 83 N.E.3d 798 (2017). "In a case like this one where both parties have moved for summary judgment, the evidence is viewed in the light most favorable to the party against whom judgment [has entered]" (citation omitted). Boazova, 462 Mass. at 350, 968 N.E.2d 385.

b. Cause of action under G. L. c. 214, § 7A. As discussed, G. L. c. 214, § 7A, allows a group of ten residents to seek an injunction in the Superior Court when "damage [is] caused or [is] about to be caused" through actions that "constitute[ ] a violation of a statute, ordinance, by-law or regulation the major purpose of which is to prevent or minimize damage to the environment." The wetlands protection act requires that projects that affect wetlands, including dredging, and that affect interests identified in the act, may take place only after receipt of a permit from an appropriate issuing body, here, the conservation commission. The proponent of a project must provide at least twenty-one days' written notice of the intended action, and a public hearing must be conducted within twenty-one days of receipt of the notice. G. L. c. 131, § 40. In granting permission for projects that affect interests covered by the act, if the local authority determines that the area of the proposed work "is significant to" specific noted interests, such as "to the protection of wildlife habitat" or "storm damage prevention," the local authority must issue such an order of conditions "as will contribute to the protection of [these] interests." See id. The statute further requires that no work may be done without "receiving and complying with [this] order of conditions." Id. Projects affecting wetlands that are undertaken without such a permit, or that, when executed, do not comply with the order of conditions, are in violation of the act.

c. 2014 dredging project. As stated, in their complaint, filed two days before dredging was scheduled to commence, the plaintiffs contended that the 2014 dredging project would cause environmental harm because it violated 310 Code Mass. Regs. § 10.27(4)(c). On appeal, however, the plaintiffs argue that the motion judge properly granted summary judgment on the ground that the town triggered application of 310 Code Mass. Regs. § 10.27(4)(c) when it extended the jetty at some point in the early 1990s, and that these modifications created on ongoing obligation on the part of the town periodically to nourish Miramar Beach.

On this record, we are unable determine whether any violation of the wetlands protection act has occurred as a result of the town's periodic dredging of Swan Pond River, as authorized under the 2010 dredging permit, or the placement of the spoils on West Dennis Beach, as authorized under the 2010 beach nourishment permit. See discussion, infra. There is no evidence in the record that, by its 2010 and 2014 dredging of Swan Pond River, the town violated any terms of the order of conditions issued under the 2010 ten-year permits for the dredging of Swan Pond River or the 2010 ten-year permits for nourishment of West Dennis Beach.

The 2010 permit from the conservation commission, under which the town conducted the challenged dredging in 2014, did not implicate 310 Code Mass. Regs. § 10.27(4)(c), because the project did not affect the construction of the jetty. See Code Mass. Regs. § 10.27(4)(c) ("Any ... jetty ... shall be constructed as follows ..."). Rather, as the town maintains, the dredging project applied to "land under ocean," which is covered by 310 Code Mass. Regs. § 10.25 rather than by 310 Code Mass. Regs. § 10.27(4)(c). Consistent with his conclusion concerning the repair and extension of the jetty, the motion judge properly determined that the dredging project itself, rather than the permits receive for the project, did not trigger the requirement of 310 Code Mass. Regs. § 10.27.

d. 1990s jetty extension. Before turning to the judge's finding that the 1990s jetty extension project implicates 310 Code Mass. Regs. § 10.27, we reiterate that the plaintiffs' complaint did not allege a violation of 310 Code Mass. Regs. § 10.27 arising out of the extension of the jetty in the early 1990s. The complaint asserted only that "[t]he dredging that the Town of Dennis intends to perform [the 2014 dredging], coupled with the Town's intent to transport the dredge material to an updrift beach more than a mile away, violates 310 [Code Mass. Regs. §] 10.27(4)(c)."

On appeal, the plaintiffs argue that we should affirm the allowance of their motion for summary judgment, and the injunctive order that the town "periodically [must] re-nourish Miramar Beach," because "[ 310 Code Mass. Regs.] § 10.27(4)(c) creates an ongoing obligation by the Town ... to offset the adverse effect" of expanding the jetty on the east side of the inlet to Swan Pond River in the early 1990s. We do not agree. On this record, the plaintiffs were not entitled to summary judgment in their favor; to the contrary, summary judgment must enter for the town. Even if it had been timely made, and even if it had been raised in their complaint and in their motion for summary judgment, on this record, the plaintiffs have failed to prove an essential element of that claim.

The judge found that the town's extension of the jetty in the 1990s created an obligation under 310 Code Mass. Regs. § 10.27 requiring the town periodically to dredge the mouth of Swan Pond River and to deposit the spoils on Miramar Beach. The regulation itself, however, imposes no such obligation on jetty owners. Title 310 Code Mass. Regs. § 10.27 is a "performance standard" to guide local conservation commissions in issuing permits under the act. Title 310 Code Mass. Regs. § 10.21 introduces the sections that follow, 310 Code Mass. Regs. §§ 10.21 - 10.37, as "performance standards [that] are intended to identify the level of protection the issuing authority must impose in order to contribute to the protection of the interests of [G. L. c.] 131, § 40." See 310 Code Mass. Regs. § 10.01(2) ("The purpose of 310 [Code Mass. Regs. §§] 10.00 is to define and clarify that process by establishing standard definitions and uniform procedures by which conservation commissions and [DEP] may carry out their responsibilities under [G. L.] c. 131, § 40").

When determining whether to issue a permit under G. L. c. 131, § 40, the issuing authority (here, the conservation commission) is required to consider the nature of the proposed project and whether it would affect any of the protected interests. If a project does affect those interests, the issuing authority must consider what, if any, conditions to place upon a permit such that the conditions adequately can protect the interests which might be affected by the proposed project. See 310 Code Mass. Regs. § 10.21. In issuing the 2010 dredging permit, for example, the conservation commission referenced the act and attached four "additional conditions" to the permit. It is only through the permitting process that an issuing authority may attach conditions to a project; thereafter, if a permit is issued and conditions are imposed, those conditions place an obligation on the applicants. See 310 Code Mass. Regs. § 10.21. If the jetty extension that the town conducted at some point presumably after May, 1990, and before October, 1992, triggered the requirements of 310 Code Mass. Regs. § 10.27, that could be so only because of an order of conditions that was issued by the conservation commission at that point, in conjunction with a permit to extend the jetty, prior to the undertaking of the modifications. Any obligation on the part of the town to renourish Miramar Beach would have been memorialized in an order of conditions issued by the conservation commission in conjunction with the maintenance work on the jetty.

Nowhere in the summary judgment record, however, is there any information concerning a permit to repair or extend the jetty at any point in the 1990s (or at any other time) that might have been issued by the conservation commission under G. L. c. 131, § 40. As the order of conditions, if one ever existed, is absent from the record, we are unable to determine whether the town ever had any obligation to renourish Miramar Beach as a result of its modifications to the jetty. Contrary to the judge's determination, any such obligation may not flow directly from the regulation, and the potential source of the obligation -- the order of conditions -- is missing from the record, or may never have existed. This gap in the record is consistent with the fact that the plaintiffs did not make the argument upon which the judge based his decision in their complaint or in their motion for summary judgment.

Accordingly, the plaintiffs have failed to establish that the town violated a statute or regulation "the major purpose of which is to prevent or minimize damage to the environment," as would have been required to establish their claim under G. L. c. 214, § 7A. The summary judgment record does not indicate that the town had any obligation to renourish Miramar Beach under an order of conditions from the conservation commission issued in conjunction with a permit to expand the jetty in the early 1990s, or at any other time. Given that the plaintiffs have failed to prove an essential element of their case, summary judgment must enter for the town. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991).

3. Conclusion. The order enjoining the town periodically to nourish Miramar Beach is vacated and set aside. The order granting summary judgment to the plaintiffs is reversed. The case is remanded for entry of judgment for the defendant.

So ordered.

      General Laws c. 214, § 7A, provides, in relevant part:
      "The [S]uperior [C]ourt for the county in which damage to the environment is occurring or is about to occur may, upon a civil action in which equitable or declaratory relief is sought in which not less than ten persons domiciled within the commonwealth are joined as plaintiffs ... determine whether such damage is occurring or is about to occur and may, before the final determination of the action, restrain the person causing or about to cause such damage; provided, however, that the damage caused or about to be caused by such person constitutes a violation of a statute, ordinance, by-law or regulation the major purpose of which is to prevent or minimize damage to the environment.

      As relevant here, the terms of the easement authorize the town
      "to excavate and remove dredging material; to place dredging material; to maintain, repair and improve an existing revetment; to construct, maintain and repair a new revetment; to perform related work necessary for said purposes; to inspect the easement area and said work; to enter upon the easement area for said purposes; [and] to bring machinery and equipment into the easement area for said purposes."

      In October, 1992, residents of Miramar Park sent a petition to the town requesting that a second jetty be built on the eastern side of the inlet, as a possible means of stabilizing the mouth of the river and reducing the erosion of Miramar Beach. The petition was discussed at a subsequent town meeting. Since that time, no jetty has been constructed on the eastern side of Swan Pond River.

      In April, 1994, the town obtained an easement over a portion of lot 88 below the mean high water line for "public on-foot right of passage" to be exercised not earlier than sunrise or one-half hour after sunset, subject to further restrictions for protection of marine fisheries, wildlife, and erosion control. The town's board of selectmen voted to accept the easement "for the purposes of dredging the mouth of Swan River and placing dredge spoils on the east side of Swan River," conditioned on a public right of access to walk on the area below the high tide line. Both the language of the easement and the attached sketch indicate that the land that was nourished in 1996 was below the mean high water mark, a form of beach nourishment that is prohibited under the current permits, which all require nourishment only above the mean high water line. In his letter approving the town's request for an environmental impact assessment report for its ten-year comprehensive plan, the Secretary of the Department of Energy and Environmental Affairs noted that, should any areas of private beach be nourished with dredging spoils, as indicated in the areas designated 2 and 3 along Nantucket Sound, the landowners would be required to provide the town with an easement for a right of public access below the mean high water mark.

      The record contains the full order of conditions for the beach nourishment project, and limited portions of the conditions imposed for the Swan Pond River dredging project.

      The Miramar Avenue Association was the unincorporated predecessor of the Miramar Park Association.

      Lot 88 has 122.49 feet of beachfront along Nantucket Sound; the town owns 6.8 miles (35,904 feet) of beaches on Nantucket Sound and Cape Cod Bay, as well as three rivers that provide navigation, fishing, and recreational use. Miramar Beach thus represents a very small fraction of the length of the town's beaches.

      The Superior Court judge who denied the plaintiffs' motion for a temporary injunction commented in discussing the likelihood of success that the town had many defenses, including that the action was time barred. The town did not raise any argument concerning the statute of limitations and did not suggest in the Superior Court or in its appellate filings that the plaintiffs' complaint was time barred. We note, however, that actions under G. L. c. 214, § 7A, are subject to the statute of limitations applicable to the statute or regulation purportedly violated. See Canton v. Commissioner of Mass. Highway Dep't, 455 Mass. 783, 786, 919 N.E.2d 1278 (2010). An action under the wetlands protection act, under which 310 Code Mass. Regs. § 10.27 is promulgated, must be brought within two years of the violation. See G. L. c. 131, § 91. An appeal from a decision by an agency, pursuant to G. L. c. 30A, § 14, must be filed in the Superior Court within thirty days of the issuance of the agency's determination. Of course, if an order of conditions from the extension of the jetty required the town to conduct some form of ongoing dredging in perpetuity, an action to enforce such a condition would not be time barred.

      The plaintiffs mentioned this argument in passing in their response to the town's cross motion for summary judgment.

      General Laws. c. 131, § 40, provides, in pertinent part,
      "If after said hearing the conservation commission ... determine[s] that the area on which the proposed work is to be done is significant to public or private water supply, to the groundwater supply, to flood control, to storm damage prevention, to prevention of pollution, to protection of land containing shellfish, to the protection of wildlife habitat or to the protection of fisheries or to the protection of the riverfront area consistent with the following purposes: to protect the private or public water supply; to protect the ground water; to provide flood control; to prevent storm damage; to prevent pollution; to protect land containing shellfish; to protect wildlife habitat; and to protect the fisheries, such conservation commission ... shall by written order within twenty-one days of such hearing impose such conditions as will contribute to the protection of the interests described herein, and all work shall be done in accordance therewith. If the conservation commission ... make[s] a determination that the proposed activity does not require the imposition of such conditions, the applicant shall be notified of such determination within twenty-one days after said hearing. Such order or notification shall be signed by ... a majority of the conservation commission ..., and a copy thereof shall be sent forthwith to the applicant and to the department."

      We address the plaintiffs' substantive claims, notwithstanding the absence of any timely appeal to any of the permitting agencies involved or to the Superior Court, because the town does not raise any issue of timeliness in its defense.

      Given our conclusion that the summary judgment record cannot support a conclusion that the 1990s extension of the jetty triggered the requirements of 310 Code Mass. Regs. § 10.27, we need not decide whether the extension of an existing jetty, in addition to the construction of a new jetty, could ever trigger any obligations under 310 Code Mass. Regs. § 10.27.

      In cases where a conservation committee allows a project to proceed, any aggrieved parties may appeal from the decision to the DEP. See 310 Code Mass. Regs. § 10.05(3)-(7). See generally Mostyn v. Department of Envtl. Protection, 83 Mass.App.Ct. 788, 791-793 & nn.13 & 14, 989 N.E.2d 926 (2013) (owner of adjacent property has standing to challenge order of conditions for permitted activity on sand dune, which is governed by 310 Code Mass. Regs. § 10.28 ). Such an appeal presumably would have been available to the plaintiffs if they wished to challenge an order of conditions for the early 1990s jetty project; a claim to DEP would have required that the plaintiffs demonstrate harm to the environment from the extension of the jetty or the absence of a sand bypass system. See 310 Code Mass. Regs. § 10.27.

      If an order of conditions requiring perpetual renourishment of Miramar Beach by the town had been included in the record, the plaintiffs then would have had to overcome the additional requirement of showing harm to the environment from the failure to comply with any such order. The town points to the numerous determinations by regulatory agencies that the Swan River dredging project and the West Dennis Beach nourishment project are environmentally beneficial as indicating that summary judgment for the plaintiffs should have been denied on this ground alone, a question we need not decide.

      The town argues also that the order requiring it periodically to renourish Miramar Beach with the spoils of dredging Swan Pond River conflicts with DEP's regulation on dredging, 310 Code Mass. Regs. § 9.40(4), which provides that, "in the case of a publicly-funded dredging project, [spoils from dredging] shall be placed on publicly-owned eroding beaches." It is undisputed that the dredging of Swan Pond River is publicly funded and that West Dennis Beach, the location at which the town deposited the spoils, as provided in the permit, is a public beach that has experienced significant erosion. Because of our result, we do not reach this issue. For similar reasons, we need not address the town's argument that the procurement act, G. L. c. 30B, prevents it from depositing the spoils of a public dredging project on Miramar Beach, a private beach. We note, however, that the procurement act applies only to tangible items "no longer useful to the government," and that, here, the spoils were useful to the town in renourishing West Dennis Beach as well as other town beaches. See G. L. c. 30B, § 15 (a ).