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					                       COMMONWEALTH OF MASSACHUSETTS
              EXECUTIVE OFFICE OF ENERGY & ENVIRONMENTAL AFFAIRS
                 DEPARTMENT OF ENVIRONMENTAL PROTECTION
                                ONE WINTER STREET, BO STON, MA 02108 617 -292 -5500




_______________________________                                                 May 21, 2009

In the Matter of                                                            OADR Docket No. 2006-157
                                                                            DALA Docket No. DEP-07-47
Princeton Development, Inc.                                                 File No. 103-585
a.k.a Princeton Properties                                                  Bedford
________________________________

                           DECISION ON MOTION FOR RECONSIDERATION

SUMMARY:

In a Recommended Final Decision, an Administrative Magistrate of the Division of Administrative
Law Appeals (“hearing officer”) recommended that the Commissioner of the Massachusetts
Department of Environmental Protection (“MassDEP” or “the Department”) issue a Final Decision
dismissing this appeal as moot. The Commissioner declined to adopt the hearing officer’s
recommendation and legal basis for dismissal of the appeal as moot, and resolved the appeal on the
merits. The Petitioner Bedford Conservation Commission (“BCC”) has moved for reconsideration
of the Commissioner’s Final Decision contending that the Commissioner improperly resolved
evidentiary conflicts grounded in witness credibility issues that should have been remanded to the
hearing officer for further hearing. The BCC’s Motion for Reconsideration is denied: (1) it is
entirely within the purview of the Department’s Commissioner, as the final agency decision-maker
to make findings of fact; and (2) it was appropriate for the Commissioner to issue a final decision
on the record, where no resolution of credibility issues was required.


Doris R. MacKenzie Ehrens, Esq., Murphy, Hesse, Toomey & Lehane, LLP, for the Petitioner.
Stephen M. Leonard, Esq., Law Office of Stephen Leonard, for the Applicant.
Elizabeth Kimball, Esq., Boston, for the Department of Environmental Protection.


       The Bedford Conservation Commission (the “Petitioner”) has filed a Motion for

Reconsideration of the Final Decision issued by the Commissioner of the Department of

Environmental Protection (“MassDEP” or “the Department”) in this matter approving a

development project under the Wetlands Protection Act, M.G.L. c. 131, § 40 (the “Act”) and 310

CMR 10.00 et seq. (the “Wetlands Regulations”). The Petitioner contends that the Commissioner
      This information is available in alternate format. Call Donald M. Gomes, ADA Coordinator at 617-556-1057. TDD Service - 1-800-298-2207.

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“usurped” the hearing officer’s authority in issuing the Final Decision. In particular, the Petitioner

grounds its arguments on its contentions that: (1) the Final Decision was based upon resolution of

witness credibility questions, which it claims is outside of the authority of the Commissioner, and

(2) the Petitioner was entitled to present more evidence on revised plans prior to the entry of a Final

Decision before a hearing officer at a new or reopened hearing.

        As set forth in more detail in the Final Decision and herein, the resolution of issues in the

Final Decision did not depend upon the resolution of credibility questions or evidentiary conflicts.

The Final Decision rested on an assessment of the Petitioner’s case and uncontested evidence

relevant to compliance with the Act and the Wetlands Regulations. The Petitioner did not meet its

burden of going forward on most of its claims, and the evidence was uncontested on all remaining

issues. As a result, a new hearing or reopened hearing was not necessary. The Commissioner, as

the Department’s final agency decision-maker, has the ultimate authority to resolve issues in this

appeal, and it is fully within the authority of the Commissioner to make rulings on all issues of fact

and law in an adjudicatory matter. M.G.L. c. 30A, § 11(8). The role of the hearing officer was

advisory.1 The Adjudicatory Proceeding regulations promulgated by the Department at 310 CMR

1.01 expressly recognize the Commissioner’s authority to “adopt, modify or reject a recommended

decision, with a statement of reasons.” 310 CMR 1.01(14)(b). In sum, the Petitioner’s contention

that the Commissioner “usurped” the role of the hearing officer is without merit.

        Moreover, there was no need here for a new or re-opened hearing. There was more than

adequate evidence in the record to resolve all issues on the merits. While the project started out the

adjudicatory process as a much larger 186-unit project, the Applicant, Princeton Development LLC,

1
  See A. Cella, Administrative Law and Practice §§ 347, 349 (1986). (“The agency, board or commission retains all
ultimate authority. Its paramount authority overshadows the subordinate functions, responsibilities and duties of the
hearing officer…. It is free to reject or to alter the recommended decision of the hearing officer. Such a recommended
decision is characteristically advisory in nature.” § 349).

In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 2 of 21
substantially downsized the project through plan revisions to a 156-unit project. The preponderance

of evidence in the record demonstrated that the 186-unit project was well-designed to keep parking

lots and other sources of pollution as far as possible from wetlands resource areas. The stormwater

systems were conservatively designed with more than adequate capacity and sufficient treatment

systems to protect the wetlands. The down-sized project maintained these protective measures and

also moved many structures further from wetlands or outside of the Department’s jurisdiction

altogether. The changes to the plans were well within the Departmental definition of “insubstantial”

changes that could be accepted in this proceeding, and these changes improved the protectiveness of

the project. There are many fewer issues with respect to the 156-unit project than were contested at

the hearing with respect to the 186-unit project. Ultimately, the Petitioner failed to sustain a case on

most issues, and the remaining issues could be resolved on uncontested evidence.

       The Petitioner received all required notice, opportunity to be heard and other process

required in the governing statutes and regulations. The hearing officer planned for the possibility of

a down-sized project, since the local authorities had only approved a 156-unit project. The hearing

officer ordered the parties to segregate their evidence for hearing to facilitate a possible decision on

a 156-unit project. The Petitioner had the opportunity at a full M.G.L. c. 30A hearing to address a

much broader set of claims on the 186-unit project as well as the issue of whether a smaller project

would be permissible. Finally, the Petitioner received the opportunity to brief the Commissioner

directly in response to an Order to Show Cause after receipt of the hearing officer’s Recommended

Final Decision. It would be pointless to proceed with another hearing and require the submission of

more evidence on the question of whether a much smaller and more protective 156-unit project

complies with the Act and the Wetlands Regulations, and there is no legal requirement to do so.




In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 3 of 21
I.     Procedural Background and Facts

       This project involves the Applicant’s proposed construction of a mixed-income housing

development pursuant to M.G.L. c. 40B in the Town of Bedford. The Department’s Northeast

Regional Office issued a Superseding Order of Conditions (“SOC”) approving the project with

conditions to ensure compliance with the Act and the Wetlands Regulations. The Petitioner

appealed the SOC approval and adjudicatory proceedings went forward at DALA including a

complete M.G.L. c. 30A hearing. The primary contentions by the Petitioner were that the Applicant

had to remove Building 1 from the Northern Parcel of the Property, that the Applicant needed to

locate structures further away from wetlands on the Southern Parcel and that it had not designed its

stormwater management systems in compliance with the Act, the Wetlands Regulations and the

applicable 1997 Department Stormwater Policy and Technical Handbooks.

       In a parallel legal proceeding, the Superior Court rejected the Applicant’s appeal of the

Bedford Zoning Board of Appeals Comprehensive Permit approving the project. The Bedford

Zoning Board of Appeals had approved a 156-unit affordable housing project in a Comprehensive

Permit decision by excising Building 1 from the project. The Superior Court decision was not

issued until after the DALA hearing regarding the SOC. After receiving the decision, the Applicant

filed a post-hearing motion at DALA for the acceptance of revised SOC plans that removed

Building 1, reducing the project from 186 to 156 units, pursuant to January 18, 2008 Revised Plans

and a June 13, 2008 Plan Narrative. In a Recommended Final Decision, the hearing officer

recommended dismissal of this appeal on the grounds that the revised plans could not be accepted

under the terms of Departmental policy, that the project would be rejected under the Bedford

Comprehensive Permit conditions, and that the issues on appeal were therefore moot.




In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 4 of 21
       After receiving this Recommended Final Decision, the Chief Presiding Officer of the

Department’s Office of Appeals and Dispute Resolution (“OADR”) issued an Order to Show Cause,

giving all parties an opportunity to inform the Commissioner of why the Recommended Final

Decision should be accepted as proposed, modified or rejected. The Petitioner submitted a lengthy

brief defending the decision. The Applicant and the Department also submitted briefs that

supported the modification or rejection of the decision.

       On February 5, 2009, I issued a Final Decision in which I disagreed with the legal

conclusions of the hearing officer. The Final Decision explained that the revised plans for the 156-

unit project could be accepted under the terms of Departmental policy, that the Department had no

jurisdiction to adjudicate whether the revised project would be rejected by the Bedford Zoning

Board of Appeals and that the Petitioner did not sustain a case to demonstrate any error of fact or

law in the Department’s approval of the project. The Petitioner has now moved for reconsideration

of that Final Decision.

II.    Standard of Review

       To succeed in a motion for reconsideration of a Final Decision, the moving party has a

heavy burden: the party must demonstrate that the Final Decision was based upon a finding of fact

or ruling of law that was clearly erroneous. See 310 CMR 1.01(14)(e); Matter of Burley Street,

LLC, DEP Docket No. 2005-228, DALA Docket No. DEP-06-122 Final Decision on

Reconsideration (November 18, 2008). In addition, “[w]here a motion [for reconsideration] repeats

matters adequately considered in the final decision, renews claims or arguments that were

previously raised, considered and denied, … it may be summarily denied.” 310 CMR 1.01(14)(e).

Matter of Anthony Lawrence, Docket Nos. 2008-032 & 034, Recommended Final Decision on

Reconsideration (July 18, 2008), adopted by Final Decision on Reconsideration (August 8, 2008).


In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 5 of 21
Here the Petitioner has cited no legal authority that would justify its request for either a remand to

DALA or a new or reopened hearing. The Commissioner, as the final agency decision-maker

retained at all times the ultimate decision-making authority on this state wetlands permit.

III.   The Bedford Conservation Commission Received All Due Process in the Appeal

       The Petitioner obtained the benefit of all required notice and procedures of the state

Administrative Procedures Act, M.G.L. c. 30A and the applicable Department Administrative

Proceedings Regulations at 310 CMR 1.01. The Petitioner had full notice of all issues for hearing

pursuant to M.G.L. c. 30A, § 11(1) and an administrative hearing with full opportunity to cross-

examine witnesses on all such issues pursuant to M.G.L. c. 30A, § 11(3). In addition, the Petitioner

had a final opportunity in response to the Order to Show Cause to defend the Recommended Final

Decision. The reductions in the project as presented by the revised plans resulted in fewer issues,

not more issues, and fewer impacts to wetlands resources. In addition, the hearing officer

specifically planned with all parties for the segregation of evidence with respect to the possible

removal of Building 1 from the Northern Parcel; the Petitioner had full notice and opportunity to be

heard on the issue of whether the project would have complied with the Act and Wetlands

Regulations with the removal of Building 1 from the project.

IV.    The Commissioner was Fully Authorized to Issue the Final Decision with Findings of
       Fact and Conclusions of Law in This Appeal

       Contrary to the Petitioner’s contentions in its Motion for Reconsideration, the Department’s

Commissioner is fully authorized to make findings of fact and is not bound to accept an assigned

hearing officer’s findings of fact or conclusions of law in an adjudicatory proceeding. The

Commissioner is the Department’s final agency decision-maker. See 310 CMR 1.01(a)(1). The

Commissioner is not required to delegate any responsibility to hearing officers. See 310 CMR

1.01(a)(1). At the conclusion of the hearing phase of adjudicatory proceedings in which a hearing

In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 6 of 21
officer presided, the Commissioner receives a Recommended Final Decision from the hearing

officer, 310 CMR 1.01(14)(a), that the Commissioner may “adopt, modify or reject . . . with a

statement of reasons.” 310 CMR 1.01(14)(b). Moreover, the State Administrative Procedures Act,

M.G.L. c. 30A, expressly recognizes that the final decision-maker for the agency has not only the

authority to make findings of fact and conclusions of law, but the obligation to do so. See M.G.L. c.

30A, § 11(8). The Commissioner must undertake an independent review of the record in order to

comply with the mandates of M.G.L. c. 30A, § 11(8) and 310 CMR 1.01(14)(b) to set forth a

finding on each issue of law and fact. See, e.g., Matter of Hoosac Wind Project, EnXco, Inc., DEP

Docket No. 2004-174, DALA Docket No. DEP-050124, Final Decision, (June 20, 2007), aff’d sub

nominee Ten Local Citizen Group v. New England Wind, LLC, Civ. No. SUCV07-3187,

Memorandum of Decision and Order (Suffolk Super. Ct. January 16, 2009) (Commissioner’s

reversal of numerous findings of fact in DALA hearing officer’s Recommended Final Decision was

upheld by the Superior Court).2

         The Final Decision here applied expertise and specialized technical knowledge to the record,

which is an important part of the decision-making process on an environmental permit, especially

where the Department is also charged with the enforcement of the Wetlands Regulations to protect

the interests of the Act. See M.G.L. c. 30A, sections 11(5) and 14(7) (Agencies may use and apply

their specialized knowledge and expertise, and judicial deference to such expertise is required). In

reaching a final decision, the “agency may use its experience, technical competence and specialized

knowledge in the evaluation of the evidence presented. M.G.L. c. 30A, § 11.” Matter of Hoosac

Wind Project, EnXco, Inc., Final Decision at footnote 2 (June 20, 2007) (It was appropriate for the

Commissioner to apply her knowledge of Departmental technical guidance on the proper

2
  See also discussion of the broad authority of agency decision-makers after conduct of proceedings by a delegated
hearing officer and the ministerial nature of hearing officer responsibilities in A. Cella, Administrative Law and Practice
§§ 347, 349 (1986), cited supra, note 1.
In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 7 of 21
delineation of stream banks and the construction of stream crossings).3 In this particular case, the

Final Decision made clear when interpretation and application of the Department’s regulations,

policies and technical guidance was part of the Decision, such as in interpreting compliance with

the Buffer Zone standards, The 1997 Stormwater Management Policy and Technical Handbooks,

and the Department’s Plan Change Policy. This was an appropriate exercise of the Commissioner’s

authority as the final agency decision-maker in this matter.

        A.       The Commissioner Has Authority to Issue Findings of Fact and Conclusions of
                 Law that Differ from those of an Appointed Hearing Officer

        The final agency decision-maker’s discretion to reject the findings of a hearing officer has

also been widely recognized by the courts. The Commissioner can reject a hearing officer’s

findings or conclusions with a “considered articulation of the reasons underlying that rejection.”

Morris v. Board of Registration in Medicine, 405 Mass. 103, 110-111 (1989), adopting holding of

Vinal v. Contributory Retirement Appeal Board, 13 Mass. App. Ct. 85 (1985). In addition, the

Commissioner may apply a different interpretation of the Department’s regulations, policies and

guidance to the evidence in the record, and such interpretation is “entitled to deference.” Ten Local

Citizen Group v. New England Wind, LLC, Civ. No. SUCV07-3187, Memorandum of Decision and

Order at p. 14 (Suffolk Super. Ct. January 16, 2009).4 A final decision may include conclusions of

law which reject the position taken by a party with the result that evidence has proven insufficient


3
  The courts have also recognized that application of agency expertise and specialized knowledge is an appropriate
exercise by the Commissioner in adjudicatory proceedings. A court must “give due weight to the experience, technical
competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.” See
Ten Local Citizen Group v. New England Wind, LLC, Civ. No. SUCV07-3187, Memorandum of Decision and Order at
p. 12 (Suffolk Super. Ct. January 16, 2009) (Commissioner had authority to make different factual findings in case
involving witness credibility issues through application of technical expertise and specialized knowledge). See also A.
Cella, Administrative Law and Practice § 399 (1986) (The final agency “may put its expertise to use in evaluating the
complexities of technical evidence,” citing Arthurs v. Board of Reg. of Medicine, 383 Mass. 299, 309-10 (1981)).
4
  The Supreme Judicial Court has repeatedly recognized that the Department’s Commissioner and other final agency
decision-makers charged with implementation of regulatory programs requiring specialized knowledge and expertise
have broad authority to exercise their independent judgment in applying agency regulations and policies and in applying
their specialized knowledge to decisions in adjudicatory proceedings. In Friends and Fishers of the Edgartown Great
In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 8 of 21
or irrelevant to final determinations on the merits. Matter of City of Cambridge, DEP Docket No.

2005-088, DALA Docket DEP-05-805, Final Decision on Motion for Reconsideration (October 16,

2007). This is essentially what happened in the Final Decision, in which I disagreed with the

ultimate legal conclusions by the hearing officer and applied conclusions of law that differed from

those advocated by the Petitioner. This was entirely appropriate and within the authority of the

Department’s Commissioner.

        In Department adjudicatory proceedings, the Commissioner’s “final decision may differ, and

differ significantly, from a recommended decision, and may contain findings of fact. 310 CMR

1.01(14)(a) and (b).” Matter of City of Cambridge, DEP Docket No. 2005-088, DALA Docket

DEP-05-805, Decision on Motion for Reconsideration (October 16, 2007). The Commissioner may

take note of evidence not considered by the hearing officer and may give different weight to

evidence than that given by the hearing officer. See Matter of Steven Peabody, DEP Docket No.

2002-053, DALA Docket No. DEP-04-400, Final Decision (January 25, 2006), aff’d sub nomine,

Peabody v. Dept. of Environmental Protection, Civ. No. ESCV2006-00299-B, Memorandum of

Decision and Order (Middlesex Super. Ct. June 26, 2009) (Superior Court affirmed Commissioner’s


Pond, Inc. v. Dep’t of Envt'l Protection, 446 Mass 830, 836-37 (2006), the Supreme Judicial Court summarized these
multiple holdings as follows:

        Under G. L. c. 30A, § 14, we review the findings below only to determine whether the agency's decision was
        unsupported by substantial evidence, arbitrary and capricious, or otherwise based on an error of law.
        Massachusetts Inst. of Tech. v. Department of Pub. Utils., 425 Mass. 856, 867-868, 684 N.E.2d 585 (1997). "It
        is a standard of review 'highly deferential to the agency,' which requires . . . according 'due weight to the
        experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary
        authority conferred upon it.'" Hotchkiss v. State Racing Comm'n, 45 Mass. App. Ct. 684, 695-696, 701 N.E.2d
        642 (1998), quoting Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420, 589 N.E.2d 1224 (1992). We
        give deference to the decision of an agency interpreting its own regulations. Hurst v. State Ballot Law
        Comm'n, 428 Mass. 116, 120, 697 N.E.2d 523 (1998); Boston Police Superior Officers Fed'n v. Boston, 414
        Mass. 458, 462, 608 N.E.2d 1023 (1993); Brookline v. Commissioner of the Dep't of Envtl. Quality Eng'g, 398
        Mass. 404, 411, 497 N.E.2d 9 (1986). We do "not intrude lightly within the agency's area of expertise,"
        Brookline v. Commissioner of the Dep't of Envtl. Quality Eng'g, supra at 410, as long as the regulations are
        interpreted with reference to their purpose and to the purpose and design of the controlling statute. See Maslab
        Liquidation Trust v. Commonwealth, 61 Mass. App. Ct. 1, 8, 806 N.E.2d 947 (2004). See also Brookline v.
        Commissioner of the Dep't of Envtl. Quality Eng'g, 387 Mass. 372, 382, 439 N.E.2d 792 (1982), S. C., 398
        Mass. 404, 411, 414, 497 N.E.2d 9 (1986).
In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 9 of 21
decision to reject conclusions of hearing officer with respect to historical coastal dune movement

when Commissioner credited testimony of neighbors not mentioned by the hearing officer). It was

appropriate and within my authority to reach findings of fact based on evidence in the record on the

legal issues in the case.

        B.      No Finding of Fact by the Commissioner Rested on Resolution of Witness
                Credibility Concerns

                1.      While substantial deference is due to hearing officer findings based upon
                        resolution of credibility issues, a final agency decision-maker may still differ
                        with those findings

        It is true that the Supreme Judicial Court has established a rule of “substantial deference” in

the review of findings of fact made by a hearing officer that turn on questions of witness credibility.

See Morris v. Board of Registration in Medicine, 405 Mass. 103, 110-111 (1989). However, in

establishing that standard, the Supreme Judicial Court explicitly recognized the ultimate decision-

making role of the final agency decision-maker with specialized expertise, which decision-maker

has the “right to exercise its judgment and statutory responsibility” to differ with the findings of

hearing officers. Morris v. Board of Registration in Medicine, 405 Mass. at 111 (adopting holding

of Vinal v. Contributory Retirement Appeal Board, 13 Mass. App. Ct. 85 (1985)). The Supreme

Judicial Court has not required deference by the final agency decision-maker for any other types of

factual or legal findings. See Lisbon v. Contributory Retirement Appeal Board, 41 Mass. App. Ct.

246, 252-53 (1996) (“The only occasion requiring agency explanation for its disagreement with a

hearing officer’s findings arises when those findings are based upon live witness testimony and

credibility determinations made thereon.” (citing Vinal)); see also A. Cella, Administrative Law and

Practice §§ 347, 349 (1986). Therefore, the law is clear from the language of M.G.L. c. 30A and

the rulings in Morris and Vinal that the final agency decision-maker does retain authority to issue

findings of fact and conclusions of law, that may differ from that of an administrative hearing

In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 10 of 21
officer, so long as the reasons for the decision are articulated in writing and substantial deference is

given to any findings that rest upon witness credibility questions.5

                  2.       The Final Decision did not reject the hearing officer’s findings of fact

         In the case at hand, however, the Final Decision did not reject any finding of fact by the

hearing officer. The hearing officer did not issue any findings of fact on the merits of the case, but

instead concluded that it was unnecessary to issue such findings because she decided that the appeal

should be dismissed as moot.6 The Final Decision documented in detail why the hearing officer’s

legal reasons for dismissal were incorrect. I concluded that the matter was not moot, that the

Applicant’s proposed new plan could be considered under the terms of Department policy, and that

the merits of the appeal could be resolved on the record.7


5
  The Petitioner’s claim in its brief that “[t]he law is clear that the Commissioner cannot judge the credibility of
witnesses because she was not the hearing officer,” citing to the Supreme Judicial Court’s ruling in Amherst-Pelham
Regional Sch. Comm. v. Dept. of Education, 376 Mass. 480 (1978), misstates the holding in that matter. See
Petitioner’s Memorandum in Support of its Motion for Reconsideration, p. 2. In Amherst-Pelham, the SJC held the
opposite of what the Petitioner argues, namely, that it was acceptable for a second hearing officer to issue a corrected
decision after a remand from a Superior Court appeal based on the prior transcript and record of proceedings without
having attended the first hearing or re-opening the hearing to re-hear the witnesses.
6
  In its motion, Petitioner claims that I ignored or reversed findings of fact made by the hearing officer in a September
24, 2007 Ruling on Motion to Reopen the Record with respect to the appropriate cover type for the Property for
stormwater purposes. A review of the hearing officer’s discussion of Mr. Claytor’s testimony demonstrates that it does
not contain any findings of fact with respect to the merits of what cover type would be appropriate. Instead, the hearing
officer discusses whether Mr. Claytor reached a final conclusion that the Property was 50% brush and 50% meadow.
She concluded that he did not. I concur with her assessment. Her characterization of Mr. Claytor’s testimony is, in fact,
entirely consistent with the characterization of the testimony in the Final Decision at pp. 24-25.
7
   Contrary to the Petitioner’s contentions, the Supreme Judicial Court made clear in Morris, supra, that Salem v.
Massachusetts Comm’n Against Discrimination, 404 Mass. 170 (1989), cited by Petitioner, does not stand for the
proposition that a final agency decision-maker can never reverse the findings of a hearing officer even when credibility
is at issue:

         We have never held, however, nor does the physician argue here, that the administrative agency responsible for
         making the final decision may not revise or reject the findings of a hearing officer on conflicting evidence. [FN
         6: By letter appropriately presented after his brief was filed, the physician cites our recent opinion in Salem v.
         Massachusetts Comm’n Against Discrimination, supra at 174-175, but does not argue that it alters the law
         previously established.] The physician makes no claim that any general constitutional principle, such as the
         denial of due process of law, always bars an agency from reversing the findings of fact of a hearing officer
         made on conflicting evidence.

The Supreme Judicial Court has recently reaffirmed that “[w]e are required to give due weight to the agency's
experience, technical competence, and specialized knowledge” citing to Damiano v. Contributory Retirement Appeal
In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 11 of 21
                 3.       The Final Decision did not rely upon resolution of credibility questions or
                          conflicts in evidence

        No determination with respect to witness credibility was required as is explained in detail in

the Final Decision. To summarize, first, the Final Decision explained that the hearing officer had

improperly applied the Department’s Administrative Appeals Policy for the Review of Project Plan

Changes, DWW Policy No. 91-1 (the “Plan Change Policy”). The hearing officer concluded that

the plans involved “substantial” changes, but in doing so, she made a legal error in applying the

definition of “substantial” in the Plan Change Policy. I was under no obligation to defer to the

hearing officer’s erroneous interpretation of the Plan Change Policy. See Final Decision, pp. 8-12.

These were conclusions of law, applying the Plan Change Policy to the details of the January 18,

2008 Plans and contrasting them with the existing plan of record (the “July 10, 2006 plans,”

Appellant’s Exhibit 8), along with a review of accompanying plan narratives. 8

        Second, the Final Decision concluded that, as a matter of law, the hearing officer had erred

in concluding that there was a local permit denial by the Bedford Zoning Board of Appeal that

would prevent the Applicant from complying with General Condition 3 of a Superseding or Final

Order of Conditions. General Condition 3 requires an applicant to comply with other laws,

particularly obtaining a local wetlands bylaw approval. In considering whether to dismiss an appeal

of a state SOC decision, the question before the hearing officer was only whether there was a clear



Bd., 72 Mass. App. Ct. 259, 261, (2008), and Lisbon v. Contributory Retirement Appeal Bd., 41 Mass. App. Ct. 246,
252 n.6, 257, (1996). See Retirement Board of Salem v. Contributory Retirement Appeal Board, 453 Mass. 286, 289
(2009).
8
  The Petitioner contends at some length in its Motion for Reconsideration that I conducted a “mysterious”
“independent review” of the hearing officer’s Recommended Final Decision. There is no mystery; an independent
review is what the Department’s Commissioner always conducts in every appeal in which a hearing officer forwards a
Recommended Final Decision to the Commissioner for her review. See, e.g., Matter of Hoosac Wind Project, EnXco,
Inc., DEP Docket No. 2004-174, DALA Docket No. DEP-050124, Final Decision, (June 20, 2007), aff’d sub nominee
Ten Local Citizen Group v. New England Wind, LLC, Civ. No. SUCV07-3187, Memorandum of Decision and Order
(Suffolk Super. Ct. January 21, 2009)

In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 12 of 21
local wetlands bylaw denial issued by the town of Bedford for the Applicant’s project that would

preclude compliance with General Condition No. 3 of the SOC. See 310 CMR 1.01(5)(a)(2); see

also case decisions cited in Final Decision, pp. 6-7 and n. 4.9 In fact, it was uncontested in the

record that the Bedford Zoning Board of Appeals approved the Applicant’s Comprehensive Permit

application for a 156-unit affordable housing project under M.G.L. c. 40B, which approval

subsumed the local wetlands bylaw approval with conditions.10 The Final Decision explains why

such a determination must be left to the Town of Bedford’s Zoning Board of Appeals, since that

decision is properly within its jurisdiction, not that of the Department. See Final Decision, pp. 6-8.

         Third and finally, the Final Decision examined the complete record, which contained

evidence on many more issues on the larger 186-unit project than were necessary to resolve the

remaining claims as to the smaller revised 156-unit project. I determined that all issues could be

resolved upon a determination that the Petitioner had not met its burden of going forward on most

issues or upon uncontested evidence. Specifically, on all but one of the issues in the case, I found

that the testimony and evidence in the record did not meet the Petitioner’s burden of going forward

to demonstrate that there was an error in the Department’s SOC. See Final Decision, pp. 18-21, 32-

47.11 In appeals of wetlands permits such as the SOC, the burden is placed on the party contesting


9
  Review of a local wetlands bylaw permit is outside the Department’s jurisdiction under M.G.L. c. 131, s. 40. See,
e.g., Matter of Linda Nyren, Trustee, Cadillac Mountain Realty Trust, Docket Nos. 2002-159, 2002-161, and 2002-163,
Final Decision (June 14, 2004); Matter of Edward T. McLaughlin, Trustee, ETM Realty Trust, Docket No. 05-1224,
Decision and Order on Motion to Stay, n. 14 (March 22, 2006).
10
   Comprehensive permit applications for affordable housing projects under M.G.L. c. 40A go through a different
process than do wetlands permits in which the local zoning board of appeal issues the final permit approval or denial.
While there were many wetlands bylaw conditions in the local Comprehensive Permit approval issued by the Bedford
Zoning Board of Appeals in this case, there is no dispute that the Comprehensive Permit was approved.
11
   See 310 CMR 10.03(2). In cases where a Petitioner has failed to meet its burden of going forward, the rules
governing adjudicatory proceedings before the Department permit the decision-maker to enter a directed decision
without a hearing for failure to sustain a case. See 310 CMR 1.01(11)(e). The petitioner must provide credible and
competent evidence relevant to the governing legal requirements before shifting the burden to the applicant to respond.
See Matter of Meadows at Marina Bay, Docket No. 98-005, Final Decision (February 18, 1999) and Decision on
Motion for Reconsideration (March 23, 1999), aff’d sub nominee Neponset River Watershed Association v. the
In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 13 of 21
the Department’s position to produce credible evidence from a competent source on each aspect of

its claims. Id. In reaching my conclusions, I found all of Petitioner’s witnesses to be qualified

expert witnesses. On all but one sub-issue, the Petitioner’s experts failed to present relevant or

complete testimony regarding noncompliance with the Act or the Wetlands Regulations. The Final

Decision explains exactly how the Petitioner failed to meet its burden on each issue.

        There was only one issue on which there could be a perception of conflicting evidence,

namely, as to Issue 1(b), in which the Petitioner’s expert witness, Richard Claytor, presented

testimony that the Applicant’s expert witness had incorrectly calculated volumes in five instances.

See Final Decision, pp. 21-32. In four instances, there was in fact no conflict of expert testimony,

because the experts ended up agreeing on the record on the facts necessary to resolve the sub-issues.

On three sub-issues, the Applicant’s expert witness, Joseph Peznola, conceded that the errors had

occurred. This occurred on (1) the volume of the detention ponds, (2) the low-flow channel design

and (3) the discrepancies in plan sheets. See Final Decision, pp. 27-30. Therefore, there was no

credibility issue or conflict in evidence for evaluation, since both experts were in agreement as to

the errors. The only matter in dispute was a legal one, namely, whether additional conditions added

to the Final Order of Conditions could cure these errors. I concluded that such errors were minor

and could be corrected through adding permit conditions that would ensure compliance with the

Wetlands Regulations and serve the interests of the Act. On the fourth sub-issue, namely that of

improper counting of volume below the outlet elevation of a detention basin, I did not discount Mr.

Claytor’s direct testimony that water would “permanently pond” below the outlet. However, the

Applicant responded by pointing out that water would not “permanently” pond below the outlet and

that it would be an “engineering mistake” to assume that such volume would be unavailable. Mr.

Meadows at Marina Bay, LLC., Civ. No. 99-642, Memorandum of Decision and Order (Norfolk Super. Ct., December
23, 1999), aff’d pursuant to Rule 1:28 (Mass. App. Ct., November 6, 2000).

In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 14 of 21
Claytor then conceded in his rebuttal testimony that the water would not “permanently” pond below

the outlet. Since Mr. Claytor conceded the point, I found the evidence uncontested that the volume

below the outlet elevation could properly be counted towards the total volume of the stormwater

system. See Final Decision, p. 29.

       On the fifth and final sub-issues to Issue 1(b), I concluded that the Petitioner had not

submitted sufficient evidence to meet its burden of going forward. On the issue of volume of

underdrains below the grass swales, I concluded that Mr. Claytor had not proven that the volume

could not be counted towards the total volume of the stormwater system. I reached this conclusion

by reviewing the requirements of the Department’s Stormwater Policy and Technical Handbook, on

which Mr. Claytor had relied in his testimony. I found that the provisions of those policy

documents did not support Mr. Claytor’s testimony. Reading and applying the terms of the

Department’s policy and technical guidance is well within the discretion of the Commissioner. See

Final Decision, pp. 30-31.

               4.      A Decision on the Record was Appropriate in this Matter

       Therefore, even if there were an absolution prohibition in Massachusetts administrative law

upon final agency decision-makers making findings of fact when witness credibility is at issue, the

Final Decision would not be in error, because no questions of witness credibility had to be resolved

in the Final Decision. There was no need to review the conflicting expert testimony entered into the

record by the Applicant, because the burden of proof did not shift back to the Applicant on almost

all of the issues in this appeal. The remaining issues could be resolved on uncontested evidence.

The record reveals that a Final Decision on the record under a directed decision procedure would




In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 15 of 21
have been entirely appropriate in this case. There was no need for a remand to re-open or hold a

new hearing in this matter.12

V.      There Were No Other Errors of Fact or Law in the Final Decision and the Plan
        Narrative Governs over any Plan Discrepancy

        The Petitioner’s claims of error on my part regarding the following matters also lack merit:

        First, the Petitioner contends that the January 18, 2008 Plans show that the redesigned

stormwater system will intrude slightly into Buffer Zone, although the June 13, 2008 Plan Narrative

states that there is no such intrusion. See Plan Narrative, June 13, 2008, p. 2 (“the entire stormwater

management system … on the northern parcel is located outside of the buffer zone….”). The

Petitioner claims this means that the Final Decision was based upon a clearly erroneous fact. I

disagree. After a close measurement of location of the end of the riprap outlet from the Northern

Parcel stormwater system in relation to the 100 foot Buffer Zone line on the January 18, 2008 plan,

I agree that there is a measurable overlap of the riprap outlet into the Buffer Zone. I measured this

overlap, and it is less than 1/16 of an inch, or approximately 2.5 feet or less on the ground, based

upon the 1 inch to 40 foot scale of the plan. However, it is unclear whether this may have been a

printing error in the transfer of a riprap outlet graphic onto the plan. In addition, the clear language

of the Final Decision, approving a project with no structures, other than the access road, in Buffer



12
   The Department’s Commissioner has broad discretion in deciding whether a request to re-open a hearing is
warranted. “An agency may reopen a hearing … but we accord agencies broad discretion in deciding whether to do so,
and an agency's refusal to reopen is not disturbed absent an abuse of that discretion.” Box Pond Ass’n v. Energy
Facilities Siting Bd., 435 Mass. 408, 420 (2001). Since the burden never shifted on most issues and remaining issues
could be resolved on undisputed facts, resolution without further hearing was appropriate. In such cases, the
Department’s Commissioner routinely issues Final Decisions based only on a review of the written record. See 310
CMR 1.01(11)(e) and 310 CMR 1.01(14)(b). Resolution of the merits of an appeal on the record in such cases does not
deprive a Petitioner of its “day in court.” Matter of Lawrence Borins, Trustee Noon Hill Realty Trust, Docket No. 98-
140, Final Decision (July 22, 1999) and Decision of Motion for Reconsideration (August 19, 1999); see also, Matter of
Oxford Housing Authority, Docket Nos. 92-026 & 93-008, Final Decision (January 21, 1994) and Decision on Motion
for Reconsideration (February 22, 1994), aff’d in part as to legality of directed decision on the record, sub nominee,
Widen v. Oxford Housing Authority, Civ. No. WOCV94-004130, Memorandum and Order On Defendant’s Motion to
Dismiss (Worcester Super. Ct. October 20, 1994)

In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 16 of 21
Zone and wetlands, governed by the restrictions of the Plan Narrative would ensure that there would

be no such intrusion.13

         The Petitioner also claims, with no citation to legal authority, that a stormwater system

located in upland is within jurisdiction and must have impacts on the wetlands. Contrary to

Petitioner’s contention, the Wetlands Regulations are quite clear that jurisdiction only extends to

work in the Buffer Zone and, in the case of stormwater systems, only where “the point of discharge

falls within an Area Subject to Protection under [the Act] or within the Buffer Zone.” See, 310

CMR 10.05(6) and 1997 Stormwater Policy Handbook, p. 2 (Discharges not “within geographic

jurisdiction” cannot be regulated). The stormwater system will be located in upland, outside of any

wetlands resource area and outside of Buffer Zone. However, if any impacts do occur during or

after construction, the Department has ample enforcement authority to direct the Applicant to

remedy any damage and to seek reconstruction of the system to comply with the Act, the Wetlands

Regulations and the SOC conditions.14 See M.G.L. c. 131, § 40 and 310 CMR 10.08.

         Third, the Petitioner has claimed on several points that the Final Decision relied upon “facts

not in evidence.” The Final Decision relied only upon the evidence in the record, and it explains in

detail what evidence in the record supports its conclusions. For the most part, Petitioner’s


13
   It is important to note the larger context of the revised Northern Parcel plan, which reduced the overall footprint of
the project by more than 30,000 sq. feet of impervious surface and pulled all structures out of jurisdiction. In addition,
the stormwater system proposed in the June 13, 2008 Plan Narrative continued to be sized based on conservative
assumptions of “A” type soils, which Petitioner’s expert, Mr. Claytor agreed made the Applicant’s proposed stormwater
systems sized “conservatively” to hold more volume than required by the Department’s Stormwater Policy and
guidance. See, Hearing Transcript, Vol. I, pp. 120-121. The record supports a ruling that the originally proposed
project footprint met the standards of the Wetlands Regulations and protected the interests of the Act for a much larger
project that was less than 25 feet from the wetlands boundary, including the outlet for the stormwater system, also less
than 25 feet from the wetland. The smaller project reflected in the January 18, 2008 Revised Plans (and June 13, 2008
Plan Narrative) is even more protective.
14
   The Petitioner also misread the Final Decision as to the status of the proposed access roadway. The Final Decision
recognized that the Applicant maintained a proposal to construct the access roadway through jurisdictional wetlands
area, but also recognized that the January 18, 2008 Plans show that this portion of the proposal was unchanged. See
Final Decision at n. 7.

In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 17 of 21
objections are to the reliance by the Final Decision upon the language of the Department’s

regulations, policies and technical guidance documents. Such reliance is completely appropriate

and does not constitute relying upon “facts not in evidence.” Since a good number of Petitioner’s

claims related to noncompliance with the Stormwater Standards in the Department’s 1997

Stormwater Policy Handbook and technical requirements of the Department’s 1997 Stormwater

Management Technical Handbook, I reviewed and construed those documents in order to evaluate

Petitioner’s expert testimony.15

         Fourth, the Petitioner objects in its Motion for Consideration to comments in the Final

Decision regarding the Applicant’s and the Department’s evidence. Review of the Applicant’s and

Department’s evidence was not necessary in order to reach my conclusions that the Petitioner had

failed to meet its burden of going forward.16 In the few sub-issues where review of the Applicant’s

testimony was necessary, the evidence necessary to reach a final conclusion on Petitioner’s claims

was uncontested. As set forth in the Final Decision, while Mr. Claytor applied the terms of the

Department’s Stormwater Policy and Technical Handbooks to his analysis of the project’s

stormwater system, he did not always correctly report what the terms of these documents were. As

a result, Petitioner did not meet its burden of going forward on many issues.


15
   For example, I reviewed the requirements for compliance with Stormwater Standard 4 of the 1997 Stormwater
Policy, which required a calculation according to a formula. Mr. Claytor, the only witness for Petitioner on this issue,
neither completed this calculation nor stated an opinion about the ultimate compliance of the proposed stormwater
systems with Stormwater Standard 4. Therefore, I concluded that Mr. Claytor’s testimony was incomplete and did not
carry Petitioner’s burden of going forward to demonstrate noncompliance with Stormwater Standard 4. See Final
Decision, pp. 34-38. The Department has specialized expertise in reviewing the requirements of the Department’s 1997
Stormwater Policy and Technical Handbooks, referenced into the record by Petitioner’s expert witness, and applying
those requirements to expert testimony. This exercise was entirely appropriate in reaching a Final Decision in this
matter. See M.G.L. c. 30A, section 11(5) and 14(7).
16
   Although not legally necessary when a petitioner does not sustain its case, a review of the complete record to ensure
that the final wetlands permit is supported by a preponderance of the evidence is, in my view, consistent with the
responsibility of the Department’s Commissioner as the official making a final agency decision. The Final Decision is
the last opportunity for the Department to ensure that a wetlands permit is issued in conformance with the performance
standards of the Wetlands Regulations and that the permit protects the interests of the Act.

In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 18 of 21
         Fifth, the Petitioner contends that the Final Decision did not apply the proper burden of

proof to the Applicant. It appears that what the Petitioner is really arguing is that the Petitioner

believes that the Final Decision improperly imposed the burden of proving a violation of the

performance standard for bordering vegetated wetlands upon the Petitioner rather than the

applicable standards for work in Buffer Zone. See Petitioner’s Motion for Reconsideration, p. 17.17

In fact, the Final Decision used the appropriate requirements for work in Buffer Zone, as stipulated

to by the parties during the course of the litigation, namely, that ultimately, the project did not

“protect the interests of the Act,” as amended by the factors in Section 10.53(1). See 310 CMR

10.02(2)(b) (work in Buffer Zone), 310 CMR 10.05(6)(b) (stormwater systems) and 310 CMR

10.53(1). See Final Decision, pp. 16-17, 19-21 and 39-40. The Petitioner had to demonstrate, in the

case of the stormwater system, that the required Stormwater Standards in the Department’s 1997

Stormwater Policy and Technical Handbooks were not met, or that there were other impacts that

resulted in a project which did not further the interests of the Act. As stated in the Final Decision,

the Petitioner “has failed to prove that the other Stormwater Standards were violated or that an

equivalent level of protection was not provided to the wetlands resources on the Property.” See

Final Decision, pp. 19-20.18

         Finally, Petitioner also claims that the Final Decision imposed a burden upon the

Petitioner’s expert witnesses that is different than the burden imposed upon Applicant’s or the

17
   The cases cited by the Petitioner, Matter of Walden Woods, DEP Docket Nos. 2004-034 & 036, Final Decision (May
10, 2007) and Matter of Villages at Goddard Highlands Realty Trust, DEP Docket No. 2003-116, 13 DEPR 212, Final
Decision (July 25, 2006) both corrected holdings of DALA hearing officers who improperly imposed the performance
standard of “otherwise destroy or impair” on work in Buffer Zone, when this standard applies only to work in the
wetlands resource area. Petitioner also cites to Matter of Worcester School Department, DEP Docket No. 99-164, Final
Decision (February 22, 2002), but this was merely the approval of a settlement agreement.
18
   The Final Decision did quote from some language from the Walden Woods Recommended Final Decision, but did
not import the “otherwise destroy or impair” requirements from that decision. The Final Decision only applied the
regulatory standard, as articulated in the Walden Woods Final Decision, that the Petitioner must demonstrate that “the
project does not conform to the [Stormwater] Standards, or notwithstanding conformity, the work will not protect the
interests of the Act.” Matter of Walden Woods, Final Decision at p. 2, n. 2.
In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 19 of 21
Department’s expert witnesses. The Final Decision does not impose any burdens on Petitioner’s

expert witnesses, other than the burden of going forward to establish the elements of the Petitioner’s

claims. For example, with respect to Stormwater Standard 2, Petitioner claimed that the Applicant

had used an incorrect cover type in calculating the volumes needed for the proposed stormwater

system. However, while Mr. Claytor, Petitioner’s only witness on this issue, submitted a complete

opinion with supporting calculations in his direct testimony as to a 100% brush cover type, he

changed his position at the hearing. He admitted that the brush cover type, in fact, was not the only

appropriate cover type. He testified that the Project site was partially brush and partially meadow.

However, he did not present a calculation of compliance with Stormwater Standard No. 2 using

both cover types. Therefore, I concluded that Petitioner had not sustained the burden of going

forward. See Final Decision, pp. 24-26. I later discussed Mr. Peznola’s evidence and pointed to

other evidence in the record that supported the project as conditioned by the SOC. However, there

was no need to review this other evidence in order to conclude that the Petitioner had not met its

burden of going forward.

VI.    Summary and Conclusions

       As already discussed, the Department’s Commissioner has full authority to make findings of

fact and conclusions of law on all issues in dispute in this adjudicatory appeal. It was fully within

my authority to resolve factual and legal issues where the record revealed that no questions of

witness credibility needed to be resolved and that there were no conflicts in evidence. There is no

need for further proceedings in order for a final wetlands permit to issue. Substantial due process

during five (5) years of proceedings has already been accorded to the Petitioner’s claims regarding

the much larger 186-unit project. The final 156-unit project, as represented by the Applicant’s

revised plan, is a more protective project that promotes the interests of the Act. The Petitioner had


In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 20 of 21
ample notice of the issues, a full opportunity to present evidence, and a full M.G.L. c. 30A hearing

with cross-examination of witnesses. The Petitioner also had the opportunity to argue that a smaller

156-unit project was not permissible at the hearing and to make further arguments through an Order

to Show Cause prior to the Final Decision. Conducting yet another hearing or remanding to DALA

for findings on the smaller and more protective 156-unit project is not necessary.

       Therefore, I direct the Department’s Northeast Regional Office to prepare a Final Order of

Conditions consistent with the Final Decision and this Final Decision on Reconsideration within

five (5) business days of the date of this decision.

       Any party may appeal this Decision to the Superior Court pursuant M.G.L. c. 30A, §14(1).

The complaint must be filed in the Court within thirty days of receipt of this Decision.




                                                       ________________________________
                                                       Laurie Burt
                                                       Commissioner




In the Matter of Princeton Development, Inc., Bedford
OADR Docket No. 2006-157, DALA Docket No. DEP-07-47, File No. 103-585
Final Decision on Reconsideration
Page 21 of 21

				
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