BOTSFORD, J.
In July of 2008, the plaintiffs filed an appeal in the Superior Court from a decision of the defendant board of health of Southbridge (board) approving a "minor modification" to the site assignment for an existing landfill and related processing facility in that town under G.L. c. 111, § 150A (§ 150A).
We transferred the plaintiffs' appeal from the judgment to this court on our own motion to consider in particular the issue of the plaintiffs' standing to seek judicial review in the Superior Court of the board's decision. However, there is a threshold issue whether the appeal must be dismissed because the plaintiffs' notice of appeal was not timely filed in the Superior Court. For the reasons we shall discuss, we conclude that Mass. R.A.P. 4(a), as amended, 430 Mass. 1603 (1999), did not authorize the allowance of the plaintiffs' motion to file their notice of appeal late, and consequently their appeal must be dismissed. Nevertheless, because the parties have fully presented and briefed both the standing issue and the plaintiffs' substantive challenges to the board's decision, we review both of these issues in this opinion. We conclude that on the record before the court, (1) the plaintiffs lacked standing to seek judicial review of the board's decision in the Superior Court; and (2) the plaintiffs' substantive challenges to the decision lack merit.
The basic background facts are not in dispute.
Between March 27 and May 21, 2008, the board held a public hearing on SRDP's modification request. On March 27, the first of what turned out to be eleven hearing dates, the hearing officer admitted the plaintiff ten-citizen groups (citizen groups) as "Parties" to the hearing with the right to participate fully in it. See 310 Code Mass. Regs. § 16.20(9), (10)(e). Through their counsel, the citizen groups did so by presenting and cross-examining witnesses, presenting and responding to motions, making opening and closing statements to the board's hearing officer, and submitting a proposed decision. At the hearing, approximately sixty witnesses testified, and seventy-two exhibits were admitted as well as seven chalks. The board issued its decision on June 9, 2008. It granted SRDP's application for a minor modification of the site assignment, but with fifty-eight specific conditions imposed. The plaintiffs timely filed their complaint for judicial review in the Superior Court on July 8, 2008, naming the board and SRDP as defendants.
The Superior Court judgment entered on December 16, 2009. Under rule 4(a), the plaintiffs were required to file their notice of appeal in the Superior Court within thirty days of that date.
On February 3, 2010, SRDP and the board jointly moved to strike the notice of appeal as untimely filed. At the hearing on the defendants' motion, held on March 23, the motion judge permitted the plaintiffs' counsel to make an oral motion to enlarge the time to file the notice of appeal under Mass. R.A.P. 4(c), as appearing in 378 Mass. 928 (1979).
Acting on the invitation of the single justice, SRDP and the board press their claim that the plaintiffs' appeal must be dismissed because the motion judge did not have the power to allow the plaintiffs' motion to enlarge the time for filing the notice of appeal. We agree. Under rule 4(c), a lower court judge may extend the time to file only if the request to extend is made within sixty days of entry of the judgment to be appealed—that is, within thirty days from the expiration of the thirty-day period prescribed by rule 4(a). See, e.g., Shaev v. Alvord, 66 Mass.App.Ct. 910, 910-911 (2006) ("Having missed the thirty-day deadline, the plaintiff was required, under Mass. R.A.P. 4[c] ... to file a motion seeking leave to file an appeal late within the next thirty days"). See also Commonwealth v. Boutwell, 21 Mass.App.Ct. 201, 205 (1985) ("it is clear that a trial judge does not have the power to permit a defendant to file a notice of appeal beyond the sixty-day period"); Commonwealth v. Lopes, 21 Mass.App.Ct. 11, 16 (1985) (where trial judge purported to allow defendant to claim appeal from conviction well beyond sixty-day period permitted by rule 4(c), judge's action was "nullity"). Here, the plaintiffs did not move to enlarge until March 23, 2010, more than ninety days after entry of the Superior Court judgment.
On or shortly before the first hearing date on SRDP's modification application, the plaintiffs filled out and submitted to the board registration forms entitled, "Registration of 10-Citizen Group." Each form contains an identical printed statement purporting to explain how the individuals signing the form as members of the citizen group would be affected by the proposed site assignment modification.
After the plaintiffs filed their complaint for judicial review in the Superior Court, SRDP and the board moved to dismiss, claiming that the plaintiffs were not persons "aggrieved" by the board's final decision, and therefore lacked standing to bring an action under G.L. c. 30A, § 14, and § 150A. A Superior Court judge other than the motion judge denied the defendants' motion, reasoning that because the plaintiffs had been afforded full party status in the board's proceedings, they were entitled automatically to bring an action for judicial review of the board's decision as "aggrieved" persons. Later, in ruling on the plaintiffs' motion for judgment on the pleadings, the motion judge rejected the defendants' argument that the plaintiffs lacked standing for the same reason.
To set a framework for consideration of the standing issue, we begin with a review of the pertinent statutory and regulatory provisions.
The siting and permitting of landfills and related facilities is governed by § 150A and the department's site assignment regulations, 310 Code Mass. Regs. §§ 16.00. Under § 150A, a person seeking to operate a site for a new landfill (or processing) facility or to expand an existing facility must submit a site assignment application to the appropriate local board of health, which is required "to hold a public hearing satisfying the requirements of [G.L. c. 30A]." Id. An owner or operator of an existing facility requesting a "minor modification" of the site assignment is not required to submit a full site assignment application, but the board is required to hold a public hearing on the request. 310 Code Mass. Regs. § 16.22(3). The department's regulations include a section prescribing "public hearing rules" to govern the public hearing process. See id. at § 16.20. One of these, § 16.20(9)(a), sets out requirements for party intervention in the proceeding before the board. This regulation provides that persons may intervene as parties if they make a written request and are considered by the hearing officer to be "specifically and substantively affected." It goes on to state that any citizen group of ten or more persons (ten citizen group) "shall be considered to be specifically and substantially affected" and entitled to register as a "party" to a public hearing where damage to the environment "is or might be at issue." See note 13, supra.
The final relevant statutory provisions relate to appeals. Section 150A states that "[a]ny person aggrieved" by the board's siting decision may appeal pursuant to G.L. c. 30A, § 14, and "[f]or the limited purposes of such an appeal," the board's final decision "shall be deemed to be a final decision in an adjudicatory proceeding." G.L. c. 111, § 150A. General Laws c. 30A, § 14, in turn, provides that judicial review is available to "any person ... aggrieved by a final decision of any agency in an adjudicatory proceeding."
As the statutory provisions just quoted indicate, understanding the meaning of the term "person ... aggrieved" in c. 30A, § 14, is critical. "In order to maintain an action for review [under c. 30A, § 14], a party must be aggrieved in a `legal sense' and show that `substantial rights' have been `prejudiced.'" Group Ins. Comm'n v. Labor Relations Comm'n, 381 Mass. 199, 202-203 (1980), quoting Duato v. Commissioner of Pub. Welfare, 359 Mass. 635, 637-638 (1971).
It is true that some of our decisions contain language suggesting an agency's designation of a person as an intervener with the right to participate fully as a party brings with it the right to seek judicial review of the agency decision as an "aggrieved person." See, e.g., Save the Bay, Inc. v. Department of Pub. Utils., 366 Mass. 667, 672-673, 676 (1975) (Save the Bay).
The public hearing before the board, however, was not an adjudicatory proceeding, as 310 Code Mass. Regs. § 16.20(1), states explicitly,
The grant of full party status to citizen groups under 310 Code Mass. Regs. § 16.20(9) presumably is designed to enable the board to receive relevant information about environmental effects of proposed siting decisions from a broad array of persons. But the regulation and its purpose do not themselves entitle the plaintiffs to seek judicial review of the board's final decision as persons "aggrieved." See Ginther v. Commissioner of Ins., 427 Mass. at 324 ("Mere participation in the administrative process does not confer standing to raise a claim in the Superior Court").
The administrative record does not support a conclusion that any of the plaintiffs will suffer prejudice to their individual rights. The only record evidence on the issue is the set of registration forms. These reflect that the plaintiffs live in the "vicinity" of the landfill, although not necessarily in Southbridge itself.
To summarize: although, pursuant to 310 Code Mass. Regs. § 16.20(9), the plaintiffs qualified as interveners with full party status before the board, the record does not support their claim that they have standing to appeal to the Superior Court as persons "aggrieved." As interveners, the plaintiffs would have the right to intervene in an appeal brought by an aggrieved person whether or not they were aggrieved themselves, G.L. c. 30A, § 14(2), see note 16, supra, but on the present record they were not entitled directly to initiate an action for judicial review. The defendants' motion to dismiss the plaintiffs' complaint should have been allowed for lack of standing. Nevertheless, for reasons stated earlier, we turn briefly to the merits of the plaintiffs' challenge to the board's decision.
At issue is the board's decision to grant SRDP a minor modification to its existing site assignment.
The plaintiffs assert that the board's decision should be reversed because it is based on two errors of law. In particular, they claim that the board (1) erroneously expanded the acreage that previously had been site assigned, based on SRDP's misrepresentation of that area in its application for a minor modification; and (2) incorrectly approved a modification for the processing facility even though that facility is not (a) located on land that was properly site assigned, or (b) a permitted accessory use of an existing site assigned area. These claims are without merit.
Contrary to the plaintiffs' repeated assertions, the record demonstrates that both the landfill and processing facilities are located on land that was site assigned either in 1979 or in 1999. The plaintiffs argue that only 20.6 acres of land was site assigned in the 1979 site assignment. However, that site assignment was not for a specifically delineated acreage, but for "a tract of land presently owned by George Corriveau in the Barefoot Road section of Southbridge." In 1979, before the town of Southbridge changed its boundaries (see St.1993, c. 210), the tract in question was approximately sixty-four acres. The site assignment designated 20.6 acres of it for waste disposal, but the over-all site assignment was for the bigger tract, namely, the full sixty-four acres of land previously owned by Corriveau and located in Southbridge.
Turning to the plaintiffs' argument focused on the processing facility, to the extent it depends on the claim that the facility is not on site assigned land, it must fail because, as just discussed, both the landfill and processing facilities are located on land that was properly site assigned in 1979 and 1999. The plaintiffs' additional claim that "processing" is not a properly approved use of the site also must be rejected: the processing activity undertaken at this facility was and is a recognized exception to the general prohibition, spelled out in 310 Code Mass. Regs. § 16.21(3), against conducting a different solid waste activity on an area site assigned for a specific solid waste purpose. See 310 Code Mass. Regs. § 16.21(3)(a) (1994) ("Recycling or composting may be approved at any assigned, permitted active disposal or handling facility without requiring a new or modified site assignment when such activity is integrated into the assigned solid waste management operation and the tonnage limits ...").
The plaintiffs' final argument is that the modification sought by SRDP in 2008 in substance was a "major" modification, and the board improperly treated it as a "minor" modification, thereby permitting SRDP to avoid the more rigorous review that § 150A and the department's regulations called for. The claim cannot succeed because it necessarily depends on acceptance of the plaintiffs' position that the landfill and processing facilities currently operate on land that has not properly been site assigned—a position that we have rejected.
For the reasons discussed in this opinion, the plaintiffs' appeal must be dismissed.
So ordered.
A request for a major modification requires that the applicant submit to the local board of health a new site assignment application and a positive site suitability determination by the department, and then participate in a public hearing conducted by the local board. See 310 Code Mass. Regs. §§ 16.22(2), 16.08, 16.20. As stated earlier, an application for a minor modification requires only that the board hold a public hearing on the request. See id. at § 16.22(3).