Nelson v. Conservation Commission of Wayland

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15-P-1437 Appeals Court
KENNETH TODD NELSON vs. CONSERVATION COMMISSION OF WAYLAND.
No. 15-P-1437.
Middlesex. May 16, 2016. - August 31, 2016.
Present: Rubin, Milkey, & Neyman, JJ.
Zoning, By-law, Wetlands. Municipal Corporations, Conservation
commission, By-laws and ordinances. Practice, Civil,
Action in nature of certiorari.
Civil action commenced in the Superior Court Department on
December 3, 2014.
The case was heard by Peter B. Krupp, J., on a motion for
judgment on the pleadings.
George F. Hailer for the plaintiff.
Mark J. Lanza for the defendant.
RUBIN, J. The plaintiff1 appeals from a judgment of the
Superior Court affirming a determination by the conservation
commission of Wayland (commission) that there are wetlands on
1
The plaintiff is the successor in interest to a purchase
and sale agreement for the property, which is an unimproved lot
at 8 Hill Street in Wayland.
2
his property.2 That determination was made under Wayland's
wetlands and water resources protection by-law. See chapter 194
of the Wayland town code (2015) (by-law). Under the by-law's
definition, wetlands are protected more broadly than they are
under the Wetlands Protection Act and the accompanying
regulations. See § 194-1 of the by-law ("The purpose of this
chapter is to provide a greater degree of protection of
wetlands, buffer zones, and related water resources, than the
protection of these resource areas provided under [G. L.]
c. 131, § 40, and the Wetlands Regulations promulgated
thereunder by the Massachusetts Department of Environmental
Protection"). Compare § 194-2 of the by-law, with G. L. c. 131,
§ 40, and 310 Code Mass. Regs. §§ 10.01 et seq. (2014).
The plaintiff agrees that the town has the authority to
provide such broader protection, but argues that the
commission's decision here was not supported by substantial
evidence. The plaintiff brought an action in the nature of
certiorari (G. L. c. 249, § 4) in the Superior Court. The
plaintiff moved for judgment on the pleadings pursuant to
Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974). The judge denied the
2
The commission held a three-session public hearing on the
plaintiff's request for a determination that there are not
wetlands on his property. Testimonial, documentary, and
photographic evidence was presented. Site visits were also
conducted.
3
motion and upheld the commission's decision. This appeal
followed.
The commission made two findings supporting its conclusion
that the property at issue contains wetlands within the meaning
of the by-law. These findings, in full, provide that "[p]lants
including [r]ed [m]aple, American [e]lm, skunk cabbage, and
other hydrophilic vegetation comprise at least 50% of the
vegetational community." Further, "[r]unoff water from surface
drainage frequently collects above the soil surface."
Section 194-2 of the by-law defines "wetland" as "[w]et
meadows, marshes, swamps, bogs, and other areas where
groundwater, flowing or standing surface water or ice provide a
significant part of the supporting substrate for a hydrophilic
plant community, or emergent and submergent plant communities in
inland waters."
The commission argues that the its findings mean that the
property contains a wetland falling within the "catch-all"
portion of the definition of wetland, specifically an "other
area[] where groundwater, flowing or standing surface water or
ice provide a significant part of the supporting substrate for a
hydrophilic plant community."
We defer to the commission's reasonable construction of the
by-law. See generally Fafard v. Conservation Commn. of Reading,
41 Mass. App. Ct. 565, 572 (1996) ("Although the commission is
4
entitled to all rational presumptions in favor of its
interpretation of its own by-law, there must be a rational
relation between its decision and the purpose of the regulations
it is charged with enforcing"). We understand the commission to
have concluded that where "[r]unoff water from surface drainage
frequently collects above the soil surface" and "hydrophilic
vegetation comprise[s] at least 50% percent of the vegetational
community," then "standing surface water . . . provide[s] a
significant part of the supporting substrate for a hydrophilic
plant community" within the meaning of the by-law's definition
of a wetland.
That construction is reasonable. The definition of swamp,
one subcategory of wetland under the by-law, is "[a]n area . . .
where runoff water from surface drainage frequently collects
above the soil surface and where at least 50% of the
vegetational community is made up of, but is not limited to nor
necessarily includes all of, the following plants or groups of
plants: . . . American or white elm, . . . red maple, skunk
cabbage . . . ."3 § 194-2 of the by-law. This part of the by-
3
The commission made no finding that any area of the
property constituted a "swamp," perhaps because the by-law
definition of swamp does not include "other hydrophilic
vegetation," within its list of qualifying vegetation. Rather
it contains a finite list of vegetation. Some of the vegetation
found by the abutter's consultant on the property is not on that
list. Whether or not the commission could have found that the
property contained "swamp" within the meaning of the by-law, the
5
law demonstrates that a construction of the by-law is reasonable
under which, where there is a hydrophilic plant community,
"runoff water from surface drainage frequently collect[ing]
above the soil surface" renders "standing surface water . . . a
significant part of the supporting substrate" for that community
within the meaning of the by-law.
Likewise, in light of the fifty percent threshold utilized
in the definition of swamp, it is reasonable to construe the
phrase "hydrophilic plant community" as it is used in the by-law
to include property on which "hydrophilic vegetation comprise[s]
at least 50% percent of the vegetational community."
Given the commission's reasonable construction of the
catch-all provision, the judgment below must be affirmed if
there was substantial evidence supporting the commission's two
findings, as those findings suffice to bring the property within
the definition of property containing wetland under the by-law.
See Lovequist v. Conservation Commn. of Dennis, 379 Mass. 7, 17-
18 (1979) (conservation commission decision reviewed for
substantial evidence). See also Dubuque v. Conservation Commn.
of Barnstable, 58 Mass. App. Ct. 824, 828-829 (2003) (to
overturn commission's decision, plaintiff must show that
commission does not defend its decision on this ground, and we
do not decide the issue.
6
commission's decision was arbitrary and capricious or
unsupported by substantial evidence).
In claiming that the commission's decision is not supported
by substantial evidence, the plaintiff argues first that the
commission erred in determining that runoff water "frequently"
collects on the property. The abutter's consultant stated in
her report, which was in evidence before the commission, that
"several times throughout the year . . . . [w]ater flows across
the site as sheet flow and ponds within the numerous small
depressions." Again, we defer to the commission's construction
of its own by-law as long as it is reasonable. Its
interpretation of the by-law to mean that pooling "several times
throughout the year" amounts to "frequent" pooling sufficient to
meet the by-law requirement that "standing surface water . . .
provide[s] a significant part of the supporting substrate for a
hydrophilic plant community" is not unreasonable. As described,
there is substantial evidence of such pooling.
Likewise, the plaintiff's expert's statement that
"[p]ortions of the site contain a predominance of wetland
indicator species (largely facultative red maple trees)" and the
abutter's expert's statement that the property contains "a clear
predominance of wetland indicator plants," including red maple,
American elm, and skunk cabbage, amount to substantial evidence
in support of the finding by the commission that over fifty
7
percent of the vegetational community is made up of hydrophilic
plants.
The plaintiff argues finally that the absence of hydric
soil on the property strongly detracts from a finding that there
are wetlands and requires a conclusion that the commission's
decision was not supported by substantial evidence. Although
the presence of hydric soil may be relevant to whether property
contains a protected wetland under State and Federal law, the
definition in the by-law permits the conclusion that a wetland
exists despite the absence of hydric soil. Contrast 7 C.F.R.
§ 12.2(a) (2016) (wetland defined to require "predominance of
hydric soils"); 310 Code Mass. Regs. § 10.55(1) (2014) (hydric
soil characteristics relevant in some circumstances to a finding
of inundated or saturated conditions necessary to the existence
of a wetland under State-law definition). Since there was
substantial evidence to support the commission's decision, the
judgment below is affirmed.
So ordered.