DocketNumber: 18-P-364
Citation Numbers: 122 N.E.3d 1102, 94 Mass. App. Ct. 1120
Filed Date: 1/31/2019
Status: Precedential
Modified Date: 7/24/2022
The plaintiffs, trustees of Baker Avenue Trust (trust), filed a complaint in the Superior Court seeking certiorari review of a decision of the conservation commission of Kingston (commission) denying the plaintiffs' notice of intent (NOI) requesting an order of conditions to build a single-family home on lot 105 located on Cole Avenue in Kingston (property).
Background. In 2007, the plaintiffs filed an NOI with the commission requesting an order of conditions to build a single-family home on the lot. After a public hearing in 2009, the commission denied the plaintiffs' request, concluding that it met neither the performance standards set forth in the Wetlands Protection Act (WPA), see G. L. c. 131, § 40, nor the town of Kingston's (town's) wetlands protection bylaw (wetlands bylaw) and the regulations promulgated thereunder (regulations). That same year, the Department of Environmental Protection (DEP) issued a superseding order of conditions, approving construction under the WPA. In 2011, a judge of the Superior Court vacated the commission's decision and remanded the matter for reconsideration. Public hearings regarding the lot reopened on February 19, 2013, and closed on August 6, 2013.
On remand, the commission unanimously denied the request for a second time, for four reasons. First, the commission found that the proposal did not meet the performance standards stated in § 6.01 of the regulations because the construction phase of the project, and a portion of the house and much of the yard, would impinge on the twenty-five-foot buffer zone, and would thereby contravene the regulation's interest in protecting the wetland values specified in the regulation.
Discussion. The plaintiffs' primary argument on appeal is that the judge improperly relied on an incorrect assertion, made by the town during the hearing on the plaintiffs' motion for judgment on the pleadings, that the plaintiffs had subdivided property on Cole Avenue and thus "knowingly created a lot of questionable value." On appeal, the commission acknowledges that the lot was subdivided by others, and that the representation made to the judge was made in error.
However, this error, and the judge's reliance on it, is of no moment on appeal, where we review the record afresh. " 'We review de novo [a] judge's order allowing a motion for judgment on the pleadings under [ Mass. R. Civ. P. 12 (c),
Without citation to authority or specific reference to the record, the plaintiffs also contend that the judge's decision lacked evidentiary support. The two-sentence statement to this effect in the plaintiffs' appellate brief does not rise to the level of appellate argument. See Mass. R. A. P. 16 (a) (4), as amended,
Nonetheless, we have reviewed the record with care and conclude that there has been no error. The plaintiffs assert that there was substantial evidence to support granting the NOI, and that the commission was required, under the wetlands bylaw and the regulations, to grant a waiver. However, the plaintiffs have failed to show that the commission's decision was unsupported by the evidence, arbitrary, capricious, or based on an error of law.
Article 9 of the wetlands bylaw places the burden of proof on the permit applicant and specifically provides that the "[f]ailure to provide adequate evidence ... supporting a determination that the proposed work will not harm the interest protected by this bylaw shall be sufficient to cause the Commission to deny a permit." Section 4.01 of the regulations further provides that
"[a]ny person who files a written application for a permit ... to perform work within an Area Subject to Protection has the burden of demonstrating to the Conservation Commission by a preponderance of the credible evidence submitted by qualified experts in support of all matters asserted by the applicant (1) that the area is not significant to the protection of any of the interests identified in the By-Law, or (2) that the proposed work will contribute to the protection of the interests identified in the By-Law, or (3) that the presumption set forth in these regulations concerning the Area Subject to Protection is not valid."
The first and third factors are not before us. The plaintiffs did not challenge the validity of the presumptions set forth in the regulations designating the protected areas or the buffer zone, and no argument has been made on appeal that the presumptions are invalid or that the area is not significant. We therefore treat the commission's enforcement of the buffer zone requirements as a legitimate exercise of its authority.
We turn then to the second factor, that is, whether "the proposed work will contribute to the protection of the interests in the By-Law." The commission held hearings, visited the lot, and reviewed the plaintiffs' plan to reduce the size of the house and yard, eliminate land grading, install a siltation fence, and fill and replicate the wetlands. The commission concluded that the plaintiffs failed to meet their burden of proof under the regulations because the proposal placed the house within 13.6 feet of a stream, within the twenty-five-foot undisturbed buffer zone, and would have disturbed over 420 feet within the buffer zone, thereby adversely affecting the town's interest in erosion control, wildlife, wildlife habitats, wetland plants, wetland plant habitats, fisheries, the quality of ground and surface water, and the prevention of pollution. The commission's decision was fully supported and was not arbitrary or capricious. See Rodgers v. Conservation Comm'n of Barnstable,
The plaintiffs' final contention is that the commission was required to grant a waiver because the application of the regulations resulted in an unconstitutional taking. The commission concluded that there was no taking because "[t]he parcel is just one out of a much larger purchase of land, portions of which have been developed or are proposed for development. In addition, ... there is likely more value to the land as open space and/or as part of a separate, and active, proposed development, that includes the subject lot, than the provided Real Estate Agent opinion of value."
Section 2.09(A)(3) of the regulations authorizes the commission to waive a provision of the regulations, including the twenty-five-foot buffer zone requirement, if "the applicant has presented credible documentary evidence proving that ... the variance is necessary to accommodate an overriding community, regional, state or national public interest, or that it is necessary to avoid a Permit that so restricts the use of property as to constitute an unconstitutional taking without compensation." However, the plaintiffs did not produce any evidence that the development was necessary to accommodate an overriding community, regional, State, or national public interest.
Nor did the plaintiffs meet their burden to show the regulation rose to the level of a taking. See Gove v. Zoning Bd. of Appeals of Chatham,
The realtor's letter set forth an estimate, not an appraisal. It did not consider other alternative uses. See Gove,
The commission's conclusion that the plaintiffs failed to satisfy their burden of proof was not arbitrary, capricious, or an error of law. See
Judgment affirmed.
Lot 105 is further identified as shown on assessors map 58.
Certiorari review is limited "to correct[ing] errors of law in administrative proceedings where judicial review is otherwise unavailable." State Bd. of Retirement v. Bulger,
During the pendency of the case, the town increased the size of the buffer zone, but the commission applied the twenty-five-foot limit in place at the time the NOI was filed.
The plaintiffs offered to mitigate the harm by filling the wetlands and replicating them elsewhere. The commission stated that the plan was inappropriate because it would create a greater disturbance within the buffer zone. Notably, the DEP also conditioned its superseding order of conditions on the removal of this portion of the plan.
The plaintiffs purchased the parcel of land, including lot 105, in 1987. The plaintiffs still own lots 108 and 109.
Cf. G. L. c. 30A, § 11 (5), governing administrative notice by State agencies, which provides as follows: "Agencies may take notice of any fact which may be judicially noticed by the courts, and in addition, may take notice of general, technical or scientific facts within their specialized knowledge. Parties shall be notified of the material so noticed, and they shall be afforded an opportunity to contest the facts so noticed. Agencies may utilize their experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to them."