Opinion
19-P-796
05-11-2020
BOSTON CLEAR WATER COMPANY, LLC v. CONSERVATION COMMISSION OF LYNNFIELD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Boston Clear Water Company, LLC (BCW), appeals from a judgment on the pleadings after certiorari review of the conservation commission of Lynnfield's issuance of an order of conditions. See G. L. c. 249, § 4. The commission denied approval of the construction of an equipment storage area and driveway located within one hundred feet of a natural spring and wetland resource area. On appeal, BCW contends that the commission's order of conditions, which expanded the no-build zone from fifty to one hundred feet, was arbitrary, capricious, and an abuse of discretion. We affirm.
Background. In May, 2017, BCW filed a notice of intent (NOI) seeking permission to alter the grounds around its commercial spring water business. Specifically, BCW sought to install a septic system, to construct an addition to an existing water distribution building, to replace utility lines from the spring to the existing water distribution building, to remove debris adjacent to the wetlands near the spring, to install security fencing, to construct a circular arbor and new water distribution station, to build a new vehicle storage area, and to replace the existing driveway by building a new driveway to that vehicle storage area.
The "vehicle storage area" referred to in the NOI is later referred to by the parties as an "equipment storage area" in the order of conditions and briefs.
Following three public hearings, several site visits, and review of reports written by the parties' consultants, the commission issued an order of conditions approving all but two improvements sought by BCW -- construction of the proposed equipment storage area and construction of the proposed driveway leading to that equipment storage area. The commission set out its rationale for the denial of these two proposals in condition 22:
"This denial is based on the fact that the Commission feels that this is a unique site with a lot of existing disturbed area, the proposed work would require the removal of a large number of trees and clearing, the extensive regrading of the storage area and driveway as well as potential impacts to and degradation of the existing wetland in a manner that cannot be mitigated, by increasing sunlight potentially impacting the flora and fauna in the wetland area and destruction of wildlife in the area. Under the Town of Lynnfield Environmental Bylaw the Commission determined that due to the sensitivity of the wetlands and the spring the 50 foot No Build Zone should be expanded to 100 feet in this area."BCW then filed a complaint in Superior Court, seeking certiorari review pursuant to G. L. c. 249, § 4. In a thoughtful memorandum and order on the parties' cross motions for judgment on the pleadings, the motion judge dismissed BCW's complaint.
Standard of review. "The standard of review under G. L. c. 249, § 4, varies according to the nature of the action for which review is sought." Fieldstone Meadows Dev. Corp. v. Conservation Comm'n of Andover, 62 Mass. App. Ct. 265, 267 (2004). "Here, where the action sought to be reviewed was the proper exercise of the commission's discretion in the imposition of conditions for the protection of wetlands, an arbitrary and capricious standard should be applied" (quotation and citation omitted). T.D.J. Dev. Corp. v. Conservation Comm'n of North Andover, 36 Mass. App. Ct. 124, 128 (1994). "We review the commission's [decision] to determine whether it was arbitrary and capricious in that it acted for reasons 'extraneous to the prescriptions of the regulatory scheme, but are related, rather, to an ad hoc agenda.'" Fieldstone Meadows Dev. Corp., supra at 267, quoting Fafard v. Conservation Comm'n of Reading, 41 Mass. App. Ct. 565, 568 (1996).
Discussion. 1. Degradation. BCW contends that the commission used an incorrect standard to assess the risk of degradation when it expanded the no-build zone from fifty to one hundred feet. "It is not clear from the record before us that this argument was raised below, but since the defendant does not contend that it was not, we reach the issue." Anderson v. Fox Hill Village Homeowners Corp., 424 Mass. 365, 366 n.1 (1997).
In denying the requests, condition 22 referred to the "potential for long term erosion" and "potential impacts to and degradation of the existing wetland." The commission's regulations require a showing that "there are site-specific conditions that, if altered, would be likely to result in degradation of a resource area." Conservation commission regulations § 320-2(B). BCW maintains that by using the word "potential," and failing to use the term "likely," the commission impermissibly altered the showing required and thus acted arbitrarily and capriciously.
Conservation commission regulations § 320-2(B) provides:
"There shall be a no-build zone with a minimum depth of 100 feet measured horizontally from the border of any vernal pool and 50 feet measured horizontally from the border of any other resource area (the 'no-build zone'). Except for wetlands crossings specifically permitted by the Commission and except as otherwise specifically provided in these regulations or pursuant to a variance as set forth below, prohibited activities within the no-build zone include, but are not limited to, construction of any structure, installation of any impervious surface, and any work requiring a building permit. Fences, swing sets and similar play structures may be permitted within the no-build zone (but not within the no-disturb zone) with the approval of the Commission. Without limiting the generality of the foregoing, there shall be no buildings, houses, garages, sheds, dumpsters, decks, porches, additions, tennis courts, swimming pools, retaining walls, septic systems, leaching fields, above- or belowground tanks, generators, air-conditioning equipment or asphalt surfaces within the no-build zone. The Commission, in its sole discretion, may require a no-build zone of greater depth than the above-described minimums where there are site-specific conditions that, if altered, would be likely to result in degradation of a resource area" (emphasis added).
We begin by noting that a Lynnfield wetland protection bylaw establishes that "lands within 100 feet of [wetland] resource areas, are presumed important to the protection of these resource areas because activities undertaken in close proximity have a high likelihood of adverse impact upon these areas, either immediately, as a consequence of construction, or over time, as a consequence of daily operation or existence of the activities" (emphasis added). Lynnfield bylaws § 240-6(C). The one hundred foot presumption may be reduced where an applicant "prov[es] by a preponderance of the credible evidence that the work proposed in the permit application will not have unacceptable significant or cumulative effect upon the resource area values protected by this bylaw." Lynnfield bylaws § 240-11. Construed in light of the applicable bylaw, we understand the term "likely" in the regulation to mean a significant or cumulative impact, occurring either immediately or over time. So understood, the difference between the commission's use of the terms "potential" and "likely" is not one of substance.
The bylaw also permits the commission to adopt regulations to "determine the size of each type of protected area."
Even if we were to adopt BCW's view that there is a material difference between the terms "potential" and "likely," the result would be no different. "A decision is not arbitrary and capricious unless there is no ground which reasonable [persons] might deem proper to support it" (quotation and citation omitted). T.D.J. Dev. Corp., 36 Mass. App. Ct. at 128. Moreover, "the commission is entitled to all rational presumptions in favor of its interpretation of its own by-law" or regulation. Fafard, 41 Mass. App. Ct. at 572. The commission need not use the word "likely" where the commission's findings support a conclusion that a proposed building and road within one hundred feet of a wetland resource is likely to degrade the wetland resource. As the motion judge correctly determined, the standard of review resolves this issue: as long as the commission's decision is supported by substantial evidence that the proposal would be likely to result in degradation of the wetland resource area, the commission did not act arbitrarily or capriciously.
2. Substantial evidence. Relying on Fieldstone Meadows Dev. Corp., 62 Mass. App. Ct. at 269-270 & n.7, BCW maintains that the commission lacked substantial evidence to issue condition 22 because it improperly assumed that a one hundred foot no-build zone was necessary. In Fieldstone Meadows Dev. Corp., we held that that a "no-build zone 'policy' [was] not lawfully adopted as a regulation, and contain[ed] no requirement of uniform application. . . . The decision to deny the permit on the basis of such a policy was therefore arbitrary." Id. at 268. Here the commission relied not on an ad hoc policy, outside of the regulatory framework, see id., at 266 n.1 & 269, but on a lawful regulation adopted pursuant to the express authority granted to the commission in the Lynnfield bylaws. See Lynnfield bylaws § 320-2(B) (discretionary no-build zone regulation); Lynnfield bylaws § 240-7 (rulemaking authority). Consequently, BCW's reliance on Fieldstone Meadows Dev. Corp. is misplaced.
The Lynnfield bylaws provide, in pertinent part:
"After public notice and public hearing, the Conservation Commission shall promulgate rules and regulations to effectuate the purposes of this bylaw, effective when voted and filed with the Town Clerk. Failure by the Commission to promulgate such rules and regulations or a legal declaration of their invalidity by a court of law shall not act to suspend or invalidate the effect of this bylaw."Lynnfield bylaws § 240-7(A).
Additionally, BCW argues that the commission imposed condition 22 "to appease angry neighbors and abutters." There is no support for this contention in the record. BCW's consultants suggested to the commission that any given location for the equipment storage area would likely bother at least one of the abutters. In response, one commissioner stated that "my primary concern is not, with all due respect, the views of the abutters. I'm concerned about protecting the wetland habitat."
Indeed, the record supports the commission's concern that construction of the equipment storage area and the driveway leading to it would require taking down an indeterminate number of trees in a wooded area, resulting in erosion of the steep hillside above the spring, a material change in the sunlight patterns, and a substantial impact on the flora in the area. In addition to the maps depicting grade and topography, the commission heard that there would be "a lot of tree cutting" and that "the effect of increased sunlight could be to change what plants are taking hold." These "are site-specific conditions that, if altered, would be likely to result in degradation of a resource area." Conservation Commission Regulations § 320-2(B).
It was further explained to the commission that "plants that like a wooded environment, like it shady, those are going to wither, but other plants will take over" and that "[y]ou'll get different species in."
The commission offered BCW alternatives outside of the one hundred foot no-build zone, and also offered to suspend the hearing and hold an additional day of hearing to discuss the expansion of the no-build zone if BWC so desired. BWC did not agree to the alternative site or request a further hearing.
Conclusion. The commission had before it a record which supported the conclusion that, given site-specific conditions, the proposed alterations would likely result in the degradation of a wetland resource area. The commission's adoption of condition 22 and expansion of the no-build zone in accordance with its regulations was not arbitrary or capricious.
Judgment affirmed.
By the Court (Green, C.J., Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 11, 2020.