Opinion
14-P-1970
10-06-2015
MARK PLASSE, trustee, v. CONSERVATION COMMISSION OF BRIDGEWATER.
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 plaintiff appeals from a judgment entered on the pleadings in this certiorari action brought pursuant to G. L. c. 249, § 4. At issue is whether the conservation commission of Bridgewater (commission) acted arbitrarily and capriciously when it denied, for the second time, an order of conditions. We conclude that the commission's order did not rest on adequate findings and, for that reason, was arbitrary and capricious. Furthermore, because the commission has now twice had the opportunity to make adequate findings, we conclude that reversal, rather than remand, is the appropriate remedy.
Background. Mark Plasse purchased the property at issue in 2005, mistakenly believing that it could be used for his masonry business. After discovering that the property was zoned for residential use, he sought to build a single-family home instead. Portions of the property are located within the buffer zone of a bordering vegetated wetland (BVW) area, as defined by the Wetlands Protection Act, G. L. c. 131, § 40, and the town's wetlands protection by-law. As a result, Plasse was required to file a notice of intent (NOI) and to receive an order of conditions.
A garage was located on the property, which Plasse subsequently caused to be removed.
On March 9, 2010, Plasse filed a NOI seeking to build a single-family home, which included plans identifying the location of the proposed project, a septic system design plan, and a wetland report prepared by an engineering firm. The commission, after two public hearings, voted to deny Plasse an order of conditions for three reasons:
"The [commission] is of the opinion that numerous fills deposited on-site in the past have caused deleterious impact on the adjoining bordering vegetated wetlands (BVW) resources and have resulted in actual loss of previously existing in situ BVW.
"The proposed dwelling configuration and placement would engender and perpetuate future encroachment on the adjoining BVW as homeowners seek to expand their yard around the dwelling in order to make their home more functional and enjoyable.
"A BVW resource also exists on land across the street from the subject site; therefore, potential failure of the proposed septic system and any subsequent replacement or
upgrade of a septic system in failure would stress the in situ BVW."
Plasse challenged the commission's decision by filing the underlying action in the nature of certiorari, and moved for judgment on the pleadings. After hearing, a Superior Court judge remanded the matter to the commission for further findings. The judge's order explicitly pointed out that (1) the Department of Environmental Protection had approved a waiver of the setback requirement for Plasse's proposed septic system, and that the issue of the septic system had been resolved in a superseding order of conditions; (2) although a portion of the then-existing BVW had been filled during construction of the public way, the filling was not attributable to Plasse and had occurred before he owned the property; and (3) contrary to the requirements of the by-law, the commission had failed to make any finding that the BVW had been harmed by Plasse. The judge ordered that the commission, on remand, make findings specific to whether the project identified in the NOI would harm the BVW.
On remand, after additional hearings, the commission affirmed its initial decision and again denied the order of conditions. The minutes of the hearings reflect that members of the commission visited the site, that a neighbor testified he had seen Plasse fill in areas that contained vegetation, and that three trees had died as a result. The minutes also reflect that town counsel advised the commission that the Superior Court judge's remand order required it to make specific findings to explain the basis for its decision. Ultimately, the commission explained its reasons as follows:
"In light of the testimonies received regarding the historical wetland filling on the site, and the continued wetland fillings and alteration during the intervening period since the original decision of the Commission on the application, the Commission has determined that it cannot adequately and properly determine with any degree of certainty the aggregate filling and alteration work that could prove catastrophic or the viability of the wetlands ecology at the locus. The Commission therefore believes that it cannot adequately condition the project to meet the local wetland protection bylaw and its attendant regulations. The project does not meet performance standards and regulations of Bridgewater Local Wetland Bylaw Section 7, J and R."
Subsequently, Plasse renewed his motion for judgment on the pleadings. The renewed motion was denied by a different Superior Court judge. Although the judge's decision was thoughtful and detailed, our de novo review, Home Depot v. Kardas, 81 Mass. App. Ct. 27, 30 (2011), leads us to a different conclusion for the reason set out below. See Fieldstone Meadows Dev. Corp. v. Conservation Commn. of Andover, 62 Mass. App. Ct. 265, 267 (2004) (on appeal of action brought pursuant to G. L. c. 249, § 4, "[o]ur review gives no special weight to the view of the Superior Court judge").
Discussion. Where, as here, we are reviewing an action that "entails matters committed to or implicating a board's exercise of administrative discretion, the court applies the 'arbitrary and capricious' standard." Garrity v. Conservation Commn. of Hingham, 462 Mass. 779, 792 (2012). Our task in this context is to examine "the agency action to determine whether it was authorized by the governing statute -- here the [town] by-law -- in light of the facts." Fafard v. Conservation Commn. of Reading, 41 Mass. App. Ct. 565, 568 (1996). "If the agency has acted for reasons that are extraneous to the prescriptions of the regulatory scheme, but are related, rather, to an ad hoc agenda, then that agency has acted arbitrarily because the basis for action is not uniform, and, it follows, is not predictable." Ibid. Put another way, "our task is not to determine whether the record contains substantial evidence to support the commission's action, but, rather, to decide whether the commission exercised its discretion arbitrarily and capriciously. A decision is not arbitrary and capricious unless there is no ground which reasonable [persons] might deem proper to support it." Garrity v. Conservation Commn. of Hingham, supra (quotations and citations omitted).
Plasse argues the commission acted arbitrarily and capriciously by failing to address specifically either the work proposed by the NOI or its impact on the BVW. We agree. Under § 6 of the by-law, the commission's charge was to determine whether "the activities which are the subject of the application are likely to have significant or cumulative effect upon the wetland values protected by this By-Law." Although the commission has the power to deny an application or to approve an application and impose conditions, it is not empowered to reach either conclusion without first engaging in the fact finding and analysis required by § 6.
Section 6 further provides: "If it issues a permit, the Commission shall impose conditions, which it deems necessary or desirable to protect those values, and all activities shall be done in accordance with those conditions." The commission may deny a permit for several different reasons, including "[w]here no conditions would adequately protect the wetland values protected by this By-Law."
Here, the commission's decision does not reveal that it engaged in the necessary process required by § 6 or by the Superior Court judge's remand order. The decision does not, for example, address any specifics of the NOI or the project. The project is described as "[c]onstruction of a single family house with driveway, septic system and associated grading. Work to be completed within buffer zone to bordering vegetated wetlands." The commission's decision does not address the proposed impact (if any) of the driveway, septic system, or grading. Indeed, nowhere in the decision are these facets of the project even mentioned. To be sure, the commission's decision refers to the potential impact of filling. But the project, as proposed, does not entail fill. In other words, the commission appears to have rested its decision on an activity that is not part of the proposed project, while failing to address those that are. The situation here is analogous to that we faced in Fieldstone Meadows Dev. Corp. v. Conservation Commn. of Andover, 62 Mass. App. Ct. at 269, where we concluded that "[t]he commission's findings demonstrate no consideration of the particularities of the proposed detention basin or of the evidence as to the actual or potential effect of the proposed work on the adjacent wetlands."
Similarly, although the commission cites §§ 7(j) and 7(r) of the by-law in its denial, it does not explain their relevance and none is readily apparent. Section 7(j) provides that "[t]here shall be a 25-foot 'no activity' buffer around a [BVW] for all construction activities including but not limited to grading and brush dumping." The NOI does not propose any construction activities in the twenty-five foot buffer zone other than placing erosion control barriers. Under Section 7(r), such barriers are permitted within the buffer zone with the approval of the commission. And the commission made no finding (which would appear to be improbable in any event) that the erosion control barriers "are likely to have significant or cumulative effect upon the [protected] wetland values."
Section 7(r) requires the installation of erosion control barriers, such as staked silt fence or staked hay bales, no closer than twenty-five feet to the boundary of an approved BVW, "[e]xcept as otherwise approved by the [commission]."
For the same reason, although we acknowledge that the commission made a specific finding that Plasse had engaged in past filling on the site and that three trees had died, that finding does not support what was required here: namely, a determination that construction activities proposed in the NOI "are likely to have significant or cumulative effect upon the wetland values." Furthermore, the existence of past violations -- without more -- is not a legally tenable ground for denying an application. Fafard v. Conservation Commn. of Reading, 41 Mass. App. Ct. at 571. Moreover, even were we to accept the commission's argument that § 7(g) of the by-law requires it to consider the cumulative impact of prior activities on the site, that section applies only to projects that involve wetland filling -- something, as noted above, that is not part of the project proposed in the NOI.
The commission makes no argument that it cannot determine the appropriate boundary of the BVW because of existing illegal fill.
Section 7(g) provides in relevant part: "For any project that involves [BVW] resource filling and replication, the [commission] shall consider any prior work on site that may have involved BVW filling and replication, and shall consider the cumulative impact of all prior site activities as part of its evaluation of a project's viability."
Just as past violations of the by-law cannot support the denial of an application, neither can potential prospective ones. Ibid. Thus, the commission's reliance on potential future encroachment in the event the owners seek to expand their yard and on potential future failure and replacement or upgrade of the septic system is misplaced.
For these reasons, we conclude that the commission's denial of Plasse's application was arbitrary and capricious. The judgment affirming the commission's decision is reversed, and a new judgment shall enter remanding the case to the commission, which is to issue an order of conditions authorizing construction of the project. See Fafard v. Conservation Commn. of Reading, 41 Mass. App. Ct. at 572.
Our decision makes unnecessary any consideration of Plasse's regulatory taking claim.
So ordered.
By the Court (Meade, Wolohojian & Milkey, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 6, 2015.