Opinion
No. 11–P–1690.
2012-06-14
WILLIAMS BROS., INC., OF MARSHFIELD v. CONSERVATION COMMISSION OF CARVER & another.
By the Court (WOLOHOJIAN, SMITH & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff seeks to build a single-family home on a lot in the town of Carver that is adjacent to property owned by defendant George Peck on which there is a cranberry bog. On November 16, 2007, Peck filed a request for determination of applicability (RDA), under G.L. c. 131, § 40, with defendant conservation commission of Carver (conservation commission). Specifically, Peck sought a determination that a particular area of his property was a “perennial stream” and that a second area was a “[s]pring-fed Ag pond.” The conservation commission, pursuant to both the Wetlands Protection Act, G.L. c. 131, § 40, and § I(C)(1)-(4) of the Carver by-law (by-law), determined that Peck's property contained a “perennial stream” and a “spring-fed agricultural pond/reservoir.”
The by-law, including the provisions upon which the conservation commission based its determination, do not define or employ either of the phrases, “perennial stream” or “spring-fed agricultural pond/reservoir.” The plaintiff, pursuant to G.L. c. 249, § 4, filed a complaint in the nature of certiorari in the Superior Court seeking (among other things) to have the conservation commission's determination “annulled.” On cross motions for judgment on the pleadings, a judge determined that, because the by-law incorporates the definitions of the Code of Massachusetts Regulations applicable to the Wetlands Protection Act, and because the by-law was not more stringent than the Wetlands Protection Act, the conservation commission could not render a final determination on whether the areas constituted a “perennial stream” or a “spring-fed agricultural pond/reservoir.” That said, the judge denied the plaintiff's motion for judgment on the pleadings seeking to “annul” the conservation commission's determination. The plaintiff moved for reconsideration, which the judge denied, stating that the Department of Environmental Protection (DEP) shall have jurisdiction to review the conservation commission's application of the Wetlands Protection Act. The plaintiff has appealed the judge's denial of its request that the conservation commission's determination be “annulled.” Peck has not appealed the determination that the conservation commission lacked jurisdiction to make a final determination on whether the areas constituted a “perennial stream” or a “spring-fed agricultural pond/reservoir.”
The conservation commission's full determination was “1. Area depicted on plan as ‘perennial stream’ is a perennial stream; its length was measured in field by Commission and found to be 96' 8? from its entry from pond/reservoir, through its channel, to end at flow-control structure/flume. 2. ‘Spring-fed Ag pond’/reservoir depicted on plan as such is a spring-fed agricultural pond/reservoir; its size was measured in field by Commission and found as follows: its west side = /115' 11?, its south side = /39' 6?, its east side = /78' 10?, then heading west = 22' 7?, then heading north = 34' 1?, & its north side = /66' 8?, or approx. 9,000 sq. ft.”
We agree with the judge that this case is controlled in all material respects by Healer v. Department of Envtl. Protection, 73 Mass.App.Ct. 714 (2009), and DeGrace v. Conservation Commn. of Harwich, 31 Mass.App.Ct. 132 (1991). The terms “perennial stream” and “spring-fed agricultural pond/reservoir” are not defined in the by-law. Instead, the by-law incorporates the definitions of the Code of Massachusetts Regulations applicable to the Wetlands Protection Act.
No more stringent requirement applicable to the circumstances at hand is imposed by the by-law than that imposed by the Wetlands Protection Act. As a result, the DEP—not the conservation commission—has the final word on whether any portion of Peck's property constitutes a “perennial stream” or a “spring-fed agricultural pond/reservoir.” DeGrace, supra at 136. Because the conservation commission's determination was not “based exclusively on the specific terms of [the] by-law which are more stringent than the act,” the conservation commission exceeded its permissible autonomous decision-making authority when it determined that areas of Peck's land were a “perennial stream” and a “spring-fed agricultural pond/reservoir.” Healer, supra at 718. The final power to make those determinations rests exclusively with the DEP.
Section V of the by-law provides: “The definitions applicable to the Carver Wetlands Bylaw shall be the same as set forth in 310 CMR 10.00 except for the following modifications to those definitions and additional definitions.” None of the modifications applies to this case.
The plaintiff apparently filed a request for a superseding determination of applicability with the DEP on January 24, 2008. DEP issued a superseding order of conditions and a superseding determination of applicability on October 9, 2008.
“[O]nce the [DEP] issued its superseding order, the appeal from the commission's order to the [Superior] Court was moot, and the [Superior] Court judge should have dismissed the case before him.... [W]e cannot condone a procedure which would allow two separate avenues of appeal.” DeGrace, supra. For this reason, the plaintiff was not entitled to have the conservation commission's determination “annulled,” and the judge should have dismissed the plaintiff's complaint.
The record does not contain any of these documents from the DEP process. It does, however, contain the DEP's decision on the motion to stay the DEP proceedings pending the Superior Court decision. The record does not indicate that the parties informed the Superior Court judge of the DEP proceedings or decision(s), matters of which the judge should have been informed by the parties.
The judgment of the Superior Court is vacated, and a new judgment shall enter dismissing the complaint.
So ordered.