Opinion
No. 06-911.
January 29, 2008.
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS INTRODUCTION
The plaintiff, Wojcicki McPartland Development, L.L.C. (Wojcicki), brought an action in certiorari for review of a decision by the defendant, Amesbury Conservation Commission (Commission), which issued an Order of Conditions that denied Wojcicki approval for a building project. Wojcicki moves for judgment on the pleadings. The court orders judgment declaring that the Commission's decision was not based on a more stringent Amesbury Wetland Protection Bylaw (Amesbury Bylaw).
BACKGROUND
Wojcicki owns land at 122 Congress Street in Amesbury, and wanting to construct a residential subdivision (project), filed a Notice of Intent (application) with the Massachusetts Department of Environmental Protection (Department) and Commission in September of 2003.
The Commission held several meetings between March and July of 2004 and voted to remove lot one from the application at its meeting on July 19, 2004. The Commission then voted to approve the remaining nine lots.
Wojcicki alleges that it withdrew lot one from the application, however, the minutes of the meeting indicate that the Commission voted to remove lot one from the application. There is nothing in the record indicating that Wojcicki withdrew lot one voluntarily.
The Commission issued an Order of Conditions for the project on August 23, 2004, and an abutter appealed the Commission's Order of Conditions to the Department. The Department eventually issued a Superseding Order of Conditions.
The Commission alleges that the Order of Conditions for the application was issued with the explicit exclusion of lot one as a building lot, however, the Order of Conditions do not state that lot one cannot be built on. The conditions merely state that lot one was eliminated from the project.
Wojcicki filed a new application for lot one with the Commission and the Department in January of 2006, which included changes to the layout and location of the proposed home.
The Department notified Wojcicki that it did not need to file the new application, but instead should file for an amendment to the prior Superseding Order of Conditions issued by the Department on the first application. Wojcicki withdrew the new application and filed to amend the prior Superseding Order of Conditions.
In February of 2006, after Wojcicki presented the revised plans to the Commission, the Commission discussed the project and concluded that it wanted more information from the Department about the new application.
The Commission held a second hearing on Wojcicki's application in March of 2006. The Commission felt the slope was too steep to allow for protection to the wetland resource area. The Commission voted to not approve an Order of Conditions for the application and issued an Order of Conditions denying the application. The Commission found that "the slope was too steep to allow protection to the wetland resource area." The Commission did not mention the Amesbury Bylaw in the Order of Conditions or in the minutes of the meeting.
Wojcicki then brought this case on May 18, 2006. At the time the case was filed, the Department's decision on amending the Superseding Order of Conditions was pending. On December 1, 2006, the Department issued an amended Superseding Order of Conditions approving the project including lot one.
DISCUSSION
A. Standard of Review
The function of certiorari review is to correct a quasi-judicial tribunal's errors of law, where the errors of law are apparent on the record, adversely affect the petitioner's material rights, and the errors would not otherwise be subject to review. See G.L. c. 249, § 4;MacHenry v. Civil Service Comm'n, 40 Mass. App. Ct. 632, 634-635 (1996) (Department of Personnel Administration's interpretation of its role in a bypass of promotional candidates was reasonable construction of the statute). In seeking relief, a petitioner must demonstrate that any error of law was "so substantial and material that, if allowed to stand, [it] will result in manifest injustice to the petitioner who is without any other remedy." Tracht v. County Comm'rs Worcester, 318 Mass. 681, 686 (1945).
Review is confined "to the reasons given by the commission for the denial of the application." Fieldstone Meadows Dev. Corp. v.Conservation Comm'n Andover, 62 Mass. App. Ct. 265, 266 n. 2 (2004). Cf.Canter v. Planning Bd. Westborough, 4 Mass. App. Ct. 306, 307 (1976) ("The Superior Court's review, and ours, must be confined to the reasons for disapproval of the subdivision plan stated by the planning board").
B. Order of Conditions
"It is well established that municipalities may enact more stringent requirements than those provided in the [Wetland Protection] Act."FIC Homes of Blackstone v. Conservation Comm'n., 41 Mass. App. Ct. 681 (1996) (citing Lovequist v. Conservation Comm'n of Dennis, 379 Mass. 7 at 14-15 (1979)). "When a local conservation commission rests its decision on a wetlands by-law that provides greater protection than the act, its decision cannot be preempted by a [Department] superseding order." Id. at 687 (citing DeGrace v. Conservation Comm'n of Harwich, 31 Mass. App. Ct. 132, 136 (1991)). Where the local by-law does not impose more stringent controls than those set by the legislature or the Department, the Department has the authority to issue a superseding order which negates the municipal disapproval. DeGrace, at 136.
The Commission did not make any findings implicitly or explicitly based on the Amesbury Bylaw. The Commission's stated reason, taken from the minutes of the meeting on March 20, 2006, for issuing an Order of Conditions denying approval for the project was that "the Commission felt the slope was too steep to allow protection to the wetland resource area." This implicates three components, 1) a wetland resource area, 2) the resource area values needing protection, and 3) the performance standard conditions that cannot be met.
(1) Wetland Resource Area
The Commission cited 310 Code Mass. Reg. 10.55 (4)(a) in the Order of Conditions. This is the Performance Standard for the resource area identified as Bordering Vegetated Wetlands.
Bordering Vegetated Wetlands are defined in the State Regulations promulgated pursuant to G.L. c. 131, § 40 as freshwater wetlands, which include wet meadows, marshes, swamps and bogs. 310 Code Mass. Reg. 10.55 (2)(a). The Amesbury Bylaw § 2 provides ". . . resource areas: [include] any freshwater or coastal wetland; marshes; wet meadows; bogs; swamps . . ." There is no difference between the State Regulations and the Amesbury Bylaw concerning the identified wetland resource area of Bordering Vegetated Wetlands. (2) Resource Area Values
There is no evidence that the project involved coastal wetlands.
The Order of Conditions identified five wetland resource area values. The five values checked off were, 1) Public Water Supply, 2) Prevention of Pollution, 3) Groundwater Supply, 4) Storm Damage Prevention, and 5) Flood Control.
The State Regulations list these five resource area values and others subject to protection. 310 Code Mass. Reg. 10.01 (2). The Amesbury Bylaw § 1 also lists these five interests and others. There is no difference between the State Regulations and the Amesbury Bylaw concerning the identified resource area values to be protected.
(3) Performance Standard Conditions
The Commission cited 310 Code Mass. Reg. 10.55 (4)(a) as the applicable performance standard. Section 10.55 (4)(a) states, "[w]here the presumption set forth in 310 Code Mass. Reg. 10.55 (3) is not overcome, any proposed work in a Bordering Vegetated Wetland shall not destroy or otherwise impair any portion of said area."
Section 10.55 (3) states that the presumption, which is rebuttable, is "[w]here a proposed activity involves the removing, filling, dredging or altering of a Bordering Vegetated Wetland, the issuing authority shall presume that such area is significant to the interests specified in 310 Code Mass. Reg. 10.55 (1)."
Section 10.55 (1) is the preamble for Bordering Vegetated Wetlands, and it explains the functions and importance of these areas.
An "Order of Conditions shall impose such conditions as are necessary to meet the performance standards set forth in 310 Code Mass. Reg. 10.21 through 10.60 for protection of those areas found to be significant to one or more interests identified in G.L. c. 131, § 40." 310 Code Mass. Reg. 10.05 (6)(b). "The Order shall prohibit any work or any portion thereof that cannot be conditioned to meet said standards."Id.
The Amesbury Bylaw § 7 provides, "[t]he Commission is empowered to deny a permit . . . where no conditions are adequate to protect those values." The Amesbury Bylaw is not more stringent than the State Regulations in that projects unable to meet conditions to protect resource area values can be prohibited.
The court's review of the Commission's Order of Conditions is restricted to the Commission's stated reason. Fieldstone Meadows Dev. Corp. v. Conservation Comm'n of Andover, 62 Mass. App. Ct. 265. The Commission's decision was not based on a local bylaw which is more stringent than the State Regulations. A local conservation commission must base its decision on a more stringent local bylaw in order for its order to be upheld against a Department's Superseding Order of Conditions. FIC Homes of Blackstone v. Conservation Comm'n., 41 Mass. App. Ct. 681.
ORDER
On the plaintiff Wojcicki McPartland Development, L.L.C.'s motion for judgment on the pleadings, judgment shall enter for the plaintiff declaring that the decision of the Amesbury Conservation Commission on Order of Conditions number 2-912 was not based on a local bylaw or regulation that is more stringent than the applicable Massachusetts Department of Environmental Protection regulations.
This case will be dismissed within thirty days unless either party objects, in writing.