Argued November 6, 2014.
Civil action commenced in the Superior Court Department on June 25, 2004.
The case was heard by Mitchell H. Kaplan, J., on motions for judgment on the pleadings.
Jill Brenner Meixel ( Vincent J. Pisegna with her) for the plaintiff.
Wade M. Welch ( Melissa C. Donohoe with him) for the defendant.
Present: Trainor, Agnes, & Maldonado, JJ.
The Wetlands Protection Act, G. L. c. 131, § 40 (act), sets forth " minimum wetlands protection standards, and local communities are free to impose more stringent requirements." Oyster Creek Preservation, Inc.
v. Conservation Commn. of Harwich, 449 Mass. 859, 866, 874 N.E.2d 1104 (2007). As we noted in Fafard
v. Conservation Commn. of Reading, 41 Mass.App.Ct. 565, 568, 672 N.E.2d 21 (1996), it is not uncommon for a town, under its local by-law, to establish wetland protection standards that are more demanding
than those under State law. In such a case, when a local commission concludes that a project meets the requirements of State law, but does not satisfy the requirements of municipal law, it " introduces no legal dissonance and violates no principle of State preemption." Ibid. In Healer
v. Department of Envtl. Protection, 73 Mass.App.Ct. 714, 718, 901 N.E.2d 161 (2009), we explained the requirements that must be met by a local conservation commission that decides to act independent of State law by exercising jurisdiction over wetlands exclusively on the basis of a more stringent local by-law.
In the present case, the by-law of the town of Winchester (local by-law) has a more expansive standard for " land subject to flooding" than does the act. Nevertheless, the plaintiff, Parkview Electronics Trust, LLC (Parkview), contends that an order of resource area delineation (ORAD) issued by the conservation
commission of Winchester (commission) is invalid under Healer because it was not based " exclusively" on the more stringent provisions of local law. In effect, Parkview maintains that Healer requires a local commission to choose between reliance on State law or local law. For the reasons that follow, we reject this reading of Healer and affirm the judgment.
The essential facts are not in dispute. Parkview owns an industrial park (property) located in Winchester, consisting of seven buildings in which many businesses are located. The property has often been subject to flooding given its proximity to the Aberjona River. In 1996 and 1998, the Aberjona River overflowed its banks and flooded the property. In 1999, to protect the property, Parkview raised the driveway on the property (also referred to as berm) from 25.5 feet above sea ...