Heard: May 16, 2016.
By-law, Wetlands. Municipal Corporations, Conservation
commission, By-laws and ordinances. Practice, Civil, Action
in nature of certiorari. Civil action commenced in the
Superior Court Department on December 3, 2014.
case was heard by Peter B. Krupp, J., on a motion for
judgment on the pleadings.
F. Hailer for the plaintiff.
J. Lanza for the defendant.
Present: Rubin, Milkey, & Neyman, JJ.
plaintiff appeals from a judgment of the Superior
Court affirming a determination by the conservation
commission of Wayland (commission) that there are wetlands on
his property. That determination was made under
Wayland's wetlands and water resources protection by-law.
See chapter 194 of the Wayland town code (2015) (by-law).
Under the by-law's definition, wetlands are protected
more broadly than they are under the Wetlands Protection Act
and the accompanying regulations. See § 194-1 of the
by-law ("The purpose of this chapter is to provide a
greater degree of protection of wetlands, buffer zones, and
related water resources, than the protection of these
resource areas provided under [G. L.] c. 131, § 40, and
the Wetlands Regulations promulgated thereunder by the
Massachusetts Department of Environmental Protection").
Compare § 194-2 of the by-law, with G. L. c. 131, §
40, and 310 Code Mass. Regs. §§ 10.01 et seq.
plaintiff agrees that the town has the authority to provide
such broader protection, but argues that the commission's
decision here was not supported by substantial evidence. The
plaintiff brought an action in the nature of certiorari (G.
L. c. 249, § 4) in the Superior Court. The plaintiff
moved for judgment on the pleadings pursuant to Mass.R.Civ.P.
12(c), 365 Mass. 754 (1974). The judge denied the motion and
upheld the commission's decision. This appeal followed.
commission made two findings supporting its conclusion that
the property at issue contains wetlands within the meaning of
the by-law. These findings, in full, provide that
"[p]lants including [r]ed [m]aple, American [e]lm, skunk
cabbage, and other hydrophilic vegetation comprise at least
50% of the vegetational community." Further,
"[r]unoff water from surface drainage frequently
collects above the soil surface."
194-2 of the by-law defines "wetland" as
"[w]et meadows, marshes, swamps, bogs, and other areas
where groundwater, flowing or standing surface water or ice
provide a significant part of the supporting substrate for a
hydrophilic plant community, or emergent and submergent plant
communities in inland waters."
commission argues that the its findings mean that the
property contains a wetland falling within the
"catch-all" portion of the definition of wetland,
specifically an "other area where groundwater, flowing
or standing surface water or ice provide a significant part
of the supporting substrate for a hydrophilic plant
defer to the commission's reasonable construction of the
by-law. See generally Fafard v.
Conservation Commn. of Reading, 41 Mass.App.Ct. 565,
572 (1996) ("Although the commission is entitled to all
rational presumptions in favor of its interpretation of its
own by-law, there must be a rational relation between its
decision and the purpose of the regulations it is charged
with enforcing"). We understand the commission to have
concluded that where "[r]unoff water from surface
drainage frequently collects above the soil surface" and
"hydrophilic vegetation comprise[s] at least 50% percent
of the vegetational community, " then "standing
surface water . . . provide[s] a significant part of the
supporting substrate for a hydrophilic plant community"
within the meaning of the by-law's definition of a
construction is reasonable. The definition of swamp, one
subcategory of wetland under the by-law, is "[a]n area .
. . where runoff water from surface drainage frequently
collects above the soil surface and where at least 50% of the
vegetational community is made up of, but is not limited to
nor necessarily includes all of, the following plants or
groups of plants: . . . American or white elm, . . . red
maple, skunk cabbage . . . ." § 194-2 of the by-law.
This part of the by- law demonstrates that a construction of
the by-law is reasonable under which, where there is a
hydrophilic plant community, "runoff water from surface
drainage frequently collect[ing] above the soil surface"
renders "standing surface water ... a significant part
of the supporting substrate" for that community within
the meaning of the by-law.
in light of the fifty percent threshold utilized in the
definition of swamp, it is reasonable to construe the phrase
"hydrophilic plant community" as it is used in the
by-law to include property on which "hydrophilic