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Nelson v. Onservation Commission of Wayland

Appeals Court of Massachusetts, Middlesex

August 31, 2016

KENNETH TODD NELSON
v.
CONSERVATION COMMISSION OF WAYLAND.

          Heard: May 16, 2016.

         Zoning, 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.

         The case was heard by Peter B. Krupp, J., on a motion for judgment on the pleadings.

          George F. Hailer for the plaintiff.

          Mark J. Lanza for the defendant.

          Present: Rubin, Milkey, & Neyman, JJ.

          RUBIN, J.

         The plaintiff[1] 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.[2] 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. (2014).

         The 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.

         The 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."

         Section 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."

         The 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 community."

         We 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 wetland.

         That 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 . . . ."[3] § 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.

         Likewise, 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 vegetation ...


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