T.D.J. DEVELOPMENT CORPORATION vs. CONSERVATION COMMISSION OF NORTH ANDOVER & another. [Note 1]

PORADA, J. Pursuant to the Wetlands Protection Act, G. L. c. 131, Section 40, and the town's wetland protection by-law, chapter 178, the plaintiff filed a notice of intent with the conservation commission of North Andover for the filling of 250 square feet of bordering vegetative wetlands and the performance of work in the buffer zone adjacent to the wetlands in order to construct a roadway in its subdivision. The commission approved the work subject to forty-six conditions.

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To a number of those conditions the plaintiff objected and filed an appeal with the Department of Environmental Protection (department) under G. L. c. 131, Section 40. The plaintiff also lodged a complaint in the Superior Court for a declaratory judgment and for a review in the nature of certiorari of the commission's decision under the town's by-law. Upon review under Section 40, the department issued a superseding order of conditions, eliminating the offending conditions, from which no appeal was taken. Cross motions for summary judgment were then filed in the Superior Court action. In granting summary judgment to the plaintiff, the judge ruled that the town's by-law was less stringent than the Wetlands Protection Act, and, thus, that the department's superseding order of conditions governed the project. The judge also ruled that, if he were in error in determining the relative stringency of the by-law and the act, the commission's imposition of two of its conditions (numbers 15 and 29) was arbitrary and capricious and, hence, invalid. A third condition (number 37) he found not to be unreasonable or arbitrary and capricious.

On appeal from the ensuing judgment entered in the Superior Court in favor of the plaintiff, the commission challenges only the judge's determination that the town's by-law is less stringent than the Wetlands Protection Act and the judge's denial as to three of the conditions imposed by the commission on the project, namely: (1) condition 15, a twenty-five foot no-cut and a fifty foot no-construction zone from the edge of the adjacent wetland resource areas, except for the approved wetland crossing and drainage discharge at the entrance of the subdivision; (2) condition 29, the placement of a filter fabric fence backed by a single row of staked hay bales between all construction areas and wetland areas; and (3) condition 37, the maintenance during the construction period of dumpsters outside the wetlands resource area for the storage and removal of waste generated by the construction. We discuss each of these claims.

1. The by-law. The Wetlands Protection Act, G. L. c. 131, Section 40, "establishes minimum Statewide standards leaving local

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communities free to adopt more stringent controls." Golden v. Selectmen of Falmouth, 358 Mass. 519, 526 (1970). Lovequist v. Conservation Commn. of Dennis, 379 Mass. 7, 14-16 (1979). When a municipality adopts a by-law or ordinance that is consistent with the Wetlands Protection Act, but that imposes more stringent controls than the standards set by the Legislature, the local requirement trumps what is required under G. L. c. 131, Section 40. Hamilton v. Conservation Commn. of Orleans, 12 Mass. App. Ct. 359, 368 (1981). DeGrace v. Conservation Commn. of Harwich, 31 Mass. App. Ct. 132, 135-136 (1991). Here, the commission acted both under Section 40 and the town's by-law, c. 178-3A. [Note 2] It is the commission's position that the by-law provides greater protection to wetlands in North Andover than the act. In determining whether the commission is correct, we focus only on those provisions of the by-law and act that relate to the three contested conditions. See Lovequist v. Conservation Commn. of Dennis, supra at 14-16.

The commission rests its argument on the ground that its by-law regulates all activity within the buffer zone, see Section 178-3A, while the State regulations provide for regulation of activity in a buffer zone only if the activity will "alter" a wetland resource area, see 310 Code Mass. Regs. Section 10.02(2)(b) (1989). This is a significant difference. Under the State regulations, a party is required to file a notice of intent for work in the buffer zone only when it has been shown that the work will alter a protected area. 310 Code Mass. Regs. Section 10.02(2)(b) (1989). While the word "alter"

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under the State regulations is given an expansive definition, see 310 Code Mass. Regs. Section 10.04 (1989), the regulation necessitates proof that an alteration of a wetlands protected area will occur and that the specific activity within the buffer zone will be the cause of the alteration. See Hollands, Comparison of Jurisdiction Between Local, State and Federal Wetland Laws and Regulations In Massachusetts from a Scientific View Point, in Regulation of Work in Massachusetts Wetlands and Floodplains 1, 9-10 (Mass. Continuing Legal Educ. 1988). The town by-law, on the other hand, requires the filing of a notice of intent whenever work is to be performed in the buffer zone, without a showing that the work will have an impact on a wetland resource area. See note 2, supra. Consequently, the by-law's scope of control is more expansive than that of the act and eliminates the burden of proof problems associated with the State regulation.

The commission also argues that its by-law is more stringent than the act because it adds erosion control, sedimentation control, and recreation, Section 178-1, [Note 3] to the eight interests protected by the act, G. L. c. 138, Section 40, and 310 Code Mass. Regs. Section 10.01(2) (1989). By expanding the interests to be protected under the by-law, the commission may impose conditions which might not be permissible under the act. See Kreiger, Local Wetlands By-Laws and Hearings, in Wetlands, A Guide to Understanding a Complex Federal, State and Local Regulatory Scheme 39, 43 (Mass. Continuing Legal Educ. 1991).

Insofar as the by-law regulates all activity performed in the buffer zone and provides for the protection of additional

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interests not covered by the act, the conservation commission was acting pursuant to a by-law which provided greater protection to the wetland resource areas than the act.

2. The challenged conditions. The judge determined that the imposition of the no-cut and no-construction limitation in the buffer zone and the requirement of a double siltation barrier were invalid conditions because they were "arbitrary, unreasonable or capricious, not grounded in evidence and therefore not supportable." He determined that the requirement of placement of dumpsters outside the wetland resource areas for the storage and removal of waste material was reasonable.

In reviewing his decision, the first issue to be addressed is the standard of review applicable to the plaintiff's complaint for relief in the nature of certiorari under G. L. c. 249, Section 4. The standard of review varies according to the nature of the action for which review is sought. McSweeney v. Town Manager of Lexington, 379 Mass. 794, 800 (1980). Forsyth School for Dental Hygienists v. Board of Registration in Dentistry, 404 Mass. 211, 217 (1989). Here, where the action sought to be reviewed was the proper exercise of the commission's discretion in the imposition of conditions for the protection of wetlands, an "arbitrary and capricious" standard should be applied. Forsyth School for Dental Hygienists v. Board of Registration in Dentistry, supra at 217 & n.2. The case is analogous to those in which a special permit is sought under a zoning by-law. Ibid. Compare Lovequist v. Conservation Commn. of Dennis, supra at 17-19 (substantial evidence test applied in upholding town's denial of an application for construction of a roadway over a wetlands area after a notice of intent filed pursuant to G. L. c. 131, Section 40, and the town's cognate by-law).

Although the judge appears to have applied the appropriate standard of review, we do not think the record supports a conclusion that the commission acted arbitrarily or capriciously. A decision is not arbitrary and capricious unless there is no ground which "reasonable men might deem proper" to support it. Cotter v. Chelsea, 329 Mass. 314, 318

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(1952). See American Family Life Assurance Co. v. Commissioner of Ins., 388 Mass. 468, 478 (1983) (discussion of standard in context of administrative regulation). The burden of proof lies with the plaintiff to prove that the conditions are not reasonably related to the preservation and protection of the interests protected by the by-law. See Forsyth School for Dental Hygienists v. Board of Registration in Dentistry, supra at 217-218.

Under the by-law, the commission may impose "such conditions . . . as it deems reasonable, necessary or desirable to carry out the purposes of [the] chapter. . . ." North Andover wetlands protection by-law Section 178-4(C). Among the interests protected by the by-law and the act are the public and private water supply, groundwater supply, and wildlife habitat Section 178-1 (note 3, supra), G. L. c. 131, Section 40, and 310 Code Mass. Regs. Section 10.01(2) (1989). In imposing the no-cut and no-construction limitation, the commission asserted that the proposed construction work would have impact upon the adjacent wetland resource areas. In reaching that conclusion, the commission relied on research suggesting the need for buffer strips to protect water quality and wildlife habitat. Imposition of that condition was within the reasonable range of the commission's authority to regulate activity in the buffer zone.

Similarly, the commission's imposition of a double siltation barrier was imposed to prevent erosion, a protected interest under the by-law. While there was no evidence that the fabric fence was needed in addition to the single row of hay bales, it is plausible that a double layer of protection would be more effective than a single barrier. We think the judge was in error in ruling that this condition was arbitrary and capricious.

Finally, we agree with the judge that the requirement of a dumpster for the storage of waste material away from the wetland resource area was a reasonable condition. This condition is reasonably related to the protection of the wetland resource areas insofar as it may prevent the seepage of contaminated liquids into the soil and the blowing of contaminated

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materials onto the wetland areas. Under the by-law, the commission has the authority to impose this condition.

The judgment of the Superior Court is reversed. Upon remand to the Superior Court, judgment should enter declaring the commission's authority to impose conditions 15, 29, and 37 under chapter 178 of the town's by-law.

So ordered.