THOMAS J. DOOLEY, JR. vs. JIM MEADORS, PETER VON MERTENS, JIM HENDERSON, BEN HORNE, DAVID KATSUKI, ARI KURTZ and SARA LEWIS, as they are members of the TOWN OF LINCOLN CONSERVATION COMMISSION

Plaintiff Thomas Dooley (“Dooley”) filed his unverified complaint on December 15, 2006, pursuant to G. L. c. 249, § 4, seeking relief from Defendant Town of Lincoln Conservation Commission’s (the “Commission”) denial of an Order of Conditions under the Lincoln Wetlands Protection Bylaw (the “Bylaw”) and Conservation Commission Regulations (the “Bylaw Regulations”) which was sought in connection with permission to construct a single-family dwelling on property located at 31 Old Concord Road, Lincoln, MA (“Locus”). The case management conference was held on March 23, 2007. Dooley filed his motion for judgment on the pleadings on June 25, 2007, together with a supporting memorandum. On August 10, 2007, the Commission filed a cross-motion for judgment on the pleadings, together with a supporting memorandum. Dooley filed a reply memorandum on September 28, 2007, and the Commission filed a reply on October 5, 2007. A hearing was held on both motions on October 10, 2007, and the matter was taken under advisement.

The purpose of a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c) is “to challenge the legal sufficiency of the complaint.” Board of Selectmen of Hanson v. Lindsay, 444 Mass. 502 (2005) (citations omitted). It is appropriate “only when the text of the pleadings produces no dispute over material facts.” Tanner v. Board of Appeals of Belmont, 27 Mass. App. Ct. 1181 , 1182 (1989) (citing Clarke v. Metropolitan Dist. Comm’n., 11 Mass. App. Ct. 955 (1981)). When a defendant’s pleading places the material allegations in question, a motion for judgment on the pleadings cannot lie. Id. Since the parties in the case at bar agree upon the record, judgment on the pleadings is permissible.

The following facts are not in dispute:

1. Dooley owns Locus, a 3.3 acre lot of land.

2. In December 1996, Dooley submitted a subdivision plan to divide a plat of approximately 16 acres on Old Concord Road in Lincoln into seven lots. The subdivision was approved by the Land Court on December 20, 1996. Locus is lot 19 on this subdivision plan and has remained undeveloped. Adjacent to Locus is lot 18, another undeveloped lot. Dooley has developed and sold the other five lots within the subdivision.

3. Locus and the other lots within the subdivision are located within a single-family residential zoning district that requires a minimum setback of 50 feet from front and side property lines (the “Zoning Setback”).

4. The approximately 1.3 acres on the west end of Locus that fronts Old Concord Road is upland. The remaining two acres consist of land that is considered “bordering vegetated wetland” (“BVW”) under the Massachusetts Wetlands Protection Act and its Regulations (“MWPA”). [Note 1] BVW is considered a “resource area” under the Bylaw and the Bylaw Regulations. [Note 2] Under state and local regulatory schemes, any activity, other than minor activity, proposed to be undertaken within 100 feet of BVW is subject to regulation and cannot be carried out without an order of conditions issued by the Commission.

5. Sometime prior to November 16, 2004, Dooley mowed the area within 100 feet of BVW on Locus and lot 18 without an order of conditions.

6. On November 16, 2004, Dooley filed a Notice of Intent (“NOI 1”) with the Commission seeking permission to carry out field maintenance activities on Locus and lot 18 to restore the portion of the land that had been mowed without a permit to its natural vegetative state. Dooley also intended to clarify the location of BVW and associated buffer zones. On May 4, 2005, the Commission issued an order of conditions (the “Order”) authorizing the maintenance work under both the MWPA and the Bylaw. Pursuant to these regulatory schemes, the Order delineated a 50-foot buffer zone of natural vegetation adjacent to BVW (“Inner Buffer Zone”). Furthermore, it established an area between 50 and 100 feet outside BVW in which no work was to take place other than the restorative maintenance work (“Outer Buffer Zone”). [Note 3]

The Order included condition #30: “No materials, including grass clippings and brush, may be dumped within the wetlands or the upland resource areas on site. This condition shall remain in perpetuity,” (emphasis in original). The Order also contained condition #34: “Any future work, including landscape and tree alteration, on this property will need Conservation Commission review if it is within 100' of wetland resource areas.”

7. On June 26, 2006, Dooley filed a second Notice of Intent (“NOI 2”) seeking permission to develop Locus within the buffer zones (the “Project”). NOI 2 described the intended work for the Project: “site preparation including emplacement of siltation controls, clearing, grubbing, excavation and rough grading;” “construction of a single-family dwelling with attached, lower level garage and rear post-supported deck;” “construction of portions of the driveway, associated drainage and retainage;” “construction of landscape amenities including masonry walks and patios set in sand rather than grout, associated terraced planting areas and in-ground stairs, and a gazebo;” and “utility connections finished grading and revegetation of work areas between 50' and 100' from the BVW.”

NOI 2 also detailed how gutters connected to leaching catch basins, stone leaching beds, and the use of sand rather than grout under the patio and walkway would control runoff. Further, it described how the positioning of “filter fabric backed, staked haybales placed . . . and maintained in accordance with Best Management Practices of the USDA/NRCS” would reduce short-term erosion and sedimentation damage during construction. Furthermore, it stated that “[l]ong term erosion and sedimentation controls are provided by: maintenance of the 50+' vegetated buffer . . . ; providing vegetated terraces to act as surface runoff traps . . . ; providing stone drains at the end of the driveway . . . ; and maintenance of vegetative cover over the remainder of the site.”

8. Between July 17 and September 19, 2006, a number of abutters submitted letters in response to NOI 2, opposing approval of the Project.

9. At a July 19, 2006, public hearing, Arlene Wilson (“Wilson”), an environmental planner representing Dooley, presented a plan of the Project. The plan proposed a 3,344 square-foot dwelling, entirely within the Outer Buffer Zone, with the east perimeter ranging between six and fifteen feet from the edge of the Inner Buffer Zone. Furthermore, the Project would have a total disturbance area of 8,500 square feet within the Outer Buffer Zone.

Wilson argued that the Project would not have a negative impact upon BVW. Moreover, she stated that Dooley would ensure that future homeowners would agree to limit the use of herbicides, pesticides, and fertilizers in order to protect BVW from these pollutants. Following Wilson’s presentation, the Commission requested information concerning the proposed house elevations, slopes and grading, a watershed map, and a drainage analysis.

10. On August 15, 2006, Wilson sent the Commission the requested information along with a revised plan of the Project. This revision moved parts of the dwelling further west, to the edge of the Zoning Setback line, thereby increasing the distance from the east perimeter of the dwelling to the Inner Buffer Zone to between eight and fourteen feet. Further, the revised plan reduced the total disturbance area of the Project within the Outer Buffer Zone to 6,926 square feet and the total impervious area, which excludes patio and walk areas, to 5,199 square feet.

11. Wilson presented the revised plan to the Commission at a public hearing on August 23, 2006. At this meeting, the Commission was skeptical that the increased clearance along the edge of the Inner Buffer Zone would provide adequate protection from construction work and long-term maintenance activities. Furthermore, Wilson proposed that Dooley could place a deed restriction on Locus in order to ensure that future owners would not use the buffer zone impermissibly. However, the Commission expressed doubts concerning the effectiveness of such a restriction.

12. On September 15, 2006, Wilson submitted a second revised plan of the Project. This revision reduced the foundation footprint, decreased the total paved area by flipping the garage from the south to north end of the dwelling, removed the gazebo, increased the distance between the Inner Buffer Zone and the house perimeter, and replaced a large part of the patio with a raised deck. As a result, the total disturbance area within the Outer Buffer Zone was reduced to 6,748 square feet and the total impervious area to 3,617 square feet. The second revised plan also pushed the dwelling twenty-seven feet north onto a naturally higher area in order to retain more of the existing surface drainage across Locus from Old Concord Road. Furthermore, it revised the site grading and drainage to reduce the volume of pollutants from the road passing into BVW.

13. On September 20, 2006, Robert A. Drake, a registered professional engineer hired by Dooley, submitted drainage calculations for the front yard retainage on the second revised plan. The calculations showed that Locus required “approximately 2.5 VF of drainage wall” and that the “design of Dooley’s property has 3.0 VF . . . system is O.K.”

14. Wilson presented the second revised plan at a public hearing on September 20, 2006. At this meeting Jim Meadors, a co-chair of the Commission (“Meadors”), inquired into whether Dooley had considered developing Locus and lot 18 together as one lot.

15. On October 4, 2006, a final hearing was held and the Commission voted 7-0 to approve the Project pursuant to the MWPA, but to disapprove the Project under the Bylaw and the Bylaw Regulations. In the deliberations concerning the MWPA, the Commission determined that the MWPA requirements were less strict than those set forth in the Bylaw.

16. On October 18, 2006, the Commission issued its final decision (the “Decision”) with regards to the Bylaw. In its findings, the Commission stated that Dooley failed to prove by a preponderance of credible evidence that the Project would not have adverse effects, immediate or cumulative, upon the protection of groundwater, flood control, erosion and sedimentation control, water quality and avoidance of water pollution, and protection of wildlife habitat.

In the Decision, the Commission stated that the Project’s “proximity to the inner 50-foot buffer zone resource area makes it likely that there will be short-term adverse impacts from erosion and sedimentation.” It further determined that the second revised plan did not do enough to control runoff and there would be long term erosion and sedimentation damages since “a substantial amount of surface water containing sediment loads would likely still flow from the impervious surfaces into the vegetative cover on the site . . . .” Moreover, the Commission found that future landowners would likely landscape Locus and thus “the vegetative cover on the site would become greatly diminished . . . .” The Decision concluded its analysis of erosion and sedimentation control by stating that Dooley failed to prove there would be no adverse affects since he “presented no evidence that the buffer zone, by itself, would provide adequate erosion and sedimentation control.”

Furthermore, with regards to the protection of water quality and avoidance of water pollution, the Commission found that “groundwater recharge would be more concentrated and would occur more rapidly as a result of the increased impervious surface area and proposed leaching system.” Additionally, it noted that the presence of a dwelling on Locus and its use for residential purposes would lead to an increase in pollutants, such as household chemicals, fertilizers, pesticides, and de-icing salts, that would flow into the wetland resource area.

The Commission also determined that Dooley had failed to show no feasible alternatives to the Project existed. The Decision stated that “‘[n]o build’ areas constitute practicable alternatives to development activities” and Dooley “did not demonstrate that a ‘no-build’ alternative is not viable . . .” It explained that a no build alternative appeared particularly practicable to Dooley since he had already profited from selling other lots within the same subdivision. With regards to the alternatives analysis, the Commission also decided that although it had proposed combining lots 18 and Locus into a larger lot, Dooley “did not offer this as one of the potential alternatives or provide any evidence as to why this alternative would not be practicable.”

The Decision also noted that the Bylaw substantially restricted work within 100 feet of wetland resource areas since “activities undertaken in these upland buffer zone resource areas have a high likelihood of adverse impact upon the wetland.” Additionally, it gave attention to the Bylaw Regulation’s statement that a 100 foot buffer zone may be insufficient protection and therefore “the Conservation Commission generally discourages any work or activities within 100 feet of wetland resource areas.”

Finally, the findings noted the continued validity of the Order and that the Project directly conflicted with the Order.

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The first issue before this court is whether the Order prevented approval of the Project. The Commission contends that NOI 2 is inconsistent with the Order’s condition #30, which prohibits dumping any material within the upland resource area. The Commission also argues that condition #34, requiring Commission approval of any future work, precludes construction within the buffer zone.

Although the Order did not contemplate a dwelling upon the site, neither condition #30 nor #34 prevented the amendment of conditions imposed by the Order. A proposed construction project is not excluded from the plain meaning of “any future work.” Therefore, the Commission could amend the Order if it deemed that the proposal could comply with the Bylaw and MWPA. Accordingly, I find that the Order did not prevent approval of the Project.

Since the Order did not preclude the Commission from approving the Project, it is necessary to consider whether the Commission abused its discretion in denying approval of NOI 2. Dooley asks for review of the Decision in accordance with G. L. c. 249, § 4, which states,

“A civil action in the nature of certiorari to correct errors in proceedings which are not according to the course of common law, which proceedings are not otherwise reviewable by motion or by appeal, may be brought in the supreme judicial or superior court or, if the matter involves any right, title or interest in land, or arises under or involves the subdivision control law, the zoning act or municipal zoning, or subdivision ordinances, by-law or regulations, in the land court . . .” [Note 4]

At the threshold, it is necessary to determine the appropriate standard of review in this case. In an action pursuant to G. L. c. 249, § 4, review “is limited to correcting ‘substantial errors of law that affect material rights and are apparent on the record.’” Northboro Inn, LLC v. Treatment Plant Bd. of Westborough, 58 Mass. App. Ct. 670 , 673 (2003) (citations omitted). Furthermore, the review is not de novo and “[t]he reviewing judge is limited to what is contained in the record of proceedings below . . . .” Police Comm’r of Boston v. Robinson, 47 Mass. App. Ct. 767 , 770 (1999) (citations omitted).

The nature of the action for which review is sought is determinative of the proper standard of review. Forsyth Sch. for Dental Hygienists v. Board of Registration in Dentistry, 404 Mass. 211 , 217 (1989). Courts have applied both the “arbitrary and capricious” standard and “substantial evidence” standard to cases in which a local commission’s decision under MWPA and local bylaw are appealed. The appropriate standard of review is tailored to the specific allegations brought for review.

The “arbitrary and capricious” test is appropriate when the decision is analyzed “to determine whether it was authorized by the governing statute . . . in light of the facts.” Fafard v. Conservation Comm’n of Reading, 41 Mass. App. Ct. 565 , 568 (1996); see also T.D.J. Dev. Corp. v Conservation Comm’n of N. Andover, 36 Mass. App. Ct. 124 , 128 (1994). Furthermore, this standard is used when the action alleges that the commission applied “improper criteria” in reaching its decision. FIC Homes of Blackstone, Inc., v. Conservation Comm’n of Blackstone, 41 Mass. App. Ct. 681 , 684 (1996); cf Beale v. Planning Bd. of Rockland, 423 Mass. 690 , 696 (1996) (“A planning board exceeds its authority if requirements are imposed beyond those established by the rules and regulations.”).

On the other hand, the “substantial evidence” test is applicable “where the question [is] not the criteria to be applied but whether, within announced criteria, the determination that there would be injury to the land in question [is] supported by substantial evidence.” Fafard, 41 Mass. App. Ct. at 568. This standard is appropriate when the action alleges that the evidence presented cannot support the commission’s decision. Id.; see also Lovequist v. Conservation Comm’n of Dennis, 379 Mass. 7 , 17 (1979).

Since Dooley alleges that the Commission used improper criteria in reaching its conclusion and also that its findings are unsupported by the evidence in the record, the Decision must be reviewed under both the arbitrary and capricious standard and the substantial evidence standard. Dooley contends that the Commission abused its discretion when it approved NOI 2 under the MWPA but denied it under the Bylaw. He claims that the criteria in both regulatory schemes is identical and therefore the decision was arbitrary. He further argues that the Decision was based on extraneous factors. Additionally, Dooley alleges that the evidence in the record did not support the Decision. On the other hand, the Commission argues that the Decision is based solely on the provisions of the Bylaw, which it contends are more stringent than the MWPA, and is supported by substantial evidence.

Arbitrary and Capricious Rule

The first issue with regards to the application of the arbitrary and capricious standard is whether the Bylaw provides more stringent wetland controls than the MWPA for assessing the environmental impact of proposed construction projects within the Outer Buffer Zone. If the criteria is identical, it may indicate that the Commission acted arbitrarily when it reached conflicting conclusions under the two regulatory schemes. A decision may “be disturbed only if it is based on ‘a legally untenable ground’ . . . or is ‘unreasonable, whimsical, capricious, or arbitrary’ . . . .” Forsyth, 404 Mass. at 218 (citing Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277 (1969)). Moreover, a court may not set aside a decision under the arbitrary and capricious standard “unless there is no ground which ‘reasonable [persons] might deem proper’ to support it.” FIC Homes, 41 Mass. App. Ct. at 684-85 (quoting T.D.J. Development, 36 Mass. App. Ct. at 128.).

A municipality may choose to enact more stringent wetland controls than the minimum regulations set forth by the MWPA. Golden v. Board of Selectmen of Falmouth, 358 Mass. 519 , 526 (1970). Furthermore, a town bylaw is more stringent that the MWPA when its “scope of control is more expansive.” T.D.J. Development Corp., 36 Mass. App. Ct. at 127.

The MWPA states that “[n]o person shall remove, fill, dredge, or alter any . . . fresh water wetland . . . without receiving and complying with an order of conditions . . .” G. L. c. 131, § 40. Its purpose is the protection of public and private water supply, ground water supply, land containing shellfish, fisheries, and wildlife habitats as well as flood control, prevention of storm damage and pollution prevention. 310 CMR 10.01(2). Additionally the MWPA states that BVW is “significant to public or private water supply, to ground water supply, to flood control, to storm damage prevention, to prevention of pollution, to the protection of fisheries and to wildlife habitat.” 310 CMR 10.55(1) An applicant for proposed work within the buffer zones must show that the project “will contribute to the protection of the interests identified in M. G. L. c. 131, § 40 . . . .” 310 CMR 10.01(a)(3). Furthermore, once an applicant fulfills this burden, the Commission “shall impose conditions to protect the interests of the [MWPA] identified for [BVW].” 310 CMR 10.53(1).

Meanwhile, the Bylaw acts as a local supplement to the MWPA and specifically states that its purpose is to protect “wetlands, related water resources, the adjoining land areas, and important wildlife habitat areas . . . by controlling activities deemed by the Conservation Commission likely to have a significant effect, immediate or cumulative, upon resource area values . . .” Bylaw § 1. The Bylaw cites as the resource area values it protects as all the specific interests enumerated in the MWPA as well as the protection of erosion and sedimentation control and water quality. [Note 5] Section 7 of the Bylaw states that

“[t]he Commission is empowered to deny or revoke a permit for failure to meet the requirements of this bylaw . . . if the project as proposed might cause significant adverse effects, immediate or cumulative, upon the resource area values protected by this bylaw; or where no conditions are adequate to protect those values.”

Furthermore, the Commission may permit construction of structures within 100 feet of a wetland resource areas on lots created prior to 2003 only when it is necessary to avoid hardship on the property owner. Bylaw Regulations §§ 7.1, 7.8.

The addition of a direct review of erosion and sedimentation control gave the Commission more expansive criteria for examining the Project than it used in the MWPA analysis. [Note 6] Similarly, the inclusion of water quality as a protected interest also provided the Commission with a greater scope of control in its analysis under the Bylaw than under the MWPA.

Furthermore, the Bylaw provides the Commission with more discretion than the MWPA in the approval process and also requires a greater level of environmental protection for an order of conditions to be issued. On the one hand, the Bylaw allows the Commission to deny a proposal if the proposed project may conceivably have an immediate or cumulative impact upon the protected resource values. In contrast, the MWPA requires the Commission to issue an order of conditions once an applicant shows that the work will contribute to the MWPA’s identified interests.

The Bylaw also creates a more extensive performance standard for the Outer Buffer Zone than the MWPA by requiring that, in general, all permanent structures proposed to be built in the Outer Buffer Zone should be disapproved unless approval is necessary to avoid hardship. [Note 7] The MWPA does not impose such constraints on the Commission, with approval of a project in the Outer Buffer Zone only contingent upon showing that the construction will contribute to the protection of the interests set forth in the MWPA. [Note 8]

The combination of higher performance standards, greater discretionary authority, and the addition of erosion and sedimentation and water quality review makes the Bylaw more stringent than the MWPA with regards to proposals for work in the Outer Buffer Zone. [Note 9] Therefore, I find that the Bylaw provides more stringent controls than the MWPA for assessing the environmental impact of proposed construction projects within the Outer Buffer Zone.

The next issue is whether the Commission acted arbitrarily and capriciously by following an improper agenda or considering extraneous factors. Dooley argues that the Commission submitted to the will of abutting neighbors who opposed the Project and also acted impermissibly by considering hypothetical future violations of the Bylaw. “Although [a] 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 . . .” Fafard, 41 Mass. App. Ct. at 572. A decision is arbitrary when it is not based on stated guidelines, but is instead motivated by the desire to appease unhappy neighbors who oppose the proposed construction. Id. When the factors supporting a commission’s decision are “extraneous to the prescriptions of the regulatory scheme, but are related, rather, to an ad hoc agenda, then that agency has acted arbitrarily . . . .” Id. at 568. Therefore, the Commission acted arbitrarily and capriciously if it based its conclusion upon impermissible factors that are not identified as salient in the Bylaw.

Dooley first argues that the Commission based its findings upon satisfying the abutters of Locus. The abutters’ letters addressed two major concerns: (1) that the Project would adversely impact the wetlands; and (2) that Dooley would not suffer hardship since he had already profited from selling other lots within the subdivision. The Bylaw does not permit the Commission to base its findings upon satisfying neighbors or the past development and sale of other lots in the same subdivision. However, although the Decision stated that development of Locus “is not essential for the owner to have realized a reasonable return on his original investment,” the Commission supported its conclusion with many legitimate concerns about the Project’s impact upon the wetlands. These concerns were based on environmental protection criteria set forth within the Bylaw. Therefore, the record does not show the Commission acted arbitrarily and capriciously by basing the Decision upon the improper agenda of placating abutters.

Dooley next contends that the Commission’s consideration of potential future violations represented the use of extraneous factors. He argues that “prospective violations of a town by-law are not a legally tenable ground for denial of a submission.” Fafard, 41 Mass. App. Ct. at 571. However, Section 7 of the Bylaw specifically states that “[w]hen making its decision the commission shall take into account the cumulative adverse effects . . . resulting from past activities, permitted and exempt, and foreseeable future activities.” (emphasis added). The Bylaw’s specific reference to the permissibility of analyzing future effects militates towards finding its conduct legitimate in this regard. Furthermore, in the Decision, the Commission described potential future adverse effects upon erosion and sedimentation control that could result from landscaping Locus. Additionally, the record shows that the Commission believed the insertion of a deed restriction would be inadequate to protect against future violations of the Bylaw and any order of conditions. [Note 10] And you know, I’m not even sure that that deed restriction is going to prevent that from happening, actually.” Therefore, the Commission permissibly considered the potential for future activities to have adverse effects upon the wetland resource area.

For the foregoing reasons, I find that the Commission did not act arbitrarily and capriciously by following an improper agenda or considering extraneous factors in the Decision.

The next issue is whether the Decision’s conclusion that Dooley did not fulfill his burden under the alternatives analysis was arbitrary and capricious. Dooley argues that the Commission applied improper criteria in determining that he had not shown that any practicable alternative existed. [Note 11] The alternatives analysis is set forth in Section 7 of the Bylaw: “[w]here the Commission determines that the proposed activity would have adverse effects on the wetland values protected by this bylaw the applicant shall prove by a preponderance of the credible evidence that there is no practicable alternative to the proposed activity which would have materially less adverse effect . . . ” (emphasis supplied).

Dooley argues that joining Locus with the adjacent lot 18 is not a practicable alternative recognized by the Bylaw. Dooley, relying on the fact that his subdivision was created in 1996, bases his argument upon Section 7.1 of the Bylaw Regulations, which states, in part, that “reasonable alternatives can include reconfiguring or reducing the number of lots so that no permanent structure will be built in any upland buffer zone . . . in other words, the commission will not permit permanent structures within 100 feet of a wetland resource area . . . in the case of new subdivisions created after March 29, 2003.” Section 7 of the Bylaw, however, provides that “[t]he Commission shall regard as practicable an alternative which is reasonably available and capable of being done after taking into consideration the proposed property use, overall project purpose, logistics, existing technology, cost of alternatives, and overall project costs.” Furthermore, Section 7.5 of the Bylaw Regulations state that “[o]ptions that appear to be precluded by self-imposed constraints shall be considered as reasonably practicable alternatives.” Moreover, Section 7.1 mentions reasonable alternatives only with regards to the provision that “in general, the Commission discourages any work and activity within 100 feet of wetland resource areas . . . and encourages applicants to pursue reasonable alternatives outside of the Buffer zone Resource Area whenever possible.” (emphasis added).

Thus, the Bylaw Regulations do not preclude the Commission from determining that joining adjacent lots in order to avoid construction within the buffer zones is not a practicable alternative. Although the mandatory prohibition against construction within the Outer Buffer Zone only applies to subdivisions created after 2003, the Commission is not prevented from finding that reducing the number of lots is a practicable alternative for subdivisions created prior to this cut-off date. Therefore, the Commission properly considered the joining of Locus with lot 18 as an alternative to the Project. Furthermore, Dooley failed to provide information to the Commission that showed such an alternative was not practicable. The Decision also noted that Dooley failed to demonstrate that a “no-build” alternative was not a practicable alternative. The Commission partially based its determination that a no-build alternative was viable on the fact that Dooley had sold other lots within the subdivision, but it also stated generally that “[n]o build areas constitute practicable alternatives to development activities.” Although it is unclear whether a no-build alternative represents a legitimate “practicable alternative,” it is unnecessary to reach this question since Dooley, who had the burden of proof, failed to prove that reducing the number of lots was not a practicable alternative. Thus, I find that the Decision’s conclusion that Dooley did not fulfill his burden under the alternatives analysis was not arbitrary and capricious.

The Decision is legally tenable and connected to the Bylaw’s goal of protecting the wetlands and the surrounding areas. Furthermore, it is reasonably supported by the application of the proper criteria to the evidence presented in the record. Therefore, I find that the Decision was not arbitrary and capricious.

Substantial Evidence Rule

It is next necessary to determine whether the Decision is supported by substantial evidence. Section 7 of the Bylaw requires that an applicant fulfill “the burden of proving by a preponderance of the credible evidence that the work proposed in the permit application will not have adverse effects, immediate or cumulative, upon the resource area values protected by this bylaw.”

The Commission may deny a permit “if the project as proposed might cause significant adverse effects, immediate or cumulative, upon the resource area values protected by this bylaw.” Bylaw § 7. Furthermore, a commission’s decision is deemed unsupported by substantial evidence only when “the evidence points to no felt or appreciable probability of the conclusion or points to an overwhelming probability of the contrary.” Boston Garden Corp. v. Board of Assessors of Boston, 383 Mass. 456 , 466 (1981) (citing Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79 , 92 (1968) (quoting Jaffe, Judicial Control of Administrative Action, 598)). Furthermore, the substantial evidence test is satisfied when the record contains “such evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citing Boston Edison Co., 355 Mass. at 92 (quoting G. L. c. 30A, § 1)).

Dooley contends that substantial evidence does not support the Decision concerning erosion and sedimentation control. In order to uphold the Decision under the substantial evidence test, the record must reasonably support the finding that the Project “will not have significant adverse effects, immediate or cumulative, upon erosion and sedimentation control.” The Commission, in the Decision, stated that the Project would likely expose Locus to sediment loads and that the Inner Buffer Zone was insufficient to protect the wetlands from sedimentation. Furthermore, the Decision expressed a concern that future landowners could foreseeably reduce the vegetative cover, thereby further exposing the wetlands.

Although Dooley presented a great deal of evidence in opposition to these concerns and redesigned the Project’s plan on multiple occasions in order to facilitate drainage, the Commission still had before it sufficient evidence to deduce that the Project could foreseeably be significantly detrimental to erosion and sedimentation control. The plan called for construction entirely within the Outer Buffer Zone and work was to take place very close to the Inner Buffer Zone. It is salient that Section 7.1 of the Bylaw Regulations state that

“[a] growing body of evidence suggests that even ‘no disturbance’ areas reaching 100 feet from wetland resource areas are insufficient to protect many important wetland resource characteristics and values. Thus, in general, the Commission discourages any work and activity within 100 feet of wetland resources . . . .”

This statement, as well as the proximity of the Project to the wetland resource area, can be seen as adequate evidence by a reasonable mind to support the Commission’s conclusion. Furthermore, although Dooley presented evidence that the Project would meet drainage and retainage requirements and minimize runoff, the evidence in the record did not overwhelmingly point towards a finding that there would be no significant adverse effects upon erosion and sedimentation control.

Similarly, a reasonable mind can also find the record adequate to support the Commission’s determination that Dooley failed to prove the proposal would not significantly adversely affect water quality. Dooley presented evidence as to how to protect against an increase in runoff and an amplification of the herbicides, pesticides, and fertilizers passing into BVW. However, even with the changes that Dooley made to the plan to control water quality, the dwelling’s proximity to BVW still posed a potentially significant risk. The Bylaw Regulation’s statement that activity within the buffer zone may inevitably have a negative impact is sufficient evidence to support the finding that the work “might cause significant adverse effects, immediate or cumulative” upon water quality. Therefore, the Commission reasonably concluded that the Project would not provide adequate protection for water quality.

The evidence in the record does not overwhelmingly weigh against, and reasonably supports, the Commission’s conclusion. Therefore, I find that the Decision is supported by substantial evidence.

Conclusion

The Commission’s decision to not approve Dooley’s request for an Order of Conditions in connection with the proposed construction within the Outer Buffer Zone of Locus cannot be set aside under arbitrary and capricious or substantial evidence review.

As a result of the foregoing, I ALLOW the Commission’s Cross-Motion For Judgment on the Pleadings and DENY Dooley’s Motion for Judgment on the Pleadings.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: July 15, 2008