By virtue of the present action in the nature of certiorari under G. L. c. 249, § 4, Peter DeCarolis (plaintiff/DeCarolis) seeks judicial review of the Townsend Conservation Commissions (Commission) denial of his Notice of Intent (NOI). That decision effectively prohibits DeCarolis from building a roadway, which would twice cross a protected wetlands area in order to service a subdivision. The plaintiffs Motion for Judgment on the Pleadings and defendants Cross Motion for Judgment on the Pleadings invite this court to determine whether the decision below may stand.
The Commission premised its denial primarily upon twenty-four separate grounds or bases. Twenty-three of those related to the plaintiffs failure to provide evidence deemed necessary by the Commission for the grant of a permit under the local Wetlands Bylaw (bylaw). Twenty-one were identical to those enumerated within the Commissions corresponding denial of an Order of Conditions (OOC), promulgated under the so-called Wetlands Protection Act (WPA). [Note 1]
The information requested by the Commission concerned 1) the manner in which the construction of an intersection with an existing public way might adversely impact area wetlands and buffer zones; 2) the manner in which a retaining wall erected in a stream or stream bank at that intersection might adversely impact area wetlands and buffer zones; 3) storm water management; 4) the two wetlands crossings; and 5) miscellaneous concerns. Categories three through five reflect the concerns upon which the Commission relied in denying an Order of Conditions under the WPA.
Another basis for denial concerned the plaintiffs proposed development within a 35-foot No Disturb Zone, i.e. a buffer around the stream running through the subdivision.
In his Motion, plaintiff argues that he has supplied the information that the Commission contends is lacking. In other words, DeCarolis argues that there is no substantial evidence to support the notion that certain information required by the Commission is lacking. Alternatively, as to those bases that are identical to the ones cited by the Commission in denying the Order of Conditions under the WPA, he argues that they do not arise from within the autonomous regulatory framework of the bylaw. That is to say, they do not rely upon provisions of the bylaw that are more stringent than the WPA. As a consequence, he asserts that this court lacks jurisdiction under the doctrine of primary jurisdiction to consider them as grounds for denial under the bylaw, because the Massachusetts Department of Environmental Protection (DEP) retains jurisdiction over those bases in the plaintiffs pending appeal to it. The plaintiff also contends that, by virtue of some of the bases having been taken from other, independent regulatory schemes, the Commission exceeded its legal authority. Plaintiff further asserts the Commissions decision is fatally deficient because the Commission did not specify the bylaw provisions or regulations upon which it rested its decision.
As to the 35-foot No Disturb Zone, the plaintiff posits that it derives from a policy based upon an ad hoc agenda, rather than a requirement set forth in, or rationally related to, the Townsend Wetland Regulations (Regulations). Accordingly, plaintiff claims that the decision is based on legally untenable grounds.
This court disagrees with the bulk of plaintiffs arguments, and will uphold the Commissions decision for the reasons specified below.
Background and Procedural History
Plaintiff serves as a Trustee of the James V. DeCarolis 1997 Realty Trust, [Note 2] which owns the property that is the subject of this appeal (property/locus). [Note 3] The property is bounded by Proctor and Haynes Roads in Townsend. [Note 4] It is the plaintiffs intent to develop the property into a cluster subdivision between Haynes and Proctor Roads, consisting initially of twenty-seven buildable lots on one hundred and eleven acres, eighty-eight of which plaintiff proposes to retain as open space. [Note 5]
In order to service this subdivision, plaintiff seeks to construct roadways connecting the residential development to Proctor and Haynes Roads. [Note 6] Three roads are proposed, extending 3,600 linear feet, with each ending in a cul-de-sac. [Note 7] One of these Seymour Way (Way), would of necessity extend over wetlands resource areas, thereby requiring both state and local wetlands protection approval from the Townsend Conservation Commission (Commission) prior to construction. [Note 8]
In accordance with the WPA, [Note 9] the Townsend Wetlands Bylaw (bylaw) and the Regulations [Note 10] promulgated thereunder, plaintiff filed a notice of intent (NOI) with the Commission on June 12, 2006 [Note 11] concerning the proposed Way. By means of the NOI, plaintiff sought authorization from the Commission for the aforementioned Way, which entails two wetland crossings and associated drainage work. [Note 12] Attached to the NOI were six sets of plans. [Note 13] The plans show two wetlands crossings [Note 14] and a retention wall at the intersection of Proctor Road and Seymour Way. The retention wall appears to intrude into a wetlands area. [Note 15] The first detail sheet also depicts an elevation drawing of the proposed span of a typical wetlands crossing, including its slab footings, and birds-eye views of each crossing, which indicate that there will be temporary wetland disturbance, filled wetlands, and wing walls within the vegetated buffer of the wetlands areas. [Note 16]
The Commission hearing on plaintiffs NOI commenced on July 12, 2006 and was continued nine times thereafter. [Note 17] At the first hearing, DeCarolis was represented by Todd Lobo (Lobo), an employee of Meisner Brem Corp. (Meisner), an engineering firm. [Note 18] In addition to describing the project generally, Lobo indicated that his firm had based the wetlands delineation in plaintiffs plans on a Superseding Order of Resource Delineation (SORAD) issued for the property by DEP on December 1, 2003. [Note 19] He indicated an intention to file an Environmental Notification Form (ENF) with the Massachusetts Environmental Policy Act (MEPA) Office in light of the proposed projects location within the Squannassit River Area of Critical Environmental Concern (ACEC). So too, he intended to file an application for a National Pollutant Discharge Elimination System (NPDES) Permit, and a 401 Water Quality Certificate. [Note 20] He went on to recount ways in which the plaintiffs proposed development sought to avoid or mitigate any harmful effects to the wetlands areas. [Note 21]
In the course of that hearing, several abutters voiced concerns about the project, [Note 22] while one Commission member expressed reservations as to the following:
a) plaintiffs reliance on the SORAD and his failure to appeal the Commissions independent decision concerning the area wetlands delineation under the bylaw;
b) the omission of a Wildlife Habitat Assessment from plaintiffs filings;
c) plaintiffs failure to propose any wetlands replication areas in his filings; and
d) the two proposed wetlands crossings. [Note 23]
To the issue of wetlands replication, Lobo responded that plaintiff intended to include such areas in the project, and that their absence from plaintiffs submissions merely indicated his desire to work closely with the Commission in placing them. [Note 24]
A site walk was scheduled for July 18, 2006 with the hearing continued to August 23, 2006. [Note 25] The reconvened hearing [Note 26] began with a review of the recent site walk, lead by the plaintiffs agent Charles Strickland (Strickland) of Meisner. [Note 27]
The Commission expressed concern as to the following:
a) the need for plaintiff to construct the crossing so as to avoid temporary and long term disturbance of the stream bank, because the area appears unsusceptible to bank replication which is required under the regulations;
b) the distance from the actual crossing to the stream;
c) as the first proposed crossing has a higher elevation than the approaching road, [Note 28] plaintiff must provide a narrative description of the manner in which he intended to construct the crossing;
d) the absence of a legend on the plans, making it difficult to relate them to the area on the ground;
e) the extension of the Proctor Road entrance (entrance) well within the 100 foot buffer zone designated in the bylaw;
f) the 518 square feet of disturbance within the buffer zone, as contemplated by the plans; and
g) the project, as proposed, entailed forty linear feet of bank disturbance without any proposed replacement. [Note 29]
In light of these concerns and those raised at the prior hearing, the Commission supplied plaintiff with a fourteen point checklist requiring that DeCarolis implement the following:
1) designate the Squannassit River ACEC boundaries on his plans;
2) file an Environmental Notification Form, because of the ACECs presence within the area of the project;
3) submit computations to comply with stream crossing standards;
4) supply a Simplified Wildlife Habitat Evaluation;
5) determine how utilities will be installed;
6) revise the plans to delineate a possible isolated land subject to flooding (ILSF) to the northeast of the plaintiffs property;
7) file an application for a 401 Water Quality Permit;
8) submit storm water management information and drainage calculations, which were not included with the NOI;
9) correct a typographical error on page two of his plans, which erroneously designated Proctor Road as Westford Road;
10) supply information concerning temporary bank disturbance at the wetland crossings;
11) provide details relative to the size, by square foot, of disturbance to the 35 and 50 foot buffer zones;
12) provide more specific detail on the elevation drawings of the wetlands crossings;
13) designate the wetland replication areas on revised plans; and
14) properly flag the area so as to permit the Commission to evaluate the site work in relation to the wetlands, upon subsequent site visits. [Note 30]
Further, Commission Clerk Eric Johnson spoke of the retention wall at the intersection of Seymour Way and Proctor Road, where the latter crosses wetlands, and inquired whether it would result in bank disturbance. [Note 31] Also, as to the same location, Chairperson Chapman requested a narrative of the construction sequence, to include measures being proposed to address the steep slope of the localized topography, and a plan that would provide an enlarged view of this segment of the project. [Note 32] Once again, abutters in attendance voiced their concerns. [Note 33] Thereafter, the hearing was continued to September 27, 2006.
At the third hearing, [Note 34] a date was established for a second site visit. [Note 35] At plaintiffs request, the hearing itself was continued to October 11, 2006. [Note 36]
At the fourth hearing, the Commission observed [Note 37] that forty-eight of the projects one hundred and eleven acres sit within the bylaws one hundred foot buffer zone, with a half acre of disturbance occurring within the thirty-five foot vegetated buffer thereby accounting for three percent of the total area of the development. [Note 38] Moreover, of the 18.6 acres that plaintiff proposed to develop directly, 3.3 acres would be within the 100 foot buffer. [Note 39] Further, one of the two proposed wetlands crossings lies within the Squannassit River ACEC, as well as the intersection of the proposed Seymour Way and Proctor Road. [Note 40]
Again, Strickland represented the plaintiff as this hearing. [Note 41] He advised the Commission that the plaintiff decided that the utilities would pass above the crossing. [Note 42] He represented that the span of the second crossing was sixteen feet, and suggested that only 100 square feet of wetlands would be filled there. [Note 43] As to the first crossing, the Commission inquired whether the plaintiff intended to fill any portion of the vegetated buffer; whether the plaintiff would have to replicate thirty linear feet of bank; whether any filling is permitted within an ACEC inasmuch as this crossing lies within such area; and whether it was compliant with wetlands crossing standards. [Note 44] The Commission and Strickland also reported that they had explored alternative locations for wetlands replication areas during the recent second site visit. [Note 45]
Responding to an abutters inquiry, Strickland provided information concerning the proposed retaining wall at the intersection of Seymour Way and Proctor Road. [Note 46] The wall was expected to be four to five feet in height at its highest, and forty to fifty feet long, extending alongside the wetlands. [Note 47] Plaintiff anticipated being able to re-grade the non-wetlands side, to obviate the need for a retention wall there. [Note 48]
There ensued a discussion of the proposed communal leaching field intended to service twenty-two of the twenty-seven dwellings in the subdivision. [Note 49] In this regard, Strickland indicated that an application had been filed with the Nashoba Board of Health two weeks prior to the hearing, and that a narrative response was anticipated. [Note 50] He advised that a homeowners association would be responsible for expenses incurred in maintaining the communal septic system. [Note 51] He provided the Commission with the projected septic output of the twenty-two homes to be served by the leaching field: the twenty-two homes include eighty-eight bedrooms, the average bedroom produces 110 gallons of septic waste per day, and, hence, plaintiff expects a design flow of 9680 gallons per day. [Note 52] He characterized 10,000 gallons per day of septic waste as the benchmark for requiring a water treatment facility, and because of the subdivisions proximity to that number, the first five houses within the development would require their own private septic systems. [Note 53]
Commission member Michele Cannon set forth a list of concerns compiled during the recent site visit, as follows:
a) wetlands flag #105A;
b) Lot 6 as proposed slopes down to the wetland;
c) the manner in which spans of the wetlands crossings are to be constructed;
d) the respective capacities of the leaching field and thirty foot tank in relation to the size of the subdivision;
e) water and septic utilities passing through or over the bridges;
f) the forty to fifty foot proximity of outflow from the wetlands in a down slope detention basin, and how that distance could pose a problem in the event of emergency overflow;
g) although the Commission could find feasible areas for vegetated buffer replication, it could not locate areas suitable for bank replication;
h) a drainage swale, north of Seymour Way, drains directly into wetland;
i) lack of detail as to Lot 7;
j) within Lot 7, there are only ten to twelve feet separating hay bales from wetland;
k) plaintiff could alter the path of the second crossing so as to extend it straight out from an existing cart path, thereby crossing the wetland at a less vulnerable location;
l) the presence of formations that have vernal pool characteristics on three lots; [Note 54] and
m) plaintiffs failure to address the status of land upon which no development is proposed, much of which contains wetlands. [Note 55]
After a discussion of this list, an abutter questioned the accuracy of certain topographical lines depicting the Proctor Road entrance. [Note 56] The proceedings then turned to the fourteen point checklist provided to the plaintiff at the previous hearing. The only issue that had been resolved concerned the flagging of the site. [Note 57] Strickland, represented that a narrative and construction sequence description would be provided concerning the stabilization of slopes, particularly as to the Proctor Road entrance, and would confirm that the planned road construction would comply with the Highway Departments bylaw. [Note 58]
Yet additional concerns were raised by several Members. Michele Cannon criticized plaintiffs plan to clear the buffer zone right up to the stream, and spoke of the developments impact on area wildlife and the stream itself. [Note 59] She also noted that plaintiff had not yet proffered a plan for restoring the wetlands after the temporary disturbances occasioned by the construction of the crossings. [Note 60] Eric Johnson opined that he would like to see Seymour Way pulled farther away from the wetland. [Note 61] Members were also concerned with sewage that would be pumped through a main running across the wetlands, and septic across the Squannassit River ACEC. [Note 62] The hearing was continued to November 8, 2006. [Note 63]
At that fifth hearing plaintiff submitted a letter [Note 64] which purported to address the Commissions outstanding concerns with respect to the project. [Note 65] The letter set forth the total amount of wetlands filling plaintiff intended to complete in constructing the two wetlands crossings, i.e. 518± square feet. [Note 66] Plaintiff also represented that an additional 3,944± square feet of temporary disturbance would be necessary in constructing retaining walls and placing concrete spans. [Note 67] He asserted that [t]he areas of temporary disturbance will be returned to the existing vegetative and hydric soil conditions immediately upon completion of the crossing construction, without detailing how, or if, such restoration would be possible. [Note 68] The letter additionally indicated that 2,000± square feet of wetlands replication was being proposed:
As to the Proctor Road entrance, plaintiff asserted that the proposed roadway will be constructed adjacent to the wetlands, perhaps implying that there will be no wetlands disturbance at that site. [Note 69] He also averred that the slope gradients at this intersection would be compliant with the Townsend Highway Department Bylaw. [Note 70]
With respect to the wetlands crossing standards, plaintiff contends that, because the crossings will employ open bottom bridge-type spans of the streams, they will meet stream crossing standard #1. [Note 71] He also asserts that given the use of those spans, the openness ratio for both crossings fit within the overall wetlands crossings standards. [Note 72]
The letter further indicates that plaintiff was aware of the extent of information still lacking from the administrative record. Plaintiff acknowledged that, while they specifically refer to areas subject to permanent filling, the submitted plans do not identify stream bank disturbance areas, and need to be revised accordingly. [Note 73] He also conceded that, because the project contemplates more than fifty linear feet of bank disturbance, he must complete a habitat study as per DEP regulation. [Note 74]
As to the Seymour Way and Proctor Road intersection, plaintiff represented that his agents were investigat[ing] any possible topographical discrepancies between the plan and conditions on the ground. [Note 75] Plaintiff acknowledged not only that the Squannassit River ACEC sits, in part, within the boundaries of the subject property, but also the necessity of adding the ACEC to the plans and filing an ENF. [Note 76]
Concerning bankfull widths to crossing length ratios, he suggested that his agents were also investigat[ing] stream flow measurements so as to ensure that the crossing spans would be at least 1.2 times the bankfull widths. [Note 77] With regard to water quality certification, plaintiff conceded that according to DEP regulations, he must either obtain a 401 Water Quality Certification or include restrictive covenants in all of the deeds conveying out property from the subdivision, limiting the total wetland filling for the entire property to less than 5,000 square feet. [Note 78]
As to final ownership of the open spaces, plaintiff failed to explain how he would resolve that matter, suggesting that he did not intend to address it until the subdivision plan was before the Planning Board, and that once the issue had been resolved, he would report same to the Commission. [Note 79] Plaintiff similarly addressed sewage disposal concerns, implying that he would give no definitive answers to the Commission until the proceedings before the Nashoba Associated Boards of Health, had run their course. [Note 80] He also intimated that revised plans would not be forthcoming until input from the Commission, Planning Board, and Associated Boards of Health were complete. [Note 81]
Finally, attached to the letter, plaintiff provided other materials to supplement the record including a breakdown of the buffer zones relevant to the project, and the percentages of those zones that will be subject to direct development. [Note 82] Drainage calculations and an anticipated construction schedule were included as well. [Note 83]
At the hearing, Strickland summarized the contents of the letter for the Commission. [Note 84] He highlighted the fact that there remained several issues before the Planning Board and the board of health that had wetlands significance. [Note 85] He acknowledged that the plaintiff had yet to verify the topography at the Proctor Road entrance. [Note 86] He also suggested that he would soon submit the ENF to the MEPA Office. [Note 87] He specified that the edge of Seymour Way at the Proctor Road entrance would be approximately the width of a hay bale away from the stream. [Note 88]
Commission members raised and reiterated a number of concerns. Clerk Johnson requested that Strickland obtain a letter from the Army Corps of Engineers, stating that the project fits within their Category 1 and that an order of conditions from the Commission would, therefore, be sufficient authorization under their regulatory scheme. [Note 89] Chairperson Chapman reiterated the view that the stream at issue constitutes an Outstanding Resource Water, that it is perennial rather than intermittent and, therefore, requires 401 Water Quality Certification. [Note 90] She advised Strickland that under a 401 Water Quality Certification, plaintiff would be required to construct spans over the entire wetlands areas. [Note 91]
Member Michele Cannon inquired as to the difference between pre-construction and post-construction runoff with regard to wetlands that stood directly adjacent to the proposed Brady Avenue. As currently configured such runoff drains directly into the wetlands at that location. [Note 92] She also inquired as to the impact upon the wetlands if the plaintiff were to build detention basins there. [Note 93] Strickland acknowledged that some runoff from subdivision houses would reach the wetlands. [Note 94] As to wildlife habitat, Member Cannon suggested that plaintiff obtain a NPDES permit before the Commission completes its review. [Note 95]
Thereafter, Strickland reviewed a number of outstanding issues broached by the Commission, as follows:
a) MEPA review (401 Water Quality Certification);
b) Army Corps of Engineers stream crossing;
c) wildlife habitat review;
d) retaining wall detail; [Note 96]
e) catch basins at the Proctor Road entrance which would drain directly into the stream; [Note 97]
f) the need to decrease the temporary disturbance as contemplated in plaintiffs letter. [Note 98]
Once again, attending abutters voiced their concerns. [Note 99] The hearing was continued to December 13, 2006. [Note 100]
Between the fifth and sixth hearings, the Commission obtained a copy of a letter to the Planning Board from Holmberg & Howe, Inc. (H & H), an engineering firm retained by the Board to evaluate plaintiffs development. [Note 101] This missive lent expert support to many of the Commissions concerns. In addition, it raised other issues relevant to wetlands protection. [Note 102]
At the sixth hearing, on December 13, 2006, Strickland again submitted a letter. [Note 103] It sought primarily to direct the Commissions attention to a DEP decision holding that where a portion of a stream is classified as intermittent, all portions of that stream that are up gradient from that segment, are also so classified. [Note 104] Consequently, plaintiff argued that the Commission should classify the wetlands at issue as intermittent. [Note 105] Strickland went on to report on the progress being made in addressing the still outstanding issues raised by the Commission. [Note 106] He indicated that surveyors had visited the Proctor Road entrance in order to reconcile the topographic discrepancies in the plans. [Note 107] A discrepancy had been identified, and as a consequence revised plans would be forthcoming, as well as a twenty foot scale enlargement of the Proctor Road entrance. [Note 108]
Further, he indicated that the plaintiff had filed an ENF with the Executive Office of Environmental Affairs. [Note 109] He conceded that a wildlife habitat evaluation had not yet been completed. [Note 110] As to re-locating the second crossing to conform to a pre-existing cart path, [Note 111] and some of the roadways, Strickland related that DeCarolis had decided not to alter existing plans, notwithstanding the Commissions suggestions to the contrary. [Note 112] Lastly, he requested that the Commission draft a letter detailing the remaining issues of concern. [Note 113]
Chairperson Chapman felt that the Commission should permit the Planning Board to act upon plaintiffs application before the possible issuance of an OOC. [Note 114] Vice Chairman Stonefield was concerned with the capacity of the catch basins at the Proctor Road entrance, as well as with the concomitant lack of town resources for monitoring and maintaining the storm water management system (system). [Note 115] Member Linda Mack inquired whether the Commission retained its traditional policy of allowing only one wetland crossing in a development. Her colleagues responded in the affirmative. [Note 116] After four abutters voiced their concerns, [Note 117] the hearing was continued to January 24, 2007.
Following a continuance on January 24, 2007, [Note 118] the Commission once again took up plaintiffs NOI, on February 28, 2007. [Note 119] At that time, Strickland presented a revised plan to the Commission [Note 120] and indicated that it would be ready for formal submission, four to six weeks hence. [Note 121] A number of changes were reflected in this plan. Specifically, plaintiff pared down the proposed development by one buildable lot (Lot 6), reducing the total number from twenty-seven to twenty-six; he treated the stream up gradient from the impoundment as perennial; he altered Seymour Lane, Lot 7 in particular; he widened the second crossing to twenty feet with fifty linear feet of bank disturbance (no planned bank replication); and he had the topography of the Proctor Road entrance updated. [Note 122]
For the first time, Strickland stated that additional wetlands crossings were contemplated for a proposed recreational area within the subdivision. [Note 123] He assured the Commission that, when the Planning Board considered the recreational area, the Commission would be notified. [Note 124]
Again, four abutters appeared and offered their concerns. [Note 125] Chairperson Chapman asked Strickland about any plans to certify confirmed vernal pools in, and in close proximity to, the development. [Note 126] Strickland responded that he would consult his employer and the plaintiff in this regard. [Note 127] The hearing was continued to March 28, 2007. [Note 128]
Between the eighth and ninth hearing dates, on March 21, 2007, the Commission received a copy of another letter signed by Jeffrey Rider on behalf of H & H. [Note 129] The letter, dated February 18, 2007, was originally sent to the Planning Board. [Note 130] It again raised the issue of liability with regard to the operation and maintenance of the developments drainage system. [Note 131] It also noted that plaintiffs drainage calculations did not report the developments impact on the water elevation of the relevant wetlands. [Note 132]
On March 28, 2007, the plaintiffs request for continuance was granted; April 25, 2007 was set for as the next hearing date. [Note 133] The Commission heard plaintiffs NOI on April 25, 2007. This hearing proved to be the last conducted on plaintiffs application. [Note 134] Strickland presented a modified plan incorporating a number of revisions, including those presented at the prior meeting. [Note 135], [Note 136] In this regard, plaintiff:
1) substituted a detention basin for Lot 6;
2) widened the first crossing span to forty-eight feet, thereby avoiding permanent bordering vegetated wetland alteration and bank disturbance;
3) reconfigured the already lengthened span of the second crossing to reduce the bank disturbance to thirty-one linear feet from fifty;
4) moved the septic pump station away from the ACEC and buffer zones;
5) enlarged the detention basins near the proposed Seymour Way and Brady Avenue;
6) added stone rip rap to stabilize the slope at the Proctor Road entrance;
7) designated the 490,000 square feet of ACEC, seven percent of which would be disturbed by the roadways and one percent of which would be disturbed by Lot 1; and
8) added the specifications for the VortSentry storm water treatment system plaintiff intended to employ.
The Commission members voiced a number of concerns with regard to the project, even as so revised and reconfigured. Chairperson Chapman reiterated her request for greater detail regarding the Proctor Road entrance. [Note 137] She noted that the entrance would have been under water during a recent storm of April 15, 2007. [Note 138] She suggested that the proposed retaining wall would not have kept the water from the road. [Note 139] Strickland responded by stating, inappositely, that wetland boundaries are set by the state. [Note 140] The Chairperson informed Strickland of the Commissions discretion to prohibit work within the one hundred foot buffer zone, and, in light of the scant detail provided by the plaintiff thus far concerning that entrance, she could not conclude that this part of the development would adequately protect wetlands interests. [Note 141] She also opined that she could not responsibly approve plaintiffs plan if the Highway Department were to be held responsible for repairing the retention walls after storms such as the one noted above. [Note 142]
Concerning wildlife habitat issues, Chapman inquired whether the plaintiff had submitted his NOI to the Natural Heritage and Endangered Species Program (NHESP). [Note 143] Strickland responded that he was unsure. [Note 144] She told Strickland that she would be unwilling to approve plaintiffs project with conditions until she heard from the NHESP concerning the locus. [Note 145] She also asked why plaintiff had not yet provided a storm water pollution prevention plan, to which Strickland responded that such a plan had not been filed with the NPDES program and would not be so filed, until the project was approved. [Note 146]
Commission Member Cannon expressed doubt as to plaintiffs ability to effectively design the Proctor Road entrance so as to adequately protect the adjacent wetlands. [Note 147] She also noted that as a general matter, plaintiff had not supplied information regarding the protection of the wetlands areas during and after construction. [Note 148] She observed that the entrance as proposed, the loss of tree canopy that would be occasioned by that construction, and the increased temperature of the water in the stream occasioned by the loss of canopy, would result in damage to the wetlands. [Note 149] Moreover, she cautioned that in response to requests for more detail concerning the entrance, if plaintiff intended to provide no more than enlarged versions of already submitted plans, then such submissions would be unacceptable. [Note 150] In light of these criticisms, Cannon suggested that a denial would be the only appropriate course at that time. [Note 151]
Clerk Johnson joined Chairperson Chapman and Member Cannon in voicing reservations about the Proctor Road entrance. [Note 152]
Vice chairman Stonefield was concerned with the removal rate of plaintiffs storm water management system during a one inch per hour storm event, which was quoted as eighty percent of total suspended solids. [Note 153] Strickland responded that he would inquire whether the system could be enhanced to remove ninety-three percent of total suspended solids during such a storm. [Note 154] During a discussion of plaintiffs drainage calculations, Stonefield noted that they were premised upon the use of vacuum equipment to maintain the storm water management system, i.e. equipment that the town neither possessed outright, nor possessed the funds to acquire. [Note 155]
Member Mack questioned the logic of allowing a septic system main to travel over a public road that crosses a stream, when the Commission would not allow such a main to cross a stream over private property. [Note 156] She also asked her colleagues how many hearings the Commission had held thusfar in seeking to elicit satisfactory information from the plaintiff. [Note 157] She suggested that if they were not inclined to allow construction of the entrance within 35 feet of the wetlands, then, regardless of the gaps in the administrative record, the Commission should deny approval on that ground. [Note 158]
As had been the case at prior hearings, several abutters voiced their concerns. [Note 159] Ms. Messing of Proctor Road reiterated her position that the plans erroneously depicted the topography at the entrance disregarding a twelve foot esker. [Note 160] Strickland conceded that the plan still failed to accurately represent the area topography. [Note 161]
After a final discussion concerning the Proctor Road entrance, Strickland requested a further continuance of six to eight weeks in which to properly supplement the record. [Note 162] Member Pettit noted that plaintiff had been previously warned that the construction of three residences on a common driveway off of Proctor Road would cut off possible development from access to public roadways. [Note 163] Thereafter, the Commission voted unanimously, five to none with one abstention, to deny the Notice of Intent under the Wetlands Bylaw. [Note 164]
The written decision issued by the Commission dated May, 15, 2007, provides as follows:
The Townsend Conservation Commission voted on April 25, 2007 to deny the Notice of Intent . . .under the Townsend Wetlands Bylaw based on proposed activity within the 35 No Disturb Zone and on a lack of information. . . .
Outstanding Issues under the Townsend Wetlands Bylaw 35 No Disturb Buffer Zone
1. The 35 No Disturb Zone Exists to protect resource areas such as wetlands and buffer zones from negative impacts. It is inevitable that the extensive clearing within the 35 No Disturb Zone required to create the entrance off Proctor Road will impact the physical, chemical, and biological characteristics of the buffer zone and the stream (locally known as Gassetts Brook). Removal of vegetation around the stream will cause significant changes including: increased sunlight and water temperatures; reduce nutrient inputs from decaying organic matter; and increased soil erosion. Gassetts Brook not only flows into the Squannacook River, which is classified as an Outstanding Resource Water (ORW) but it also provides habitat for the Triangle Floater Mussel which has been identified as a Species of Special Concern in Massachusetts by the Natural Heritage and Endangered Species Program. In addition, the project is in an area classified as a Critical Supporting Watershed by the Living Waters Project of the Executive Office of Environmental Affairs and Natural Heritage & Endangered Species Program.
2. The Commission has not been presented with evidence that the construction of the proposed road off of Proctor Road will not have temporary or long-term impacts on the wetlands and buffer zones protected under the Townsend Wetlands Bylaw.
3. The proposed retaining wall at the Proctor Road entrance (as shown on the plan) will be at the stream bank if not in the stream. In August 2006, a narrative and the construction sequence related to the slope stabilization and retaining wall along Proctor Road was requested but never received. The Commission has not been presented with evidence that the construction of the road off of Proctor Road will not have temporary or long-term impacts on the wetlands and buffer zones protected under the Townsend Wetlands Bylaw.
Outstanding Issues under the Townsend Wetlands Bylaw and the Wetlands Protection Act
The Commission has continued concerns about the stormwater management plan. These items are not specifically addressed in the Operations & Maintenance Procedures of the Drainage Report dated 4/19/07 or any other narrative provided by the applicant.
1. The majority of the proposed development drains to only two detention basins. The Commission is concerned that too much runoff is diverted away from the natural drainage areas, which will deprive the wetlands of their source of water, resulting in additional wetlands loss.
2. The applicant is not recharging ground water to the maximum extent practicable. (Stormwater Standard #3). The project as proposed does not maintain or improve quantity and quality of groundwater that supplies wetlands, etc., while not diminishing its quality.
3. The stability of slopes at wetland crossings, detention basin (Stormwater Standard #1) and home sites is still in question. In addition, the applicant has not demonstrated that the drainage system will ensure that no excessive runoff will wash down the hill, potentially eroding the stream bank and washing silt into the stream.
4. The maintenance plan in the Stormwater Management Plan calls for operations that the Town does not have the equipment, time, or training to perform. The Townsend Highway Department has stated that they cannot maintain it. If the operations are not done as called for in the plan, the stormwater system will not function as stated. The applicant has not stated whether or not the homeowners association will be responsible for the maintenance of the system. (Stormwater Standard #9)
5. A NPDES ENF needs to be filed for a General Permit. A Stormwater Pollution Prevention Plan (SWPPP) is acceptable.
6. The Commission is concerned about erosion to the streams and wetlands during construction. (Stormwater Standards #1 and #8) [Note 165]
1. The Commission requested and has not received information about the temporary bank disturbance at the wetland crossings.
2. The Commission requested sufficient details on the elevations of all of the river and stream crossings.
3. The Commission requested specific details on how wetland crossing #2 will be constructed, since it is at a higher elevation than the road approaching it.
4. The Commission has not been given a narrative or plan for replicating the stream bank that will be altered near Proctor Road. The Commission requested detailed information on all bank replication.
5. While we have discussed possible locations for the replication area(s) with the applicants representative, we still need plans for the location(s), size, and construction sequence for these area(s).
6. The Commission remains concerned about the septic system pipes at the two wetlands crossings. These pipes would travel over the wetlands. The Commission has concerns about the legal authority and procedures for maintenance and repairs.
7. The Massachusetts Stream Crossing Handbook recommends general and optimal standards for stream crossings. In critical supporting watersheds, optimal standards are suggested and general standards required. The optimal standard for width states, the crossing should be at least 1.2 times the bankfull width of the stream and should span the banks to allow for dry wildlife passage during at least ten months of the year. The Commission requested information on how the bankfull width of the stream at each crossing was determined.
8. The Commission requested that the applicant obtain a letter from the U.S. Army Corps of Engineers stating that each of these crossings are Category 1 under the Programmatic General Permit, and not Category 2 or 3, and comply with their requirements.
1. A Wildlife Habitat Evaluation was requested but never submitted.
2. The applicant must file for a 401 Water Quality Certificate because an Outstanding Resource Water (ORW) will be disturbed.
3. The applicant must comply with regulations and file with the NHESP due to a provision in the MESA [Note 166] regulations, which states that new Estimated and Priority Habitat maps do apply if an Order of Conditions has not been issued. (321 CMR 10.13) The applicant has not filed with the Natural Heritage and Endangered Species Program and a response from them is required prior to the Commission issuing an Order of Conditions.
4. Topographical information at the entrance of the project from Proctor Road is still inaccurate despite repeated requests for these corrections.
5. An alternatives analysis for work within the Riverfront Area has not been provided.
6. Filling within a resource area in an ACEC is prohibited. The project as proposed will fill 518 sq ft of wetland resource area.
7. The effect of the reduction of tree canopy including increased sunlight on the wetlands, many of which are vernal pools, must be addressed.
The plaintiff filed his complaint in the instant matter 59 days later on July 13, 2007.
On September 10, 2007, this court held a case management conference, at which Attorneys McNeill and Winner appeared. After this court allowed a motion to extend the deadline for filing the administrative record, the defendant filed such record on November 14, 2007. Plaintiff then filed his Motion for Judgment on the Pleadings with supporting memorandum on March 17, 2008. The defendant filed its Opposition and Cross Motion on April 18, 2008. This court heard the motions on May 7, 2008, and took the matter under advisement.
A. Standard of Review
When aggrieved by the decision of a Conservation Commission acting under its local authority as derived from a municipal wetlands ordinance or bylaw, a party may seek review through an action in the nature of certiorari pursuant to G. L. c. 249, § 4. Lovequist v. Conservation Commn. of Dennis, 379 Mass. 7 , 15-16 (1979); Balcam v. Hingham, 41 Mass. App. Ct. 260 , 264 (1996). In these actions, the plaintiff bears the burden of proving that the Commissions decision should be overturned. See T. D. J. Dev. Corp. v. Conservation Commn. of N. Andover, 36 Mass. App. Ct. 124 , 129 (1994) (holding [t]he burden of proof lies with the plaintiff to prove that the [Commissions decision is] not reasonably related to the preservation and protection of the interests protected by the bylaw), citing Forsyth School of Dental Hygienists v. Board of Registry in Dentistry, 404 Mass. 211 , 217-218 (1989).
In general terms, the scope of certiorari review is limited to correcting substantial errors of law apparent on the record adversely affecting material rights. FIC Homes of Blackstone, Inc. v. Conservation Commn. of Blackstone, 41 Mass. App. Ct. 681 , 684 (1996), quoting Commissioner of Revenue v. Lawrence, 379 Mass. 205 , 208 (1979). More specifically, the standards employed by a reviewing court under the certiorari statute vary according to the nature of the underlying administrative proceeding. T. D. J. Dev. Corp., 36 Mass. App. Ct. at 124, citing McSweeney v. Town Manager of Lexington, 379 Mass. 794 , 800 (1980); Forsyth Sch. of Dental Hygienists, 404 Mass. at 217. In cases such as the one before this court, the applicable standards include arbitrary and capricious, T. D. J. Dev. Corp., 36 Mass. App. Ct. at 217 & n. 2. (internal quotations omitted), substantial evidence, Lovequist, 379 Mass. at 17-18, and legally tenable, see Pollard v. Conservation Commn. of Norfolk, 73 Mass. App. Ct. 340 , 348 (2008).
The common thread of these standards is the weighty deference owed Commissions in reviewing their findings of fact, and interpretations of the bylaws entrusted to their enforcement and regulations promulgated by them pursuant to those bylaws. See Rodgers v. Conservation Commn. of Barnstable, 67 Mass. App. Ct. 200 , 208 (2006) (opining reviewing court must give substantial deference to the agencys findings of fact and interpretation of its regulations). Accordingly, [i]f the [Commission] has, in the discretionary exercise of its expertise, made a choice between two fairly conflicting views, and its selection reflects reasonable evidence, [a] court may not displace the [Commissions choice]. Conservation Commn. of Falmouth v. Pacheco, 49 Mass. App. Ct. 737 , 740 n. 3 (2000), quoting Lisbon v. Contributory Retirement Appeal Bd., 41 Mass. App. Ct. 246 , 257 (1996), quoting Southern Worcester County Regional Vocational School Dist. v. Labor Relations Commn., 386 Mass. 414 , 420 (1982). That said, the reviewing court must not confuse judicial deference and restraint [with] abdication. Fafard v. Conservation Commn. of Reading, 41 Mass. App. Ct. 565 , 572 (1996), quoting National Amusements, Inc. v. Boston, 29 Mass. App. Ct. 305 , 310 (1990) (internal quotations omitted).
In applying these standards, the court must evaluate the decision below on the basis of the entire administrative record, Paley v. Department of Envtl. Protection, Mass. App. Ct. Docket No. 05-P-285, Memorandum and Order Pursuant to Rule 1:28, 2006 WL 408254, *2 (Feb. 22, 2006), and this assessment must be limited to the reasons explicitly provided by the Commission for makings its determination. Fieldstone Meadows Dev. Corp. v. Conservation Commn. of Andover, 62 Mass. App. Ct. 263 , 266 n. 2 (2004).
In the instant case, the Commission enumerated 24 bases in denying relief under the bylaw. One of those concerned development within a 35 foot vegetated buffer zone. Plaintiff attacks this reason as the product of an ad hoc agenda and, therefore, arbitrary and capricious or legally untenable, i.e. rather than based upon an express provision of the bylaw or regulation, or being rationally related to same. [Note 167]
The remaining grounds specify 23 areas in which plaintiff failed to provide sufficient information to enable the Commission to properly condition the proposed project so as to avoid or adequately minimize harm to wetlands interests and areas. Plaintiff advances numerous arguments in addressing the issues so raised.
First, plaintiff contends that it was error not to allow his requested continuance at the last hearing, thereby providing him additional time to address each of these outstanding concerns. [Note 168] Second, plaintiff contends that he had supplied adequate information with regard to each issue, and the Commissions requests for additional information were unsupported by the record. [Note 169] As to those bases that were also recited verbatim by the Commission in denying an OOC under the WPA, plaintiff contends that the Commission lacked jurisdiction under the local bylaw to render a decision based upon those grounds, because DEP, in plaintiffs appeal thereto, retained jurisdiction over those issues. [Note 170] Also as to some of those grounds, which required plaintiff to obtain approval under other, independent regulatory schemes, plaintiff contends such bases were in excess of authority, outside the Commissions jurisdiction under the bylaw. [Note 171]
Plaintiff finally asserts, in the alternative, that the Commission failed to properly specify which provisions of the bylaw and regulations it relied upon in making its decision, rendering the decision fatally defective. [Note 172] This court will consider plaintiffs arguments in turn below.
B. Thirty-Five Foot No Disturb Zone
In its written decision, the Commission recites, inter alia, that it voted . . . to deny [plaintiffs] Notice of Intent . . . and corresponding plans . . . under the Townsend Wetlands Bylaw based on proposed activity within the 35 No Disturb Zone. R. 14. Plaintiff argues, citing Fieldstone Meadows Dev. Corp. v. Conservation Commn. of Andover, 62 Mass. App. Ct. 265 (2004), and Fafard v. Conservation Commn. of Reading, 41 Mass. App. Ct. 565 (1996), that, because no such buffer zone prohibition exists within the four corners of the bylaw or regulations, the Commissions denial of [plaintiffs] application was [, therefore,] improperly based on a policy existing outside of the regulatory framework. Fieldstone Meadows Dev. Corp., 62 Mass. App. Ct. at 267. [Note 173] Plaintiffs argument is flawed in several respects.
First, as plaintiff admits, [Note 174] the regulations do in fact refer to this buffer zone. Section 150-2(K)(7) thereof recites that [t]he following information is to be shown on plans unless deemed unnecessary or waived by the Townsend Conservation Commission . . . [v]egetated buffer of naturally occurring plant material: minimum 35 feet wide along all wetlands and water bodies. R.692-693. [Note 175] While plaintiff may prefer that this provision be worded otherwise, it will suffice to establish the buffer zone as a requirement and to authorize the Commissions denial in its absence. See Fafard, 41 Mass. App. Ct. at 572 (noting Commission[s are] entitled to all rational presumptions in favor of [their] interpretation[s] of [their] own [regulations]). [Note 176] See also Conroy v. Conservation Comm. of Lexington, 73 Mass. App. Ct. 552 , 558 (2009) (opining that reviewing court must give substantial deference to the Commissions reasonable interpretations of the bylaw conducted in process of promulgating regulations); Fogelman v. Chatham, 15 Mass. App. Ct. 585 , 590 (1983) (holding it is enough if a general policy is stated with reasonable clarity; the detailed application of that policy to particular fact situations may appropriately be left to administrative bodies and the courts). Consequently, this basis for denial does not spring from an ad hoc policy designed merely to thwart a given proposal, but rather from the text of the regulations themselves. [Note 177]
In short, this criterion applied [in denying plaintiffs application was not] devised for the occasion, but rather bore a rational relation [to] the regulations [the Commission] is charged with enforcing. Fieldstone, 62 Mass. App. Ct. at 57.
C. Lack of Information
The plaintiff asserts that the Commissions reliance upon a lack of adequate information is unsupported by substantial evidence, is legally untenable, and is in excess of authority. These arguments will be discussed in turn below.
i. Plaintiff Should Have Been Granted a Continuance
In his brief, DeCarolis states, [the Commission] asked for more information, did not give the Plaintiff time to provide it, and then used that as a basis for its Denial. Plaintiffs Brief, p. 26. The notion that plaintiff was entitled to an additional continuancean open ended opportunity to adequately supplement the recordis controverted by express provisions of the bylaw and the Commissions regulations. Section 138-6 of the bylaw concerns the burden of proof in proceedings before the Commission:
[t]he applicant shall have the burden of proving by a preponderance of the credible evidence that the work proposed by him or her in the notice of intention will not cause significant harm to those interests sought to be protected by this by-law. Failure to provide the Conservation Commission with adequate evidence for it to determine that the proposed work does not probably cause significant harm to the interests sought to be protected by this bylaw shall be sufficient cause for the Conservation Commission to deny such permit or to grant such permit with such conditions as it deems reasonably necessary or desirable to carry out the purposes of this bylaw, or to postpone the hearing to another date certain to enable the applicant and others to present additional evidence, upon such terms and conditions as seem to the Commission to be just.
R. 687 (emphasis supplied).
It is apparent that, beyond imposing a standard of proof upon the applicant, this provision presents the Commission with a range of options, including that of denial, when insufficient evidence has been submitted.
Moreover, § 150-2(H) of the Commissions regulations provides as follows:
Any hearing held under the Wetlands Bylaw, Town of Townsend, may be continued with the applicants consent for a reasonable time in order to allow the applicant sufficient time to produce information which the Commission deems necessary to make a decision on the impact of the project. As an alternative to continuance or after failure or refusal by the applicant to produce additional information as requested, the Commission may deny the project.
R. 692 (emphasis added).
The Commissions decision to deny DeCarolis an additional multi-week continuance under the circumstances that pertain herein, fully accords with the express provisions of the bylaw and regulation, alike.
In this connection, the Commission denied relief, citing lack of information, after ten hearings spanning a nine month period. Plaintiff had been granted two continuances within that time frame. Consequently, the decision not to afford plaintiff an additional continuance does not constitute an act devoid of any ground which reasonable men might deem proper to support it. T. D. J. Dev. Corp., 36 Mass App. Ct. at 128, quoting Cotter v. Chelsea, 329 Mass. 314 , 318 (1952).
ii. Plaintiff Provided Adequate Information
Plaintiffs next argument amounts to a claim that the Commissions conclusions with respect to the adequacy of his submissions, were unsupported by substantial evidence. Indeed, as the Appeals Court in Pollard v. Conservation Commn. of Norfolk observed, there must be a basis in the record for the rejection of uncontroverted expert opinion or for remaining unpersuaded. 73 Mass. App. Ct. 340 , 349 (2008), citing Robinson v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 634 , 639 (1991). With regard to most of the grounds cited herein, there is ample support in the record for the Commissions determination that plaintiffs submissions lacked sufficient detail.
a. Temporary Adverse Effects at Proctor Road Entrance
In the first of its information-based grounds for denial, the Commission concluded that it has not been presented with evidence that the construction of the proposed road off of Proctor Road will not have temporary or long-term impacts on the wetlands and buffer zones protected under the Townsend Wetlands Bylaw. R. 14. Plaintiff responds that he has presented to the [Commission] a detailed drawing of the proposed intersection of the new roadway and Proctor Road [and] his plan shows that there will be no construction required within the wetland resource area and minimal buffer zone area disturbance. Plaintiffs Brief, p. 26. However, plaintiffs argument is unavailing. His plans do not clearly support his argument. As to the wetlands area itself, discussed supra, note 15, the boundary lines of the cross-hatched area designating the wetlands appear to intersect with both the proposed retaining wall and the right of way line of Seymour Way. See R. 134, sh. GR-5. This depiction afforded the Commission reasonable grounds to conclude that the proposed construction would permanently, if not temporarily, disturb the not only the wetlands [Note 178] themselves, but also the buffer zones expressly protected under the bylaw. See § 138-1(B), Record, p. 685 (prohibiting any person from altering resources areas, including lands within a buffer zone without obtaining a permit from the Commission).
Moreover, it is undisputed that Seymour Way, as proposed, extends through the relevant buffer zones, thereby constituting a permanent disturbance. See supra, note 177. As such, the Commission had ample reason to request additional information concerning the manner in which the plaintiff intended to avoid and minimize adverse effects to the wetlands and the surrounding buffer zones. [Note 179]
b. Retention Wall at the Proctor Road Entrance
The second basis for denial concerns (a) the retention wall at the Proctor Road entrance, (b) the failure of plaintiff to submit a construction sequence and narrative with regard to this element of the project, notwithstanding Commission requests, and (c) the Commissions conclusion that plaintiff failed to demonstrate that this element would not have temporary or long term negative impacts upon wetlands resource areas. R. 14. The plaintiffs retort to this claim is identical to the one proffered earlier, i.e. the retaining wall will not be in the wetlands or the wetlands bank. See Plaintiffs Brief, p. 26. [Note 180]
For substantially the reasons set forth supra, § II.C.ii.a, this argument is unpersuasive. The Commission could reasonably conclude by reference to plaintiffs plans, that the retaining wall sits within the wetlands area and the buffer zone and, therefore, plaintiff failed to meet his burden. Moreover, plaintiff failed to honor the Commissions request for a construction sequence and narrative relating to that portion of the development. That failure standing alone could well constitute grounds for denial by the Commission, even assuming the construction did not take place within those areas. [Note 181]
c. Storm Water Management System
The next six informational bases cited in connection with the Commissions denial, relate to the plaintiffs proposed storm water management system. In the first instance, the Commission suggested that the system directs runoff primarily to only two detention basins and diverts too much water away from the wetlands, i.e. thereby depriving the wetlands of water and threatening to cause loss of wetlands. R. 15.
Plaintiff contends that the Commissions position disregards the fact that, as provided [by plaintiffs plans], the roadway runoff discharges to four separate stormwater management facilities [, and a] majority of the site stormwater runoff is not collected by the roadway network, flowing overland naturally, similar to the existing conditions. Plaintiffs Brief, p. 33. Plaintiffs plans corroborate his intention to utilize four detention basins [Note 182] and his post-development subcatchment plan demonstrates a more complex system than is suggested by the Commission. [Note 183] Further, plaintiffs drainage report, prepared by Meisner, states that he intends to implement drainage design [that] effectively utilize[s] the existing site drainage features, by selecting the low points, creeks and wetlands as points of system discharge, ground water recharge and a location for the BMP [best management practices] control structures. Moreover, during the course of the administrative proceedings before the Commission, there were numerous instances in which Commission members raised concerns about water draining directly into the wetlands. [Note 184]
Although it may seem inconsistent to question the sufficiency of the storm water supply directed to the wetlands, as contemplated by the storm water management system (system), while critiquing that systems capacity to adequately store runoff, the two may be harmonized. Insofar as the Commission was concerned with direct drainage into the wetlands, such concerns related to the rate at which water would drain into the wetlands at localized points, not the amount of water feeding the wetlands in general. The former concerns targeted siltation and sedimentation issues, the latter the wetlands basic need for a water supply.
Further, the Commissions concern with respect to the amount of storm water in general, to be directed to the wetlands, finds support in the record. On March 21, 2007, in between the eighth and ninth hearing dates, the Commission received a copy of a letter prepared by H & H highlighting the fact that plaintiffs drainage report lacked certain numerical projections regarding the projects impact upon the wetlands water elevation. R. 221, ¶ 39. The letter provided ample evidence to support the Commissions conclusion that the amount of water to be diverted to the wetlands, remained unknown. Plaintiffs failure to meet his burden on this point see supra, § II.C.i, provided reason for the concern that the system would starve the wetlands of water. Moreover, as the Commission in the discretionary exercise of its expertise, made a choice between two fairly conflicting views, and its selection reflects reasonable evidence, this court will not displace the [the Commissions] choice. Pacheco, 49 Mass. App. Ct. at 740 n. 3 quoting Lisbon v. Contributory Retirement Appeal Bd., 41 Mass. App. Ct. 246 , 257 (1996), quoting Southern Worcester County Regional Vocational School Dist. v. Labor Relations Commn., 386 Mass. 414 , 420 (1982) (internal quotations omitted).
The second issue concerning the storm water management system pertains to ground water recharging. The Commission argued that the plaintiffs system would not recharge ground water to the maximum extent practicable (Stormwater Standard #3). Record, p. 15. To this criticism, plaintiff responded that, as demonstrated in the stormwater management form submitted to the [Commission], the project meets the required Stormwater Management Standards under the Stormwater Management Policy of the DEP for groundwater recharge. Plaintiffs Brief, p. 33. On this ground, the plaintiff has met his burden of persuading this court that this basis was in error.
In the cited form, the plaintiff demonstrated compliance with the relevant DEP regulation, including the calculations his engineers employed to reach a compliant rate of ground water recharge. See Record, p. 626, § 4.3. The record is bereft of any indication that the plaintiff inadequately addressed this issue. The Commission, in turn, failed to provide adequate reasons to support its conclusion. It did not question the assumptions upon which plaintiffs experts premised their calculations. It did not identify the standard required of the plaintiff. The record indicates that the matter was never discussed at hearing. As such, this basis was invoked in error, as unsupported by substantial evidence.
The third storm water management issue pertains to the stability of the slopes at wetlands crossings, detention basins, and home sites. The Commission sought greater detail including elevations, drawings, construction sequences and narratives; none of these was supplied by plaintiff. Consequently, the Commission was unpersuaded that the drainage system will ensure that no excessive runoff will wash down the hill, potentially eroding the stream bank and washing silt into the stream. R. 15. To this criticism, plaintiff responded,
[T]he site has been designed in full accordance with Stormwater Management Standards under the Stormwater Management Policy of the DEP, including matching peak runoff rates across the property, as stated to the Commission and as shown on the Plans. Additionally, the 3:1 graded slope is typical practice to ensure vegetated slope stability.
Plaintiffs Brief, p. 33. At first blush, the argument that plaintiffs designs comply with the relevant state regulations, appears compelling. Nevertheless, the Commission had reason to seek additional information. Plaintiffs response focused upon design. The Commission, by contrast, requested information concerning the manner in which plaintiff would actually implement this design. Plaintiff has failed to show that this request has been honored or is otherwise unreasonable. Predicated upon the record, this basis upon which the Commission relied, is reasonable.
The Commissions fourth storm water management related issue focuses upon the maintenance plan found in plaintiffs drainage report. That plan contemplates operations that the Town does not have the equipment, time, or training to perform [, and, i]f the operations are not done as called for in the plan, the stormwater system will not function as stated. R. 15. Further, plaintiff has not indicated to whom the maintenance responsibility will fall. Id. On appeal, plaintiff responded that the determination of who will be responsible to maintain the stormwater management system generally falls with the Planning Board Decision on the Definitive Subdivision application. Plaintiffs Brief, p. 34. This response fails adequately to address the Commissions conclusion and whether it is supported by substantial evidence. Rather, it seeks merely to cast doubt upon the Commissions authority to consider the matter in the first place, an issue addressed infra, § II.C.iii. This basis for denial is amply supported by the record. Examination of plaintiffs maintenance plan shows that his proffered maintenance schedule and procedures are predicated upon the use of equipment, such as vacuums, that the town does not possess. See R. 626, §§ 6.2-6.4. Commission members raised the issue on numerous occasions, [Note 185] and H & H identified it as an outstanding concern in its missives to the Planning Board. [Note 186] Though the aforementioned maintenance plan postdated the expression of these concerns, it does not adequately address them. [Note 187] As such, the Commission had a rational basis for considering the issue unresolved.
The next concern relates to plaintiffs failure to file a NPDES ENF, or a SWPPP. The plaintiff does not deny that he failed to submit one of these two documents. Instead, he contests the Commissions authority to require the filing of such forms, because they fit into a national regulatory scheme rather than a state or local one. See Plaintiffs Brief, p. 34. This court will consider this argument below in § II.C.iii. For present purposes, suffice it to note that the absence of these forms on the record is undisputed.
The final issue related to the storm water management system involves possible erosion to the wetlands occasioned by the systems construction. To this criticism, the plaintiff responds that his proposed system complies with all applicable requirements as established by the DEP. In his revised drainage report, plaintiff enumerates procedures to be followed during construction to prevent erosion. See R. 626, § 6.2. In its letter dated January 22, 2007, intended to summarize all outstanding issues, the Commission included the following question under its stormwater heading of concerns:
11. Is there a Construction Period Control Plan?
This court is unable to readily distinguish between the material provided by plaintiff in his revised drainage report and a Construction Period Control Plan.
As to this basis, just as in Pollard, the Commission has not chosen to clarify the question by pointing to anything in the record which would explain its rejection of the plaintiffs evidence, or the perceived deficiencies in that evidence. 73 Mass. App. Ct. at 350. As such, this ground for denial was in error, unsupported as it was, by substantial evidence.
d. Wetlands Crossings
The next eight informational grounds for denial pertain to the wetlands crossings. The first, concerns information requested by the Commission regarding temporary bank disturbance at the wetland crossings caused by construction, which the plaintiff never provided. Record, p. 15. While the plaintiff admits that he did not supply this information, he argues on appeal that this information is not necessary because of the type of bridge span, (i.e. an open bottom box culvert) that he intends to use at the crossings. Plaintiffs Brief, pp. 26-27. This response is wholly inapposite.
The Commission repeatedly asked plaintiff to provide a construction sequence and narrative for each crossing. [Note 188] The purpose of these requests was to ensure that during construction, which entails the placement of the spans, there would be no temporary bank disturbance. See supra, note 181. The use of this type of culvert may ensure that the crossing does the least amount of permanent damage to the wetlands and banks. [Note 189] Nevertheless, reference to the type of span utilized without describing the manner in which it will be placed, failed adequately to address the Commissions concerns. [Note 190] Without such information, [a] rational mind could logically infer that the placement of the culverts, with all of the human and mechanical activity that is thereby entailed, poses a substantial likelihood of temporary disturbance to the banks. Rodgers, 67 Mass. App. Ct. at 206, citing Titcomb v. Board of Appeals of Sandwich, 64 Mass. App. Ct. 725 , 731-732 (2005).
The next basis relates to the elevation drawings provided to the Commission. While the Commission requested more detailed drawings, the plaintiff failed to honor that request. R. 15. Plaintiff suggests, nonetheless, that the plans he supplied included the requisite detail. Plaintiffs Brief, p. 27. The reasonableness of the Commissions request finds support in the record. For instance, at the second hearing, in relaying their concerns from the field, after having concluded their first site visit, Commission members questioned Strickland about the distance between the proposed crossing spans and the wetlands themselves. R. 652. Plaintiff provided an elevation drawing captioned TYPICAL STREAM CROSSING in his plans, but it did not specify the location of the stream in relation to the span. R. 134, sh. DE-1. [Note 191] Given this informational gap, the Commission, in the fourteen point checklist given to Strickland sought more detailed elevation drawings. R. 652. Plaintiff failed however, to provide the requested information.
The next ground for denial constitutes a corollary of the last: the Commission asked for greater detail, including a construction narrative, [Note 192] with respect to how plaintiff intended to build crossing #2, because the proposed span is at a higher elevation than the approaching road. Record, p. 15. The plaintiffs response to this basis is identical to that proffered against the last. See Plaintiffs Brief, p. 27. For substantially the same reason that plaintiffs argument against the previous basis is unavailing, this argument fails as to this one as well.
The Commission requested information based upon certain detail-related deficiencies in plaintiffs submissions, [Note 193] to which plaintiff failed adequately to respond. It will not suffice to argue on appeal that the Commission was in error to ask for more information, without explaining why its request was unreasonable or unsupported by substantial evidence. See T. D. J. Dev. Corp., 36 Mass. App. Ct. at 129 (noting plaintiff bears burden of persuasion in certiorari actions seeking review of conservation Commission decisions).
The fourth basis relates to bank replication at the Proctor Road entrance. The Commission notes that the plaintiff failed to supply any information with regard to bank replication at this location. R. 15. The plaintiff responds as he has to the first two informational bases for denial: there is no planned bank alteration at that location. Plaintiffs Brief, p. 27. As discussed supra, §§ II.C.ii.a-b, in rejecting this now familiar argument, the Commission had reason to believe that plaintiffs development of that intersection would entail bank alteration, owing to the plaintiffs submitted plans. See R. 134, sh. GR-5. As such, this ground is supported by substantial evidence.
The fifth wetlands crossing issue concerns wetlands replication. Although the plaintiff proposed a good deal of wetlands replication in relation to the amount to be filled, [Note 194] the Commission sought an explanation as to the manner in which he intended to do so, including a construction sequence. [Note 195] The Commission contends that plaintiff failed to respond fully to this request. R. 15. The plaintiff argues that he proposed more wetlands replication than needed under DEP regulations, that he intended to locate it in accordance with the Commissions direction, and that he depicted those areas on his submitted plans. Plaintiffs Brief, p. 27. This argument however, fails to address the matter of construction sequence, thereby acknowledging, at least implicitly, that plaintiff failed to respond fully to the Commissions request. In any event, this specific information is absent from the record. [Note 196] This construction sequence is rationally related to the Commissions authority to ensure proper and sufficient remediation when an applicants NOI includes the filling of wetlands. Consequently, this basis for denial must stand, even if the record contains some of the requested information.
The sixth wetlands crossing issue pertains to plaintiffs communal septic system. As per his proposal, septic pipes would cross the wetlands, thereby raising the specter of possible contamination. Plaintiff never detailed where the legal authority for maintenance and repair would reside, or what procedures would be in place for those purposes. R. 15. In his rebuttal, plaintiff focused primarily on whether the Commission had authority to consider septic system related issues under the bylaw or regulations. This court will address that argument below, § II.C.iii. Plaintiffs Brief, p. 37. Moreover, plaintiff opined that it is not uncommon for sewage piping to be within wetland crossing, and directs this courts attention to notes on the Plans [that] detail the installation and testing procedures for the sewer piping within the crossing areas.
Suffice it to say that the suggestion that sewer pipes frequently pass through wetlands crossings is not fully responsive. Moreover, plaintiffs citation to notes on his submitted plan concerning installation of the pipes, falls short of demonstrating that the Commissions conclusions [Note 197] are unsupported by substantial evidence. Once again, the Commission requested certain information, [Note 198] while plaintiff failed to respond fully.
Further, there is evidence on the record that third parties who possess the expertise and skill to be held responsible for such maintenance have expressed doubt about bearing the concomitant liability of such employment resulting from the possibility of contamination. [Note 199] Proper maintenance of septic pipes running through wetlands is essential to safeguarding against contamination of those wetlands, and the Commission had sufficient basis in the record to consider this matter unresolved.
The penultimate wetlands crossing issue involves their widths and spans. The Massachusetts Stream Crossings Handbook recommends that the span of each crossing be no less than 1.2 times the corresponding bankfull width of the stream [Note 200] so as to allow dry wildlife to traverse the wetlands, under the span, for at least ten months out of the year. R.16. The Commission asked the plaintiff to show it how he measured bankfull width at each crossing, [Note 201] and he failed to do so. Id. Plaintiff responds that,
[w]hile additional field measurements were not performed, the widest portion of the delineated stream bank and wetland is just under 40 feet. The 48-foot span is 1.2 times the widest portion of the stream bed and therefore is certainly more than 1.2 times the average bankfull width at the beginning, middle and end of the span. Moreover, the Commission cites the optimal standard which, as it states, is only suggested and not required.
Plaintiffs Brief, p. 37. Facially, this argument has merit; the Commission, however, had a rational basis rooted in the record for rejecting its adequacy. See Pollard, 73 Mass. App. Ct. at 350 n. 10 (opining Commission may reasonably reject an experts opinion where there are flaws in the methodology or assumptions upon which the opinion depends or where the opinion is based upon conjecture or guesswork), citing, e.g., Cataldo v. Contributory Retirement Appeal Bd., 343 Mass. 312 , 314 (1961).
First, the Commission consistently contested whether the SORAD [Note 202] upon which plaintiff based these calculations was truly superseding as to the Commission acting under the bylaw. [Note 203] Second, even assuming that SORAD controls with respect to wetlands delineation under the bylaw, the DEP issued it in 2003, [Note 204] and wetlands do not remain static. It is not unreasonable to require the plaintiff to conduct field measurements over three years after the SORADs issuance. [Note 205]
The final wetlands crossing concern, relates to a letter from the U.S. Army Corps of Engineers attesting to the projects fitting into its Category 1, rather than Categories 2 or 3. R. 16. The Commission repeatedly requested that plaintiff obtain such a letter, but he failed to do so. [Note 206] Id. On appeal, plaintiff argues that an application for a U.S. Army Corps of Engineers Programmatic General Permit is a separate process from the Defendants review under a Notice of Intent, and the amount of wetlands proposed to be altered by this project does not meet their criteria anyway. Plaintiffs Brief, p. 35.
The first part of this argument attacks this basis on jurisdictional grounds and will be considered infra, § II.C.iii. The second assertion essentially argues that the project fits within Category 1 without pointing to any supporting or corroborating evidence. The record neither contains the requested letter, nor evidence that would constitute the letters functional equivalent. As such, plaintiff has failed to meet his burden of demonstrating that this basis for denial is unsupported by substantial evidence by pointing to any countervailing evidence on the record. T. D. J. Dev. Corp., 36 Mass. App. Ct. at 129.
e. Miscellaneous Issues
The final category of informational bases for denial is miscellaneous. The first involves plaintiffs failure to provide a Wildlife Habitat Evaluation, despite repeated requests by the Commission. [Note 207] The plaintiff opposes this basis on jurisdictional grounds only. See Plaintiffs Brief, pp. 35-36 (arguing because plaintiff modified plans to avoid filling within ACEC there is no need for a Wildlife Habitat Evaluation pursuant to DEP regulation, which plaintiff contends is binding upon the Commission acting under the bylaw). As such, this court considers the matter uncontested as to whether the record contains this evaluation or its functional equivalent. The Commission had a rational basis for deeming plaintiffs submissions deficient with regard to impacts upon area wildlife.
The second miscellaneous issue relates to plaintiffs obtaining a 401 Water Quality Certificate. The Commission requested such documentation, [Note 208] but it was never supplied. R. 16. As was true of the prior issue, the plaintiff on appeal contests only the Commissions authority to require such a filing prior to issuing a permit under its local authority pursuant to the bylaw. Plaintiffs Brief, p. 36. Plaintiff opines that the 401 Water Quality Certification process is exclusively within the realm of activities regulated by the DEP. Id. This court, therefore, considers this ground as amply supported by the record. Plaintiff neither supplied the requested certificate nor the information needed to obtain such a certificate.
The third issue concerns the filing of plaintiffs NOI submissions with the NHESP. In its decision, the Commission states,
[t]he applicant must comply with regulations and file with NHESP due to a provision in the MESA regulations, which states that new Estimated and Priority Habitat maps do apply if an Order of Conditions has not been issued. (321 CMR 10.13) The applicant has not filed with the Natural Heritage and Endangered Species Program and a response from them is required prior to the Commission issuing an Order of Conditions.
R. 16. Again, the plaintiff asserts only that Commission acted in excess of authority by denying approval on this basis. Plaintiffs Brief, p. 36. He nowhere contends that he submitted the appropriate materials to the NHESP while the Commissions hearing of his application was open. Id. The record demonstrates that the Commission repeatedly asked plaintiff to complete this process, [Note 209] and even advised that without a response from the NHESP it would not be prepared to approve his project with conditions or otherwise. [Note 210] As such, this basis for denial finds support in the record, without regard to whether the Commission could require such a filing under its municipal authority, which this court will address below, § II.C.iii.
The fourth miscellaneous issue pertains to purportedly erroneous topographical information included in plaintiffs plans relative to the Proctor Road entrance. Plaintiff failed to make the requested corrections. R. 16. On appeal, plaintiff advances the argument that plaintiffs engineers made the requisite revisions, but inadvertently omitted [them] from the Plans [; Strickland] explained this [mistake] to the Commission at the last hearing and apologized for the error. Plaintiffs Brief, p. 28. The plaintiff argues that this deficiency has been corrected, and is shown on the plan submitted as Exhibit H to the Plaintiffs Complaint. Id. This argument is facially flawed.
As discussed supra, § II.C.i, the plaintiff had no right to a continuance. If, after a number of requests by the Commission that he correct his plans, plaintiff neglected to do so after multiple hearings on his NOI, he did so at his own risk. For the same reasons that the Commission was under no obligation to grant another continuance, it was under no obligation to afford plaintiff yet another opportunity to correct his filings.
Moreover, while plaintiff may have appended the revised plans to his complaint, it is well settled that under certiorari review this court is limited to the administrative record as to the evidence it may consider. See Rodgers, 67 Mass. App. Ct. at 206 (explaining [t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight), quoting Cohen v. Board of Registration in Pharmacy, 350 Mass. 246 , 253 (1966), quoting from Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 488 (1951) (emphasis added); Friedman v. Conservation Commn. of Edgartown, 62 Mass. App. Ct. 539 , 542 (2004) (opining [a]n action in the nature of certiorari serves to correct errors of law in administrative proceedings), citing Yerardis Moody St. Restaurant & Lounge, Inc. v. Selectmen of Randolph, 19 Mass. App. Ct. 296 , 300 (1985) (emphasis supplied); FIC Homes, 41 Mass. App. Ct. at 684 (stating [i]n a review under certiorari, the court is limited to correcting substantial errors of law apparent on the record adversely affecting material rights) quoting Commissioner of Rev. v. Lawrence, 379 Mass. 205 , 208 (1979) (citations omitted) (emphasis added).
The plan appended to the complaint was neither presented in the administrative proceedings below, nor is it part of the administrative record reviewed herein today. Accordingly, said plan is extraneous to these proceedings and may not be further considered. Moreover, there is ample evidence in the record that the plaintiffs submitted plans mischaracterize the topography at the Proctor Road entrance. [Note 211]
The fifth miscellaneous issue concerns alternatives analysis. The plaintiff never provided any alternatives analysis with regard to the portion of the project that sits within the riverfront area. R. 16. Plaintiff does not contest the fact that he has not provided any alternatives analysis for this area. Plaintiffs Brief, p. 38. Instead, he attacks the Commissions premise that the relevant stream running through the subdivision is perennial, rather than intermittent, citing the aforementioned SORAD. Id. If intermittent, the wetlands would not constitute a riverfront area, thereby not requiring an alternatives analysis under state regulation. Id. This argument goes to the Commissions authority to determine the streams status, and as such this court will consider this argument below, § II.C.iii. For present purposes, it suffices to note that the parties do not contest that the record is devoid of alternatives analysis.
The penultimate miscellaneous issue concerns the ACEC, and whether plaintiff intends to fill wetlands within its bounds. The Commission stated that filling within a resource area in an ACEC is prohibited. The project as proposed will fill 518 sq ft of wetland resource area. R. 16. On appeal, plaintiff contests the factual accuracy of this basis. Plaintiffs Brief, p. 36. He contends that his proposal no longer contemplates any filling within the ACEC, and what filling is proposed has been minimized to 140 square feet. Id. While plaintiffs plans arguably lend support to his contention with regard to the diminished scope of his proposed wetlands filling, [Note 212] these same plans fail to adequately delineate the ACEC, within the context of plaintiffs project.
Moreover, even with regard to this purportedly reduced level of wetlands filling, plaintiff failed to provide a construction narrative or sequence detailing the manner in which he intends to effectively complete this filling. As such, the statement contained in sh. DE-1 representing the intended amount of filling remains uncorroborated. Given the substantial scale of this project, including two new crossings and the construction of a T-shaped intersection at another existing crossing, [Note 213] the Commission had reason to question plaintiffs proposed level of filling. See Pollard, 73 Mass. App. Ct. at 350 n. 10 (holding [a]n agency may justifiably reject an experts opinion on the basis of facts in the record that make the rejection of the expert evidence reasonable, including facts of a nontechnical nature), citing e.g., Woolfalls Case, 13 Mass. App. Ct. 1070 , 1071-1072 (1982).
In sum, despite plaintiffs assertions to the contrary, and in light of the scant evidence plaintiff provided in support of those claims, the Commission had adequate bases within the record to conclude that the issue of wetlands filling within the ACEC had not been sufficiently resolved. Plaintiff may aver on appeal that he plans no wetlands filling within the ACEC, but his plans do not show where the ACEC is located, they depict two wetlands crossings as well as the construction of an intersection at another crossing; moreover, his other NOI filings do not include a narrative or provide sequential detail as to the manner in which he intends to complete this construction. In the absence of further explanation, [a] rational mind could logically infer from the available facts that wetlands filling within the ACEC would likely occur if plaintiff were permitted to proceed. Rodgers, 67 Mass. App. Ct. at 206, citing Titcomb v. Board of Appeals of Sandwich, 64 Mass. App. Ct. 725 , 731-732 (2005). As such, the Commissions conclusion in this regard, is supported by substantial evidence.
The final miscellaneous issue relates to loss of tree canopy, occasioned by clearing of the vegetated buffer zone. The Commission sought information concerning the impact of this loss upon the wetlands within the development, as it would likely raise stream temperatures and acidity. R. 16. Beyond arguing that the Commission lacks the authority to consider this matter in rendering a decision under the bylaw, [Note 214] plaintiff responded as follows:
[I]t remains unclear to the Plaintiff whether the Defendant required a written submission to address this issue, and, if so, how the Plaintiff would be able to quantify the effect to the wetlands. Plaintiffs Brief, p.28.
This argument is inapposite.
According to the bylaw, as discussed supra, § II.C.i, the applicant bears the burden of proving by a preponderance of credible evidence that his NOI will not serve to adversely impact areas thereby protected. Plaintiff determined to construct roadways crossing wetlands and extending through the vegetated areas surrounding them, both of which are protected by the bylaw. In making that decision, he subjected himself to the obligation to demonstrate that his proposal would not harm those protected areas. The argument plaintiff advances in this regard, casts no doubt on the notion that the Commissions conclusionthat loss of tree canopy is an issue requiring engagement and perhaps remediationis supported by substantial evidence.
As to the Commissions informational grounds for denial under the bylaw that are repeated verbatim in its denial of an order of conditions under the WPA, plaintiff offers jurisdictional arguments. [Note 215] See Plaintiffs Brief, pp. 31-38. Although not free from doubt, these arguments appear to be twofold: 1) that as to some of these bases, the DEP retains final authority, and, therefore, these particular grounds could not provide justification for denial under the bylaw; and 2) as to others, the Commission acted in excess of authority in asking for certain materials because those items fit into other, independent regulatory schemes over which the Commission has no authority. In general, this court is persuaded by neither, and will consider each in turn.
a. Primary Jurisdiction
It is well settled that municipalities may adopt their own wetlands protection bylaws or ordinances. Rodgers, 67 Mass. App. Ct. at 204; Dubuque v. Conservation Commn. of Barnstable, 58 Mass. App. Ct. 824 , 826 n. 4 (2003); FIC Homes, 41 Mass. App. Ct. at 686; Fafard, 41 Mass. App. Ct. at 568; DeGrace v. Conservation Commn. of Harwich, 31 Mass. App. Ct. 132 , 135 (1991). The WPA does not evince an intent to preempt such enactment, and the Home Rule Amendment provides the constitutional authority to adopt such municipal laws. Lovequist, 379 Mass. at 14-15; Dubuque, 58 Mass App. Ct. at 826 n. 4. This concurrent jurisdiction is conceptually coherent, because, as the appellate courts have noted, the WPA provides the baseline for wetlands protection within the state, leaving municipalities free to implement more stringent regulation. Oyster Creek Preservation, Inc. v. Conservation Commn. of Harwich, 449 Mass. 859 , 866 (2007); Lovequist, 379 Mass. at 15; Fafard, 41 Mass. App. Ct. at 568; The Southern New England Conference Assoc. of Seventh-Day Adventists v. Town of Burlington, 21 Mass. App. Ct. 701 , 706 (1986).
That said, a Conservation Commission exercises final authority under such a bylaw or ordinance only where it acts pursuant to a more stringent provision of those local codes. Pacheco, 49 Mass. App. Ct. at 741 n. 4; T. D. J. Dev. Corp., 36 Mass. App. Ct. at 126; DeGrace, 31 Mass. App. Ct. at 135; Hamilton v. Conservation Commn. of Olreans, 12 Mass. App. Ct. 359 , 364 n. 5. When a Commission renders a decision based upon such provisions, a superseding order of conditions issued by the DEP cannot preempt the local determination. Oyster Creek, 449 Mass. at 864; Pacheco, 49 Mass. App. Ct. at 741 n. 4; FIC Homes, 41 Mass. App. Ct. at 687; T. D. J. Dev. Corp., 36 Mass. App. Ct. at 126; Hamilton, 12 Mass. App. Ct. at 368.
If, for example, the Commission were to rest its local decision upon a bylaw provision that repeats, word-for-word, the language of the WPA [Note 216] thereby rendering that provision no more stringent than existing state law, the DEPs subsequent order would supersede the Commissions decision. See DeGrace, 31 Mass. App. Ct. at 136 (holding because bylaw specifically adopts and incorporates by reference the definition section of the act . . . [, i.e] the town chose not to impose more stringent controls than those set by the Legislature . . ., it follows that the [DEP] had the authority to issue a superseding order).
In light of this rule, enunciated in DeGrace, a number of appellate decisions have gone to great lengths in seeking to determine the extent, if any, to which a bylaw or ordinance is more stringent than state law. See Conroy v. Conservation Commn. of Lexington, 73 Mass. App. Ct. 552 , 553 (2009) (concluding bylaw more stringent than WPA because any alteration within buffer zone requires permit under bylaw, which is not so under WPA); Rodgers, 67 Mass. App. Ct. at 204-205 (holding inclusion of additional protected interest, i.e. recreation, renders bylaw more stringent as to matters implicating that interest); Hobbs Brook Farm Property Co. Lim. Partnership v. Conservation Commn. of Lincoln, 65 Mass. App. Ct. 142 , 146-152 (2005) (weighing stringency of burdens of proof and alternatives analysis, as well as noting differences in protected interests, as between act and bylaw in ruling bylaw more stringent); FIC Homes, 41 Mass. App. Ct. at 687-688 (distinguishing place of buffer zone within WPA and wetland bylaw regulatory schemes in determining bylaw more restrictive); T. D. J. Dev. Corp., 36 Mass. App. Ct. at 126-128 (differentiating between WPA and bylaw treatment of buffer zones and protected interests in concluding bylaw more stringent).
The guiding principle in this area is summed up in the Appeals Courts recent treatment of the issue in Healer v. Department of Environmental Protection:
A local authority exercises permissible autonomous decision-making authority only when its decision is based exclusively on the specific terms of its bylaw which are more stringent than the act. 2009 WL 416838, *3 (Mass. App. Ct.)
Accordingly, under G. L. c. 249, § 4, this court may review the Commissions local decision to the extent that it is predicated upon more stringent provisions of the bylaw. Other grounds that are based upon provisions no more stringent than the WPA, however, may be the subject of judicial review under G. L. c. 30A, § 14, after final action by DEP. [Note 217]
Bearing these principles in mind, this court must answer two basic questions: 1) is the bylaw at issue more stringent than the WPA, and 2) assuming that it is more restrictive, did the Commission rely upon those more stringent provisions of the bylaw when it cited specific informational grounds in denying plaintiff a permit? In general, this court answers both in the affirmative.
The bylaw is more restrictive than the WPA in two significant ways. First, the bylaw includes erosion control [and] sedimentation control in its enumeration of interests protected by this bylaw. R. 685 (internal quotations omitted). [Note 218] The decisional law makes clear that invocation of these specific interests, which are protected only derivatively by the act, renders a bylaw more stringent, because harm to them standing alone affords the Commission authority to deny a wetlands permit under the local bylaw. See Hobbs Brook Farm, supra; T. D. J. Dev. Corp., supra. [Note 219] Thus, the bylaw is more stringent than the WPA by broadening the scope of protected interests. .
Second, the bylaw is more restrictive than the WPA concerning protected areas. [Note 220] Whereas the regulations promulgated pursuant to the WPA impose buffer zones only insofar as they are needed to insulate protected wetlands areas from harm, see FIC Homes, 41 Mass. App. Ct. at 685 n. 5 (under Act, development within vegetated buffer presumed to be significant to protected areas), the bylaw expressly protects the buffer zones themselves. Case law holds such treatment of buffer zonesas expressly protected areasas a demonstration of greater stringency. See FIC Homes, 41 Mass. App. Ct. at 687 (holding bylaw more stringent because it requires applicants to file a notice of intent for any work within a 100-foot buffer zone of a wetland [, whereas] the act regulates activities in the buffer zone only if they will alter a nearby wetland); T. D. J. Dev. Corp., 36 Mass. App. Ct. at 126-127 (same). See also, Conroy, 73 Mass. App. Ct. at 553 (same). Accordingly, with regard to protected areas, the bylaw is more restrictive.
Having established that the bylaw is more stringent than the WPA, this court must now consider whether the Commissions local decision was properly tethered to those provisions which are more restrictive. In general, this court concludes that it was sufficiently related to those provisions.
As discussed above, § II.C.i, the bylaw and regulations authorize the Commission to deny approval based upon an applicants failure to submit adequate information. [Note 221] The Commission exercised such power in this case. Just as approval under the state and denial under the local scheme introduces no legal dissonance, Fafard, 41 Mass. App. Ct. at 568, the mere fact that the Commission cited the same informational gaps whilst wearing both its statewide and local hats does not necessitate the conclusion that those points of informational inadequacy relate only to compliance with the WPA. [Note 222] In point of fact, they relate to more stringent provisions of the bylaw and regulations.
First, as to those remaining storm water management issuesi.e. those that were not eliminated in the previous subsection for being unsupported by substantial evidencethey, by definition, relate to concerns targeting erosion and sedimentation control, and, as such, fall within the Commissions permissible autonomous decision-making authority. Healer, supra, *3. [Note 223]
Second, most of the remaining concerns, both those relating to the crossings and miscellaneous, bear a logical nexus to either the bylaws greater scope with respect to protected interests, or with regard to protected areas. [Note 224] The only issues that prove unreviewable under this analysis are those relative to wildlife protection and the protection of public and private water supplies. See supra, note 224.
b. Decision in Excess of Authority
Beyond suggestions that the DEP retains final decision making authority over the bases recited verbatim in both denials, plaintiff attacks a handful of them for requiring applications or certifications from other, independent regulatory schemes, or considering matters beyond the ambit of the Commissions authority under the bylaw. See Plaintiffs Brief, pp. 35-38. It is the plaintiffs position that these bases are in excess of authority. See, e.g., Plaintiffs Brief, p. 35 (arguing application for a U.S. Army Corps of Engineers Programmatic General Permit is a separate process from the [Commissions] review under a Notice of Intent). While this court has dispensed with some of these bases in the previous analysis, in applying the doctrine of primary jurisdiction, a few remain.
Just as a bylaw must bear a rational nexus to wetlands protection to be held valid, and not arbitrary and capricious, see The Southern New England Conference Assoc. of Seventh-Day Adventists, 21 Mass. App. Ct. at 710 (opining wetlands . . . bylaw will be held valid if there is a substantial relation between it and the furtherance of any of the objectives of wetlands protection), this principle of review is applicable to Commission action pursuant to the bylaw. If the Commission requires information, that requirement must bear a rational relationship to express provisions of the bylaw empowering it to so act. See Fafard, 41 Mass. App. Ct. at 572 (holding there must be a rational relation between its decision and the purpose of the regulations it is charged with enforcing); T. D. J. Dev. Corp., 36 Mass. App. Ct. at 129 (upholding imposition of condition as within the reasonable range of the Commissions authority to regulate activity in the buffer zone as provided by wetlands bylaw).
Accordingly, in general, this court finds no legal dissonance where the Commission requires submissions that other administrative bodies require in their corresponding regulatory schemes, as long as those filings rationally relate to its duty under the bylaw, and the Commission does not usurp that other agencys authority under their corresponding frameworks.
In other words, the mere fact that a document is related to another regulatory scheme does not in itself render the Commissions request arbitrary and capricious or in excess of authority.
Consequently, this court concludes that the Commissions requirements that plaintiff obtain authorization from the NPDES and U.S. Army Corps of Engineers under those agencies permitting processes, prior to granting a permit under the bylaw is neither arbitrary nor capricious nor in excess of authority. First, they bear a rational relationship to the bylaw. Both relate to expressly protected interests under the bylaw, the former to storm water pollution prevention and the latter to flood control. See R. 685, § 138-1(A). Moreover, in neither case did the Commission intend to take authority from those agencies; rather, it required those agencies to approve the project prior to considering it under the bylaw, presumably to husband scarce municipal resources. Invocation of those bases, therefore, was not in excess of authority, arbitrary or capricious.
The same principle holds true when considering overlapping jurisdiction. That the Planning Board may consider who will bear the cost of a storm water management system, or that a board of health may examine the sufficiency of a septic system will not impede a Conservation Commission from evaluating those issues pursuant to its mandate under a wetlands bylaw. As was true of the previous two bases, both of these substantially relate to wetlands interests, the former to erosion and sedimentation control, as well as flood control and storm damage prevention, see id.; and the latter to a specific provision in the regulations. See R. 691-692, § 150-2(D). [Note 225]
Moreover, in neither instance did the Commission seek to usurp the independent authority of another entity. Rather, it sought to determine who would be responsible for certain maintenance and repair functions, inasmuch as the town itself lacked the necessary resources. See supra, § II.C.iii.c. As to the septic system, the Commission did not impose conditions on the design of the system; such action would have contravened its own regulation. On the contrary, the Commission questioned the location and legal authority and procedures for maintenance and repairs. R. 15. As such, these bases for denial were neither in excess of authority, nor arbitrary and capricious.
D. Defective Written Decision
Plaintiffs final argument on appeal is that the Commissions decision was fatally flawed for failing to specify the bylaw provision or regulations relied upon in reaching that determination. See Plaintiffs Brief, pp. 38-40. Plaintiff cites to Oyster Creek Preservation, Inc. v. Conservation Commn. of Harwich, an unpublished order and memorandum pursuant to the Appeals Courts Rule 1:28, in support of this contention. Id., pp. 39-40. That decision has since been superseded by the Supreme Judicial Courts decision of the same name. See Oyster Creek, supra. In dicta, however, the Court, echoed the concerns raised by the Appeals Court:
[W]e do agree with the Appeal Courts concern about the Commissions vague and general reference to the town bylaw, and that courts observation that if a town conservation Commission simply refers to a bylaw without providing any indication that it actually relied on it or how it did so, any comparison of the statute and bylaw to determine which is more protective is rendered difficult or impossible. A towns bylaw may contain some exceptionally protective provisions, and a Commissions general reference to the bylaw in its decision, without elaboration, would allow it to insulate the decision from scrutiny.
449 Mass. at 866 n. 12.
This court does not view the foregoing passage as requiring that a Conservation Commission cite with great particularity the provision of a local wetlands bylaw, every time it makes a decision thereunder.
Instead, this extract seeks to emphasize to municipal administrative bodies serving in a quasi-judicial capacity, that there exists a level of opaqueness at which a reviewing court cannot affirm. See Pollard, 73 Mass. App. Ct. at 350 (noting while [a court] can conduct a meaningful review of a decision of less than ideal clarity if the agencys path may reasonably be discerned, we will not supply a reasoned basis for the agencys actions that the agency itself has not given), quoting Costello v. Department of Pub. Util., 391 Mass. 527 , 535-536 (1984), quoting from Bowman Transp., Inc. v. Arkansas-Best Freight Sys., 419 U.S. 281, 285-286 (1974); Fogelman, 15 Mass. App. Ct. at 589 (opining [i]nterstices are filled in routinely, lines drawn, and simple ambiguities resolved; but where the core concept is indecipherable the court will not supply one of its own creation), citing Commonwealth v. Gagnon, 387 Mass. 567 , S. C., 387 Mass. 768 (1982). Accordingly, a reviewing court will not identify an obscure provision of a local wetlands bylaw or regulation to provide post hoc justification for an otherwise legally untenable decision by a Conservation Commission. When, however, it is clear on the face of the decision which provisions of the bylaw and regulations the Commission relied upon in reaching its decision, this court will not set aside that disposition on the grounds that it failed to make formal citation to bylaw provision or regulations. As the above discussion amply indicates, the decision herein reviewed is sufficiently clear concerning the source of its legal authority to withstand this mode of attack.
According to this courts final tally, nineteen of the twenty-four bases upon which the Commission predicated its denial, have survived judicial review. Consequently, the decision of the Townsend Conservation Commission is hereby affirmed. See Lovequist, 379 Mass. at 19, n. 12.
For the foregoing reasons, it is
ORDERED that the Plaintiffs Motion for Judgment on the Pleadings be, and hereby is, DENIED. It is further
ORDERED that the Defendants Cross Motion for Judgment on the Pleadings be, and hereby is, ALLOWED.
Judgment to enter accordingly.
By the Court: (Grossman, J.)
Deborah J. Patterson, Recorder
Dated: April 21, 2009
[Note 1] G. L. c. 131, § 40.
[Note 2] U/d/t dated September 29, 2007 and recorded at the Middlesex South District Registry of Deeds (Registry) at Book 27741, Page 1.
[Note 3] Complaint, ¶ 10.
[Note 4] Record of Proceedings (R.), p. 20.
[Note 5] Id; Memorandum in Support of Plaintiffs Motion for Judgment on the Pleadings (Plaintiffs Brief), p. 12.
[Note 6] See R. 134.
[Note 7] See R. 626, § 3.3.
[Note 8] See id.
[Note 9] G. L. c. 131, § 40, the so-called Wetlands Protection Act (WPA).
[Note 10] R. 685-690, 691-699. It is only the decision issued pursuant to the bylaw and regulations that this court reviews today. The denial of an order of conditions under the WPA is the subject of an independent administrative appeal filed by plaintiff with the Massachusetts Department of Environmental Protection (DEP).
[Note 11] R. 17.
[Note 12] See R. 20.
[Note 13] R. 134. Detailed Design Plan (GR-1 to GR-5); Erosion Control Plan (EC-1); Brady Avenue Street Plan & Profile (PP1 to PP2); Seymour Way Street Plan & Profile (PP3 to PP4); Harrison Drive Street Plan & Profile (PP5), and Detail Sheet (DE-1 to DE-2). Id.
[Note 14] See id., GR-1 (depicting proposed Brady Avenue, connecting subdivision to Haynes Road, extending over wetland crossing #1); GR-2 (illustrating Brady Avenue crossing over wetland crossing #2, which provides a cul-de-sac access to the rest of the subdivision, as well as Proctor and Haynes Roads).
[Note 15] See id., GR-5 (describing Seymour Ways approach to Proctor Road). The boundary of Seymour Way as it intersects with Proctor Road appears to extend over a designated wetlands area. Id.
[Note 16] See id., DE-1.
[Note 17] See R. 649-676. August 23, 2006; September 27, 2006; October 11, 2006; November 8, 2006; December 13, 2006; January 24, 2007; February 28, 2007; March 28, 2007; and April 25, 2007. Id.
[Note 18] See R. 649.
[Note 19] See R. 649. As discussed, infra, the use of this superseding order to delineate the area wetlands was a point of contention at the hearing. The Commission chairperson, Karen Chapman, informed Lobo that plaintiff never appealed the Commissions determination, under the bylaw, with regard to the stream below an area impoundment, i.e., that it was perennial, despite the DEPs conclusion that the same was intermittent under said superseding order. R. 650. See also Warcewicz v. Department of Environmental Protection, 410 Mass. 548 ,551 (1991) (defining [a]n impoundment [as] a body of water formed by impounding (as by a dam) [and] [t]o impound [as] to collect (water) for irrigation, hydroelectric use, flood control, or similar purpose: confine and store (water) in an impound), quoting Websters Third New International Dictionary 1136 (1966). Chapman also questioned the superseding nature of the DEPs order, as the Commission did not make its determination solely under the WPA. R. 650.
[Note 20] See Record, pp. 649-650.
[Note 21] See Record, p. 650. For example, plaintiffs plans contemplate construction of detention basins to minimize siltation, designed for a 100-year storm event, and the employment of erosion controls, such as hay bales and silt fences. Id.
[Note 22] Julie Ward of Proctor Road noted that her property was only sixty feet from the river and that the applicant proposes to build a road between her house and the river. Further, she questioned whether one of the proposed detention basins would drain into her yard. R. 650. She observed that instead of building a house on her lot, DeCarolis could have used that lot for access to his back property. Id. Commission Member Michele Cannon, responded that she had made DeCarolis aware that he was potentially cutting off his last access, prior to his construction of three houses on a common driveway off Proctor Road to the south of Ms. Wards property. Id.
John Gomes, who resides at 32 Proctor Road, offered his own experiences concerning the significant erosion problems that befell his property during the construction of the aforementioned three houses on the common driveway behind his house. Id. Gomes supplied a letter, memorializing these concerns, and photographs to corroborate his testimony to both the Commission and Lobo. Id. See id., p. 636- 639. The letter was ostensibly signed by 18 abutters. Id., p. 636. The photographs, see id., p. 637- 638, indicate flooding allegedly caused to Gomess property by plaintiffs prior development of a nearby Approval Not Required subdivision. See also id., 639 (supplying Gomess note accompanying and explaining photographs).
Jeff Whelan inquired about the effect of having the Squannassit River ACEC extending into the territory of the proposed project. R. 650. Commission member Cannon informed Whelan that the designation mandates local stewardship of the ACEC. Id.
[Note 23] R. 650.
[Note 24] Id.
[Note 25] Id.
[Note 26] R. 651.
[Note 27] R. 652. The parties inspected the locus of the two proposed wetlands crossings, and toured the property to find acceptable locations for wetlands replication. Id. Plaintiff had staked the locations of the proposed roadways; nonetheless, many flags were missing. Id. At the walk through, Strickland both assured the Commission that, upon coming to consensus as to where the replication areas should be located, they will be denoted on revised plans, and that plaintiffs surveyors would place the missing flags. Id.
[Note 28] I.e., it would be perched.
[Note 29] Id.
[Note 30] R. 652.
[Note 31] Id.
[Note 32] Id. The project, as proposed, contemplated a six percent grade for the road at that intersection. R. 652-653. Commission member Stanley Vladyka suggested that plaintiff ensure that such a grade is compliant with the Townsend Highway Department bylaws. R. 653.
[Note 33] See R. 653-654. Ms. Ward conjectured that water would drain onto her property, because of its proximity to the Proctor Street Entrance. Id., p. 653. Member Vladyka assuaged this concern by reference to the relative topography of her property in relation to the proposed development and plaintiffs inclusion of a retaining wall at locus. Id. Ward also expressed concern about the proximity of her well to the proposed road, to which chairperson Chapman responded that the administrative process is designed to compile information pertaining to a projects effect on public and private water supplies. Id. Thus, this concern should be addressed by the end of that process. Id.
Mr. Birille of Meadow Road inquired as to the storm water management systems being employed in light of his personal experiences with the high volume of storm water occasioned by the previous years weather. Id. Strickland assured Birille that the system was designed to withstand a 100 year storm event. Id. Birille also raised the issue of endangered species to which Chairperson Chapman responded that the Natural Heritage and Endangered Species Program (NHESP) had yet to document the presence of such species at locus. Id. Further, Member Cannon informed Birille that the aforementioned wildlife habitat evaluation, the guidelines for which are set by the state, would alert the Commission and, perhaps eventually, the DEP to any issues concerning endangered species. Id.
Finally, Member Jennifer Pettit encouraged abutters to file a report with the NHESP in the event that any endangered species are observed.
Mr. Gomes reiterated many of the concerns he raised at the previous hearing relating to plaintiffs previous development activities and stressed the need for adequate erosion and sedimentation mitigation measures. Id.
Ms. Messing of Proctor Road doubted the accuracy of plaintiffs specific details as presented in his plan, concerning centerlines, requisite distances, and road widths. Id. She also expressed concern as to the state of the dam upstream from plaintiffs property. R. 654.
[Note 34] Held on September 27, 2006. R. 655
[Note 35] With an alternate date of October 14, 2006. Id.
[Note 36] Apparently, assuming the favored date for the site visit were actualized.
[Note 37] The minutes indicate that plaintiff did not contest the accuracy of these characterizations. See R. 657-659.
[Note 38] R. 657.
[Note 39] Id.
[Note 40] Id.
[Note 41] Id.
[Note 42] R. 658.
[Note 43] Id.
[Note 44] Id.
[Note 45] Id.
[Note 46] R. 658. Mr. Whelan posed the questions. Id.
[Note 47] Id.
[Note 48] Id.
[Note 49] Id.
[Note 50] R. 658.
[Note 51] Id.
[Note 52] Id.
[Note 53] Id.
[Note 54] See, e.g. Healer v. Conservation Commn. of Falmouth, Appeals Court Docket No. 04-P-387, Memorandum and Order Pursuant to Rule 1:28, 2005 WL 1330979 (June 6, 2005), at *1 n. 4 (reciting definition of vernal pool under Falmouth Wetlands Regulation). Under that regulation, [a] vernal pool is defined as a confined basin depression which, at least in most years, holds water for a minimum of two continuous months during the spring and/or summer, and which are free of adult fish populations. These areas are essential breeding habitat, and provide other extremely important wildlife habitat functions during non-breeding season as well, for a variety of amphibian species such as . . . the spotted salamander (Ambystomamaculatum), and are important habitat for other wildlife species. Id., quoting Town of Falmouth Wetlands Regulations § 10.58(2)(a)(1998).
[Note 55] R. 658.
[Note 56] Id.
[Note 57] See R. 659. Strickland characterized some items as having been discussed, (1), (2), and (6), implying that they were still not resolved. Id. As to others, he suggested that work still needed to be undertaken: items (3), (4), (7), (8), and (13). Id. As to three items, (10 through 12), he was silent. Id. He referred to item (9) as an administrative error. Id. Finally, he considered item (5) as an issue that could only be determined by the Townsend Planning Board (Planning Board). Id.
[Note 58] R. 659.
[Note 59] R. 659. Cannon suggested that perhaps the Commission should hire an outside environmental consultant to evaluate this aspect of plaintiffs proposed development. Id. She also commented that the Commission typically would not allow such disturbance to the buffer zone. Id.
[Note 60] R. 659.
[Note 61] Id.
[Note 62] Id.
[Note 63] R. 659. The minutes of this hearing erroneously refer to the date to which this matter was continued as November 8, 2007. Id.
[Note 64] R. 660. See R. 184-193 (reproducing said letter).
[Note 65] See R. 184.
[Note 66] R. 184.
[Note 67] Id.
[Note 68] Id.
[Note 69] This assertion does not properly engage with the concerns raised by the Commission supra. There is a broad range of what adjacency can mean, particularly when buffer zones are necessarily implicated.
[Note 70] R. 185.
[Note 71] R. 185.
[Note 72] Id.
[Note 73] R. 184.
[Note 74] Id.
[Note 75] Id.
[Note 76] R. 184-185.
[Note 77] R. 185.
[Note 78] Id. According to the letter, it is the plaintiffs position that the wetlands area at issue before the Commission does not constitute an Outstanding Resource Water, which under state law would require a 401 Water Quality Certification. Id. Instead, plaintiff contends that his project consists merely of a wetland filling for a Real Estate Subdivision that requires either such certification or the deed restrictions referred to above. Id.
[Note 79] Id.
[Note 80] R. 185. Plaintiff, however, alleges that he forwarded soil testing results for the area of the proposed common subsurface sewage disposal system. Id.
[Note 81] R. 186.
[Note 82] R. 187.
[Note 83] R. 189-193.
[Note 84] R. 661.
[Note 85] Id.
[Note 86] Id.
[Note 87] Id.
[Note 88] Id.
[Note 89] R. 661.
[Note 90] Id
[Note 91] Id.
[Note 92] Id.
[Note 93] R. 661.
[Note 94] Id.
[Note 95] R. 662. Strickland responded that he would broach the subject with plaintiff, but was unsure of how he would want to proceed in that regard. Id.
[Note 96] Strickland suggested that this detail would not be provided until the topographical issues were resolved. R. 662.
[Note 97] Plaintiff had yet to evaluate the impact of such catch basins upon the wetlands system.
[Note 98] R. 662.
[Note 99] R. 662. Ms. Ward was concerned with the potential for well contamination, and with the use of an estimated centerline at the Proctor Road entrance, i.e. that the plaintiff was propounding inaccurate information when characterizing that segment of the development. Id. Both Ms. Ward and Ms. Messing raised the issue of property lines, and suggested that perhaps plaintiff should survey the boundary lines of his proposed subdivision. Id. Ms. Messing alone suggested that the retention wall at the Proctor Road entrance would need footings.
[Note 100] R. 662.
[Note 101] See R. 175-183. The letter was dated October 27, 2006, and was signed by Holmberg & Howe, Inc. (H & H), Director of Engineering Jeffrey Rider. Id., pp. 175 & 183.
[Note 102] The letter suggests that greater anti-erosion measures may be warranted. R. 177. It also advises that proposed retaining walls should be moved outside of the right of way of the proposed road, so that the town would not be liable for their maintenance. Id. It further contends that the board should condition approval upon the plaintiffs hiring an outside structural engineer to review the soil testing for the land in which the bridge footings would be imbedded and the design of the bridges. Id. It recites that plaintiff has not yet addressed final disposition of the proposed open spaces, and depending on such disposition, the certain drainage easement requirements may be required to allow for maintenance of the storm water drainage system. R. 178 & 183. It broaches the matter of the projects partial presence within an Aquifer Protection Overlay District, requiring plaintiff to submit data concerning the localized impact of nitrogen and water mounding within the soil caused by the communal septic system. R. 178. It states that the property sits within an ACEC however, it is not within 300 feet of the river bank and not therefore subject to certain relevant provisions thereof . Id. It urges the board to insist that plaintiff extend the stated period in which he would remain liable for erosion/sedimentation control systems to the time at which the lots are sold, instead of merely to the end of the construction. R. 180. It notes that plaintiff, in his submissions, had failed to address the issues of maintenance methods, and liability of and costs to the town concerning the storm water management system. R. 181. It criticizes the plaintiffs submissions for failing to detail where the reported soil samples were taken from in relation to the storm water management system. R. 182. It also expresses concern with regard to storm drains at the end of Seymour Way draining directly into nearby wetlands, and whether this design would translate into an increase in the volume of runoff flowing into the wetlands. Id. It advises that the Commission require plaintiff to install additional catch basins at the back of the Brady Avenue cul-de-sac because of the large amount of runoff projected at that location. Id.
[Note 103] R. 663. See R. 196-214 (reproducing said letter).
[Note 104] R. 196, citing In the Matter of Charles and Jane Colburn, Final Decision, DEP Docket No. 98-067, June 9, 1999. See also Colburn v. Department of Environmental Protection, Mass. App. Ct. Docket No. 01-P-625, Memorandum and Order Pursuant to Rule 1:28, 2003 WL 102883 (Jan. 10, 2003) (affirming DEP decision).
[Note 105] R. 196. At that time, and ostensibly because of the cited DEP decision, plaintiff intended to treat the wetlands area as an intermittent stream, despite the Commissions opinion to the contrary. See R. 663.
[Note 106] R. 663.
[Note 107] Id.
[Note 108] R. 664.
[Note 109] Id.
[Note 110] Id.
[Note 111] See supra.
[Note 112] R. 664. With respect to the second crossing, over the proposed Brady Avenue, DeCarolis argued that, because the sixteen foot span proposed would cause only minimal disturbance to the wetlands, there was no practical need to so relocate that crossing. Id. With respect to relocating Seymour Way, plaintiff decided to leave that Way as it was depicted on submitted plans, because wetlands bound the Way on both sides, and the topography of its current location was preferable to the area to which it would be relocated. Id.
[Note 113] R. 664. The Commission granted this request and sent a letter addressed to Strickland, dated January 22, 2007 and signed by Chairperson Chapman. See R. 215-217. The memorandum included a statement to the effect that, while the enclosed summary was intended to cover all outstanding issues, it was not meant to be an exclusive expression of the Commissions concerns. R. 215. It set forth the Commissions concerns, totaling thirty-four in all, in six basic categories: storm water, stream status, Squannassit ACEC, NHESP, miscellaneous, and administrative. See R. 215-217. The issues cited by the letter mirrored those expressed at hearings, although some had greater detail. See, e.g., R. 215, ¶ 1 (suggesting plan contemplates diversion of too much runoff away from wetlands threatening wetlands loss occasioned by this deprivation of water supply); ¶ 2 (questioning whether storm water management system capable of preventing excessive runoff in other areas leading to bank erosion and siltation of the stream).
[Note 114] Id.
[Note 115] R. 664.
[Note 116] R. 665.
[Note 117] See R. 664-665. Ms. Ward recited four concerns: 1) how Strickland could guarantee that the Planning Board would approve development of twenty-seven lots; 2) she observed wetlands flags tied to submerged vegetation; 3) she noted that the surveyors remained at the Proctor Road entrance for only an hour and did not utilize any equipment; and 4), despite Stricklands assurances, there were no stakes delineating her property line. R. 664. She also drew the Commissions attention to the fact that DeCarolis had built her house on the last parcel that could have afforded his subdivision direct access to Proctor and Haynes Roads, obviating the need to disturb protected wetlands. R. 665.
Ms. Melissa Finn of Haynes Road observed that three streams feed into a beaver bond to the north. Id. Mr. Whelan commented that he never seen the subject stream dry. Id. Ms. Messing suggested that the stream bed would need to be dug up in order to plant footings therein, which is in turn necessary to properly support a retaining wall at the edge of the stream. Id.
[Note 118] See R. 666.
[Note 119] See R. 667
[Note 120] Id.
[Note 121] Id.
[Note 122] R. 668.
[Note 123] R. 669.
[Note 124] Id.
[Note 125] R. 669. Brian and Melissa Finn of Haynes Road recounted ongoing efforts to maintain a beaver dam on their property, which has produced a beaver pond also on their land. Id. They suggested that public access to the beaver pond would equate with public access to their own private property. Id.
Ms. Ward observed that there are wet areas behind her house, i.e. potential vernal pools, and expressed concern that perhaps the subdivision road and houses were too close to those areas. Id. She inquired why plaintiff only proposed individual septic systems for five lots, and a communal septic system for the rest, when considering the quality of the soil, which proved to be better than initially thought. Id. Strickland agreed to inquire of plaintiff as to this concern. Id.
Ms. Messing was concerned with the discharge pipe of a pumping station extending over the first wetland crossing, and who would be liable in the event that the main were to freeze and fail. R. 669. She also criticized the proximity of Lot 25 to the wetland and vegetated buffer zone. Id.
[Note 126] R. 669.
[Note 127] Id.
[Note 128] Id.
[Note 129] See note 101.
[Note 130] See R. 218-221.
[Note 131] R. 220, 19.
[Note 132] R. 221, 39.
[Note 133] R. 671.
[Note 134] See R. 676 (reproducing Commissions vote to deny plaintiffs permit and OOC).
[Note 135] Compare R. 673-674 with R. 668.
[Note 136] R. 673-674.
[Note 137] R. 674.
[Note 138] Id.
[Note 139] Id.
[Note 140] R. 674.
[Note 141] Id.
[Note 142] Id.
[Note 143] Id.
[Note 144] Id.
[Note 145] R. 674.
[Note 146] Id.
[Note 147] Id.
[Note 148] Id.
[Note 149] R. 674.
[Note 150] Id.
[Note 151] R. 675.
[Note 152] R. 674.
[Note 153] Id.
[Note 154] Id.
[Note 155] Id.
[Note 156] R. 675.
[Note 157] Id.
[Note 158] Id.
[Note 159] R. 675. Ms. Ward inquired whether plaintiff intended to submit a wildlife habitat assessment. Id. She also reiterated her opinion that the centerline of the Proctor Road entrance was in error. Id. She advised too that several private septic companies had informally indicated that they would not take a job that would entail responsibility for maintenance of a communal septic system situated as that proposed by plaintiff, i.e. owing to potential liability for contamination. Id.
Mr. Whelan submitted photographs depicting the level of rain on his property caused by the recent, April 15, 2007, storm. Id.
Ms. Messing observed that, per plaintiffs plans, the septic system would be pumped and not gravity fed. Id. She also inquired as to how the Commission would monitor the system and whether wetlands would become contaminated in the event it did not function properly. Id. Also concerning the septic system, Mr. Vladyka, an abutter who was once a member of the Commission, informed the parties that approval from the Board of Selectmen would be needed prior to laying down parts of a communal septic system under a municipal road. Id.
[Note 160] R. 675.
[Note 161] Id.
[Note 162] R. 675.
[Note 163] R. 675-676.
[Note 164] R. 676. The Commission also voted four to one with one abstention to deny relief under the WPA. Id.
[Note 165] National Pollutant Discharge Elimination System Environmental Notification Form.
[Note 166] Massachusetts Endangered Species Act.
[Note 167] See Plaintiffs Brief, pp. 29-31.
[Note 168] See id., pp. 26.
[Note 169] See id., pp. 26-28.
[Note 170] See id., pp. 31-38.
[Note 171] See id.
[Note 172] See Plaintiffs Brief, pp. 38-40.
[Note 173] In Fieldstone, the Andover Conservation Commission employed a policy providing for a twenty- five foot no-build zone that was not adopted as a regulation. 62 Mass. App. Ct. at 266. There, the Appeals Court held that a no-build zone policy not lawfully adopted as a regulation, and containing no requirement of uniform application, cannot form the basis of the Commissions denial in this case. Id. at 268. As discussed in the text, here, the relevant policy was adequately codified within the Commissions regulations so as to render Fieldstone inapplicable.
[Note 174] See Plaintiffs Brief, p. 29 (observing only mention of a 35-foot requirement is located in the Regulations at § 150-2(K)(7)).
[Note 175] In § 138-5, the bylaw expressly authorizes the Commission to promulgate regulations. R. 687.
[Note 176] In Fafard, the Reading Conservation Commission adopted a regulation as per its authority under the bylaw to deny protection for any activity that is likely to remove, dredge, fill or alter subject lands within the Town. 41 Mass. App. Ct. at 569, quoting the Town of Reading Wetlands Bylaw, § 5.7.8 (internal quotations omitted) (emphasis supplied by Appeals Court). That regulation, captioned Buffer Zone Protection, states:
Bordering any wetland, the [c]omission may require a zone of natural vegetation of sufficient width to assure that silt, soil, fertilizer in solution, organic chemicals, herbicides, organic manures, oils or petroleum products which may be carried by surface runoff, shall not reach the wetland, but instead will be trapped by the natural mulch, soil and roots. Under most conditions, a zone width of 25 feet would be considered sufficient to accomplish this purpose. Id. In denying the applicants NOI, the commission cited the following concern: [t]he project as proposed will cause degradation of the buffer zone in violation of the interests of the wetlands protection regulations, despite its recognition that the project involved no activity in any resource area and that the work could be conditioned to protect the interests of the subject land, the wetland. Id. at 567, 569-570 (internal quotations omitted).
The Appeals Court vacated the commissions denial, because the Commission [did] not descend to any particulars as to why construction outside the zone of natural vegetation will inevitably cause degradation (the commissions word) in the zone, [and] there is nothing in the bylaws (or the regulations) that authorizes the Commission to withhold an order of conditions because of injury to the zone of natural vegetation, which is established precisely to act as a buffer (in the language of the regulation) between the area of allowable construction and the wetland. Id. at 570 (emphasis supplied). The case at bar is so factually distinguishable from Fafard in this regard as to render that holding inapposite.
Here, the Commissions duly promulgated regulation provides for a thirty-five foot vegetated buffer zone, and plaintiff intends to build within that zone. See Plaintiffs Brief, p. 30 (representing total area that the Plaintiff is proposing to disturb within 35 feet of the wetlands at Proctor Road is only 2,411± square feet), citing R. 134, sh. GR-5.
[Note 177] Plaintiff alleges in the relevant subsection of his brief that he complied with the Regulation, a proposition that undercuts the cogency and coherence of his argument concerning this reason for denial. Plaintiffs Brief, p. 30. See in this regard R. 134, sh. GR-5 depicting a roadway extending over an area designated as a vegetated buffer zone. In fact, the plaintiff admits that 2,411± square feet of land area disturbance within the controversial zone is contemplated by his plans, at the Proctor Road entrance. Plaintiffs Brief, p. 26.
[Note 178] Plaintiffs agent, Charles Strickland, did represent at the fifth hearing that the edge of Seymour Way would be approximately the width of a hay bale away from the stream. R. 16. The Commission was free to disregard this statement in light of the plans contrary depiction of the same. See Pollard, 73 Mass. App. Ct. at 350 n. 10 (opining [a]n agency may justifiably reject an experts opinion on the basis of facts in the record that make the rejection of the expert evidence reasonable). In any event, this statement does not preclude that boundary from sitting upon the stream bank.
[Note 179] As this decisions summary of the administrative proceedings show, this issue, concerning the Proctor Road entrance, remained a matter of discussion throughout the hearings.
[Note 180] Notably, plaintiff does not contest his failure to provide a construction narrative as to this part of his proposed development. Further, although as noted above plaintiff submitted a construction schedule, see R. 189-193, a reading of this submission shows that it does not provide the level of specificity the Commission sought.
[Note 181] This conclusion is based upon the logical assumption that nearby construction, even if not conducted within protected areas, could cause damage within the those areas, if not properly planned. The Commissions request for additional information embodies this reasonable concern, and intends to safeguard wetlands areas from temporary disturbance caused by inadequately planned construction.
[Note 182] See R. 134, sh. GR-1 (depicting a drainage basin due north of Wetland Crossing #1); sh. GR-2 (showing drainage basin due south of Wetland Crossing #1 and another near the Proctor Road entrance); sh. GR-3 (illustrating drainage basin near Seymour Way cul-de-sac).
[Note 183] See R. 628. This plan illustrates those facilities to which storm water will be diverted in different areas of the development. However, it neither speaks to the capacity of each facility, nor to the amount of water, in toto, that will be directed to the wetlands. Further, it neither delineates vernal pools, nor does it indicate that those wetlands areas would get any water.
[Note 184] As recounted above, at the fourth hearing, Member Cannon noted that as proposed, a drainage swale north of Seymour way drains directly into wetlands. R. 658. At the fifth hearing, she also inquired as to the difference between pre- and post-construction runoff concerning wetlands immediately adjacent to Brady Avenue, as storm water runoff would drain directly into those wetlands under to plaintiffs proposal. R. 661. Plaintiff eventually sought to address this concern by eliminating Lot 6, placing another detention basin on that parcel, and enlarging the planned basin along Brady Avenue. R. 673- 674. Also at the fifth hearing, Strickland referred to the catch basins at the Proctor Road entrance as an outstanding issue identified by the Commission, because as then configured they drain directly into the stream intersecting that location.. R. 662. At the sixth hearing, Vice Chairman Stonefield was concerned with the capacity of those same catch basins. R. 664. In his revised plan, presented at the last hearing, the detention basin off Seymour Way was expanded, perhaps in response to this concern. R. 674.
[Note 185] See, e.g. R. 664 (reproducing Vice Chairman Stonefields expression of concern respecting this issue at the sixth hearing); p. 674 (same, except at the tenth hearing). In fact, at the last meeting, Chairperson Chapman stated explicitly that she could not approve the project without a condition shifting the burden of maintaining the system from the town to another entity. Id.
[Note 186] See R. 181; 220, 19.
[Note 187] See R. 626, § 6.1 (stating, generally without explanation and without any commitment to impose corresponding real covenants upon deeds out of the subdivision, [m]aintenance is the responsibility of the property owner). This segment of the section captioned OPERATION AND MAINTENANCE PROCEDURES continues by stating, this [responsibility] is true whether the property owner is an individual where the land is private property or where the land is public with the responsibility assigned to that municipality. Id.
[Note 188] See R. 652 (reproducing third hearing proceedings in which it was recounted that the Commission expressed concern from the field about the absence of a construction narrative as to the first wetlands crossing); p. 652 (recounting Commission request for information relative to temporary bank disturbance); p. 652 (describing Chairperson Chapmans request for a construction narrative as to the Proctor Road entrance); p. 659 (indicating Strickland made commitment to provide construction narratives to Commission). See also R. 217 (requesting, in letter summarizing outstanding concerns, information concerning temporary bank disturbance at wetlands crossings).
[Note 189] But see R. 134, sh. DE-1 (depicting the slab footings that will moor the culverts to the bank soil); p. 177 (reproducing letter in which H & H advised the Planning Board to condition approval upon the plaintiffs hiring an outside structural engineer to review the soil testing for the land in which the bridge footings would be imbedded). Thus, beyond the filling of wetlands conceded by plaintiff, the footings being imbedded might also cause permanent disturbance to the bank areas.
[Note 190] As observed supra, note 180, the plaintiff submitted a construction schedule, but, also as discussed in that note, that schedule is utterly devoid of the specific detail requested by the Commission.
[Note 191] In fact, this drawing, as the caption would suggest, is highly generalized in its depiction of a typical crossing. R. 134, sh. DE-1. But see R. 134, sh. PP-1, PP-2, PP-3, PP-4, PP-5. These sheets supply a detailed, profile depiction of the proposed roadways. Id.
[Note 192] See R. 652 (including this issue in the Commissions list of concerns having conducted its first site visit). See also R. 216 (including same in Commission summation of outstanding issues nearly five months later).
[Note 193] See supra, note 191 (noting lack of detail on relevant sheet of plaintiffs plans). That same sheet also provides a birds eye depiction of the crossings. R. 134, sh. DE-1. Such a rendering, however, does little to explain how the difference in elevation between crossing and road will be reconciled.
[Note 194] See R. 184 (reproducing plaintiffs letter to Commission that represents amount of wetlands filling as 518± square feet and replication as 2,000± square feet).
[Note 195] See R. 217 (including a request for plans for the location(s), size and construction sequence for the area(s) in the Commissions list of outstanding issues).
[Note 196] Although plaintiffs plans designate the area for proposed wetlands replication in an area of 2,100± square feet, captioned WETLAND REPLICATION AREA, to the east of Brady Avenue near the intersection of Brady Avenue and Seymour Way, R. 134, sh. GR-2, the plaintiff still failed to provide sufficient information as to how he intended to conduct this replication, i.e. the requested construction sequence. Further, the Commission was free to require a more detailed pictorial treatment of the area than was provided by sheet GR-2.
[Note 197] Respecting the need for additional information concerning the maintenance and repair issue.
[Note 198] See R. 216, 217 (including this matter within Commissions enumeration of outstanding wetlands issues in letter addressed to plaintiff).
[Note 199] See R. 675 (recounting testimony of abutter to effect that she consulted with private septic companies who expressed these reservations). The Commission was permitted to credit this evidence in deciding that the issue of maintenance required fleshing out by the plaintiff prior to the issuance of a permit. See Paley v. Department of Envtl. Protection, Mass. App. Ct. Docket No. 05-P-285, Memorandum and Order Pursuant to Rule 1:28, 2006 WL 408254, *1, *3 (Feb. 22, 2006) (upholding Commissions right to deem relevant and giv[e] weight to [layperson] testimony in rendering decision).
[Note 200] A reference to the width of the wetlands including stream banks.
[Note 201] See R. 217 (including this issue in Commissions letter to plaintiff synopsizing its outstanding concern relative to proposed development). Significantly, plaintiffs first letter to the Commission, which was intended to address some of its enumerated concerns, represents that his agents were investigat[ing] stream flow measurements to verify that the crossing spans would be at least 1.2 times the bankfull widths. R. 185. This letter indicates that the plaintiff understood that he needed to supply more information concerning this matter than already provided, yet the record lacks any reference to the fruits of this investigation.
[Note 202] See R. 54-59 (reproducing SORAD as part of plaintiff NOI submission).
[Note 203] See, e.g. R. 652 (recounting that Commission raised the issue at first hearing); p. 661 (reproducing Commission position that SORAD not superseding with regard to perennial/intermittent status of wetlands)..
[Note 204] See R. 56 (providing SORAD dated November 21, 2003).
[Note 205] The reasonableness of this request finds further support from the record where abutters and Chairperson Chapman recounted the large volume of rainwater the area received in the recent past. See supra, note 21 (summarizing abutter concerns, including Mr. Gomess recitation of past problems with flooding caused by high volumes of rainwater and inadequate erosion control measures taken by plaintiff in another development); note 323 (recounting, inter alia, Mr. Birilles expression of concern relating to the adequacy of plaintiffs storm water management system in light of the high volume of rainwater he has experienced as an area home owner). See also R. 674 (providing minutes from last hearing in which Chairperson Chapman suggested that Proctor Road entrance would have been under water during recent rainstorm if it had already been constructed). Such volume could logically cause alterations to the wetlands and banks because of erosion and changed flow patterns.
[Note 206] See R. 661 (reproducing Clerk Johnsons request for such a letter at fifth hearing). See also R. 662 (recounting Stricklands review of Commissions articulated and outstanding concerns and including need for such a letter in that summary). This request was also later memorialized as Miscellaneous issue number 13 in the Commission letter, summarizing its remaining issues of concern with plaintiffs proposal. R. 217.
[Note 207] The Commission noted the absence of this information from the plaintiffs initial NOI filings at the first hearing. R. 650. Accordingly, it requested that the plaintiff complete such an assessment at the second hearing as part of the checklist of outstanding issues provided to the plaintiff. R. 652. Member Cannon raised the related issue of impact upon area wildlife occasioned by clearing the vegetated buffer zone at the Proctor Road entrance at the fourth hearing. R. 659. At the fifth hearing, Strickland acknowledged that plaintiff still had not provided such an evaluation in reviewing the Commissions outstanding concerns. R. 662. He also admitted as much at the sixth hearing. R. 664.
[Note 208] See, e.g. R. 216 (including the absence of such a certificate from plaintiffs filings as outstanding issue).
[Note 209] See, e.g. R. 216 (including a request for such a filing in Commissions synopsis of outstanding issues).
[Note 210] See R. 674 (reproducing Chairperson Chapmans statement to this effect at final hearing).
[Note 211] See, e.g. R. 675 (reproducing Ms. Messings testimony indicating that plaintiffs plan disregards a twelve foot esker at the Proctor Road entrance). To this particular criticism, plaintiffs own agent, Mr. Strickland, conceded that the plans were still inaccurate as presented at the hearing. Id.
[Note 212] See R. 134, sh. DE-1. This sheet indicates that only one of the two crossings will entail wetlands filling, and only 140± square feet at that location.
[Note 213] Moreover, Strickland suggested that more crossings were contemplated at the recreational area.
[Note 214] An argument this court will revisit infra at § II C. iii.
[Note 215] As well as substantial evidence challenges.
[Note 216] Or regulations promulgated thereunder.
[Note 217] It is axiomatic that to have subject matter jurisdiction under the certiorari statute the underlying administrative decision must not otherwise [be] reviewable by motion or appeal. G. L. c. 249, § 4. See Boston Edison Co. v. Bd. of Selectmen of Concord, 355 Mass. 79 , 83 (1968) (including a lack of all other reasonably adequate remedies as prong for test to determine whether certiorari action lies). Section 14 of c.30A of the General Laws provides the means for seeking judicial review of a final DEP decision under the WPA. See Pacheco, 49 Mass. App Ct. at 741 n. 4 (distinguishing procedural route for judicial review of local wetland decision on the one hand and DEP final orders on the other). Thus, a local decision that may be preempted by a DEP order, because it rests upon a provision of the local wetland bylaw or ordinance that is no more restrictive than the act, is ultimately reviewed under G.L. c. 30A, § 14, inherently disqualifying it from review under G. L. c. 249, § 4.
[Note 218] Compare the WPA, which includes the following protected wetlands interests:
. . . public or private water supply, . . . groundwater supply, . . . flood control, . . . storm damage prevention, . . . prevention of pollution, . . . protection of land containing shellfish, . . . protection of wildlife habitat, [and] protection of fisheries . . .
G. L. c. 131, § 40; with the bylaw, which seeks to protect the following wetlands interests:
. . . public or private water supply, groundwater, flood control, erosion control, sedimentation control, storm damage prevention, water pollution, fisheries, wildlife, recreation and aesthetics, other water damage prevention, protection of surrounding land, homes or buildings, and protection of streams, ponds, or other bodies of water. R. 685, § 138-1(A) (emphasis added).
[Note 219] In significant part, these holdings rested their determinations of greater stringency upon the addition of these interests. In the latest case, Hobbs Brook Farm, the Appeals Court states,
[a]s we have previously stated in T. D. J. Dev. Corp. v. Conservation Commn. of N. Andover, 36 Mass. App. Ct. 124 , 127 (1994), [b]y expanding the interests to be protected under the bylaw, the Commission may impose conditions which might not be permissible under the act. There, as in this case, erosion and sedimentation control were among the additional interests at issue.
Hobbs Brook Farm (HBF), however, directs us to 310 Code Mass. Regs. § 10.05(6)(b) (1997), which provides that the Order [of conditions] shall impose conditions to control erosion and sedimentation within resource areas and the Buffer Zone. HBF further identifies regulations that address erosion and sedimentation, but do so in furtherance of groundwater and surface water quality. These regulations, which provide more extensive treatment of erosion and sedimentation than the regulations in place when T. D. J. Dev.Corp. v. Conservation Commn. of N. Andover, supra, was decided, narrow the differences between the Commissions and the DEPs consideration of these elements.
Nonetheless, the town bylaw, in affording direct consideration of erosion and sedimentation control rather than the indirect consideration of erosion and control in furtherance of other wetlands values, offers somewhat greater protection, particularly where the Commission found that the project would further compromise the integrity of Hobbs Brooks banks beyond current conditions. Thus, erosion control in and of itself was a focal point of the Commissions decision. By directly regulating erosion control under the town bylaw, the Commission could consider erosion in making the threshold decision to approve or disapprove the project rather than simply impose conditions on it in an effort to control erosion to protect other wetland values. This distinction, at least when combined with other additional requirements, render the town bylaw more stringent than the act and related regulations.
65 Mass. App. Ct. at 150, citing T. D. J. Dev. Corp., 36 Mass. App. Ct. at 127-128.
[Note 220] Compare the WPA, which protects the following areas from remov[ing], fill[ing], dredg[ing], or alter[ing]:
. . . riverfront area, fresh water wetland, coastal wetland, beach, dune, flat, marsh, meadow or swamp bordering on the ocean or on any estuary, creak, river, stream, pond, or lake, or any land under said waters or any land subject to tidal action, coastal storm flowage, or flooding . . .
G. L. c. 131, § 40; with the bylaw, which protects the following areas from remov[ing], fill[ing], dredg[ing], build[ing] upon, degrad[ing], pollut[ing], discharg[ing] into, or otherwise alter[ing]: . . . banks, freshwater wetlands, marshes, bogs, wet meadows, swamps, creeks, rivers, streams, ponds, lakes, lands under water bodies, lands subject to flooding or inundation, vernal pools, isolated wetlands (collectively, resource areas) and lands within a buffer zone (as defined by § 138-7) of any resource area . . . R. 685, § 138-1(B) (emphasis supplied).
[Note 221] Inappositely, the plaintiff cites a DEP regulation that mandates that a Commission explain with specificity what information is lacking from the record whenever it decides to deny an order of conditions, under the WPA, on the basis of insufficient information. See Plaintiffs Brief, p. 28. This court, first, doubts that the Commission failed to provide the requisite amount of detail contemplated by that regulation, and, second and more importantly, this regulation is irrelevant to this action, which seeks review pursuant to G. L. c. 249, § 4, of the Commission decision under the local wetlands bylaw. The bylaw has its own terms and regulations concerning this ground for denial. See supra, § II.C.i.
[Note 222] Indeed, there is nothing illogical about the same information being needed under both regulatory frameworks to render corresponding decisions. The citing of a basis under one may not be to the exclusion of citing the same under the other.
[Note 223] As to the fifth storm water management issue recited above, concerning a NPDES ENF, plaintiff contends that this basis is in excess of authority, because it pertains to a requirement in a separate, national regulatory scheme. See Plaintiffs Brief, p. 34. This court will consider that argument below, § II.D.ii.
[Note 224] Wetlands crossing issue number one relates to temporary bank disturbance at the crossings occasioned by construction, see Record, p. 15, which implicates both the added interests of erosion and sedimentation control and the area of the buffer zone. Wetlands crossing issue number two concerns the elevation drawings for the crossings, see id., which relates to both areas of greater stringency: improper grading can cause erosion and sedimentation problems for the wetlands, and, depending on the elevation of the crossings, plaintiff may need to change the topography of land lying within the buffer zone to connect the crossings to the roads. Wetlands crossing issue number three presents essentially the same concerns as the last. The fourth wetlands crossing issue pertains to stream bank replication, see id., which logically will occur within the more heavily regulated buffer area under the bylaw. The fifth relates the septic system, which includes pipes that will cross the wetlands. See id. These pipes will undoubtedly pass through the more strictly regulated buffer zones, thereby authorizing the Commission to request more information under its autonomous decision making authority pursuant to the bylaw and regulations prior to granting a wetlands permit. The sixth issue concerns bridge span to bankfull width ratios, an issue focusing on maximizing dry wildlife ability to pass under the crossing. See R. 16. Once again, because this request relates to how the plaintiff will place the open bottom box culverts within the bylaws buffer zone, which is thereby expressly protected, this basis fits within the Commissions autonomous local authority. The eighth crossing issue, requiring a letter from the Army Corps of Engineers, see id., also concerns development within the more heavily regulated buffer zone.
The first three miscellaneous concerns, however, relate to areas of regulation in which the bylaw and regulations do not evince an intent to regulate more strictly than the act: wildlife habitat and the preservation of public and private water supply. See R. 16. As such, these bases do not arise from the Commissions autonomous decision making authority under the bylaw and, therefore, are presently unreviewable. Over these issues, the DEP retains jurisdiction.
The final four miscellaneous issues, nonetheless, either implicate the additional protected interests of the bylaw, or concern activity within the more highly regulated buffer zone of the bylaw, and are herein reviewable as such. The need for greater topographical detail with regard to the Proctor Road entrance is relevant both to erosion and sedimentation control and to regulating the buffer zone, as that entrance sits in that area. Given the plaintiff intends substantial development within the protected buffer zone, requiring the plaintiff to provide alternatives analysis is pertinent to determining whether to allow the plaintiff to engage in that activity or not. Asking about plaintiffs plans to fill the wetlands bears directly on sedimentation control, because the plaintiff would need to be able to explain how this filling would avoid or minimize sedimentation. The problems attendant with loss of tree canopy is one of the very reasons to protect the buffer zone individually in the first place; thus, this basis flows sufficiently from the Commissions autonomous authority under one of the more stringent than the WPA provisions of the bylaw.
[Note 225] That section states,
The Conservation Commission may not regulate the design of septic systems but may, under the Wetlands Bylaw, Town of Townsend, regulate construction details and location in order to protect wetland values. To minimize post-application redesigning and maximize efficiency in the project review and to minimize delay in the permitting process, it is recommended, where there is any question as to the delineation of the wetland where a septic system is concerned, that the applicant file with the Conservation Commission before requesting a permit from the Board of Health.
R. 691-692, § 151-1(D).