CREATIVE HOUSING COMPANY, INC. vs. TOWN OF BREWSTER and JANE WAGONER, JANE REMY, JANE SULLIVAN, H. R. OLFIELD, RICHARD G. STEVENS and SUSAN LINDQUIST.

In this case the plaintiff, Creative Housing Company, Inc. (hereinafter "CHC"), seeks review under G.L. c. 40A , §17 and G.L. c. 240, §14A of two decisions of the defendant Zoning Board of Appeals of the Town of Brewster, Massachusetts (hereinafter "Board of Appeals" or "the Board"). Initially, the Board of Appeals denied CHC's appeals from adverse decisions on CHC's applications for building permits, and also denied CHC's requests for special permits and variances, all with respect to two CHC-owned lots in Brewster. Upon the commencement of the instant action, the defendants, acknowledging that the decisions of the Board of Appeals were defective, moved the court to enter an interlocutory order remanding the case to the Board for further consideration. The court allowed the defendants' motion, following which the Board held a further hearing on the matter and again denied all relief requested by CHC. A trial was then held extending over two days at which a stenographer was appointed to take and transcribe the testimony. Fourteen exhibits were admitted into evidence and are incorporated herein for the purpose of any appeal. Based on all the evidence, and on certain stipulations entered into by the parties, I find and rule as follows:

1. The plaintiff Creative Housing Company, Inc. is the owner of lot 48 located on Lake Shore Drive in Brewster, Massachusetts (hereinafter "lot 48"), and is the owner of lot 95 on Crowell's Bog Road (formerly Crosby Neck Road) in Brewster, Massachusetts (hereinafter "lot 95").

2. Both lot 48 and lot 95 are located in a residential "R-L" zoning district under the Town of Brewster Zoning By-Law (hereinafter "the by-law"). The relevant by-law is that in effect as of October, 1984.

3. The construction and occupancy of a single family dwelling is allowed as a matter of right in an R-L zoning district pursuant to Section V. of the by-law.

4. Lot 48 and lot 95 have at all relevant times been separate parcels of land and are recognized as such in the records of the Town of Brewster. Lot 48 appears as "Lot 78" on Brewster Town Map 49. Lot 95 appears as "Lot 17" on Brewster Town Map 49.

5. On October 22, 1984, the Inspector of Buildings/Zoning Agent of the Town of Brewster (hereinafter "building inspector") visited lot 48 and lot 95. The building inspector dug one test hole on each lot, and made certain observations regarding soil make-up and water levels.

6. By a letter dated October 23, 1984, the building inspector advised CHC of his observations, and stated that he would have to deny any building permits to construct single family dwellings on lots 48 and 95 for the reasons detailed in the letter.

7. Neither lot 48 nor lot 95 appears in an area designated as a Wetlands Conservancy District under Section III. D. of the by-law on the map entitled "Map of the Wetlands Conservancy Districts in the Town of Brewster, Massachusetts" dated October 31, 1974. Said map only designates Wetlands Conservancy Districts three acres or more in area, and both lot 48 and lot 95 have areas less than three acres.

8. Section III. D. 1. a. of the Brewster zoning by-law lists the following soil types and soil associations as "Wetland Conservancy District soils": muck, peat, tidal marsh, coastal beach, cranberry bog, fresh water marsh, Deerfield, Au Gres, Scarboro, Ningret, Belgrade and Raynham.

9. The soil survey Field Sheets do not indicate the presence on either lot 48 or lot 95 of any soil types or soil associations listed as "Wetland Conservancy District soils" in Section III. D. 1. a. of the by-law, but rather list both as in an area designated "unclassified."

10. Section III. D. 1. a. of the by-law also references a report prepared for the Town of Brewster by the U. S. Department of Agriculture, Soil Conservation Service, which report contains descriptions of the "Wetland Conservancy District soils."

11. Lot 48 does not presently contain any of the soil types or soil associations listed as "Wetland Conservancy District soils" in Section III. D. 1. of the by-law.

12. Lot 48 was included in the Wetlands Conservancy District by the building inspector and the Board of Appeals on the basis of their determination that lot 48 was once a freshwater marsh that was filled in the early 1960's (Board of Appeals Decision 86-22, dated May 13, 1986).

13. On lot 95, the building inspector determined that there was a stratum of soil between 52 and 55 inches beneath the surface consisting of a mixture of peat and black sand. This is the only soil encountered on lot 95 by the building inspector which he determined to be a soil type or soil association listed as a "Wetland Conservancy District soil" in the by-law.

14. Lot 95 was included in the Wetlands Conservancy District by the building inspector and the Board of Appeals on the basis of their determination that the material found between 52 and 55 inches beneath the surface, which they determined to be a mixture of peat and black sand, was a soil type or soil association listed as a "Wetland Conservancy District soil" in the by-law, and also on the basis of their determination that lot 95 was once a cranberry bog that was filled in the early 1960's (Board of Appeals Decision 86-23, dated May 13, 1986).

15. The report prepared for Brewster by the U.S. Department of Agriculture, Soil Conservation Service describes "peat" in the following manner:

These are very poorly drained bog soils formed in organic deposits which are underlain by mineral soil material. Peat soils have dark reddish colors and the plant remains can be identified by the unaided eye. These soils are mostly woody peat with some spagnum peat areas. They occur in depressions and potholes in which the water table is at or near the surface most of the year. Some of the soils have 1 to 3 feet of organic matter over mineral soil material but most of them have many feet of organic material.

16. The word "soil", as employed in both the Brewster zoning by-law and the Soil Conservation Service report, is a term of art referring to the upper layer of the earth's crust beginning at the surface and extending down to a depth at which soil-forming factors cease to operate.

17. Soils may consist of distinct layers or "horizons" of material, which, when appearing together in certain recognized configurations, constitute a particular soil "type". "Peat" is one such soil type, although the word may also be used to describe organic material which, taken alone, is not itself "soil." "Soil association" is a broader unit of classification comprising two or more soil types that share similar characteristics, yet which nevertheless are distinct.

The court's task in this case is to determine whether the Board of Appea's exceeded its authority in denying CHC's appeals from adverse decisions of the building inspector and from the Board's own denial of CHC's applications for special permits and variances, all with respect to lots 48 and 95. To make this determination, we first must look to the relevant sections of the Brewster zoning by-law. Section III. of the by-law is entitled "Establishment of Zoning Districts," and paragraph D. of Section III. is entitled "Wetlands Conservancy District." Following a brief preamble which sets forth the purposes of a Wetlands Conservancy District, paragraph D. continues as follows:

1. Locations and boundaries.

a. Wetland Conservancy Districts soils shall include the following soil types and soil associations: Muck, peat, tidal marsh, coastal beach, cranberry bog, freshwater marsh, Deerfield, Au Gres, Scarboro, Ningret, Belgrade and Raynham. Soil descriptions and their [sic] interpretation of land uses will be found in the report prepared for the Town of Brewster by the United States Department of Agriculture Soil Conservation Service.

b. The locations and boundaries of the Wetlands Conservancy Districts shall be shown by an overlay map entitled, "Map of the Wetlands Conservancy Districts in the Town of Brewster, Massachusetts", dated October 31, 1974 filed with the Town Clerk, and hereby made a part of this By-Law. Detailed soil survey Field Sheets on file with the Town Clerk shall be used, if necessary, to determine boundaries with respect to any given parcel.

c. Any parcels or portions of land too small to show on this map but containing soil types and associations as described in a. above shall be subject to this By-Law.

Lots 48 and 95, each being less than three acres in area, are not shown on the map of Wetlands Conservancy Districts. To be considered a Wetlands Conservancy District, therefore, each parcel must contain at least one of the soil types or soil associations listed in Section III. D. 1. a. of the by-law. For descriptions of these soil types and associations, the by-law references a report prepared for Brewster by the U.S. Department of Agriculture, Soil Conservation Service.

Taking the subject parcels one at a time, the parties have stipulated, and I have found, that lot 48 does not presently contain any of the soil types or soil associations listed in Section III. D. 1. a. of the by-law. Rather, the defendants ground their inclusion of lot 48 in a wetlands conservancy district on their determination that the parcel was at one time a freshwater marsh that was filled some time in the early 1960's. In essence, the defendants ask the court to amplify the Brewster by-law so as to include a provision that parcels not shown on the map of Wetlands Conservancy Districts, but which are known to be filled wetlands, are entitled to protection as wetlands although they do not contain any of the soil types or soil associations listed in Section III. D. 1. a.

It is true that courts must not view challenged zoning provisions in isolation, but rather must give them a sensible and practical meaning in the context of the by-law as a whole. See Selectmen of Hatfield v. Garvey, 362 Mass. 821 , 826 (1973); Green v. Board of Appeal of Norwood, 358 Mass. 253 , 258-259 (1970); Owens v. Board of Appeals of Belmont, 11 Mass. App. Ct. 889 , 995 (1981). It is also true, however, that courts are bound by the language used in the bylaw, and must construe words according to their common and approved usages without enlargement or restriction and without regard to the court's own conception of expediency. See Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981); Kurz v. Board of Appeals of N. Reading, 341 Mass. 110 , 112 (1960); Commonwealth v. S. S. Kresge Co., 267 Mass. 145 , 148 (1929). In other words, it is the reviewing court's duty to determine what the bylaw says, not what the court (or any of the contesting parties, for that matter) believes it should have said.

From the evidence presented, one may conclude that it is sound public, policy for Brewster to closely examine filled wetland areas to determine whether they still function as wetlands, and whether the purposes of the wetlands conservancy scheme as set out in its preamble will be fostered by restricting or prohibiting development in such areas. To effectuate this policy, however, it is incumbent upon the municipality to enact legislation that puts the pu blic on notice that such filled wetlands may be subject to regulation. While preambles can be useful aids to construction of unclear or ambiguous statutes, they do not take precedence over the plain provisions thereof. See Brookline v. Commissioner of DEQE, 398 Mass. 404 , 412 (1986); Milk Control Bd. v. Gosselin's Dairy, Inc., 301 Mass. 174 , 179-180 (1938). Presently, the Brewster zoning by-law contains no provision relating to filled wetlands, and as lot 48 does not exhibit any of the soil types or soil associations which by the clear language of Section III. D. must be present to qualify a lot as a Wetlands Conservancy District, I must find and rule that lot 48 is not such a district under Section III. D. of the Brewster zoning by-law. [Note 1]

The court's analysis with respect to lot 95 differs from that pertaining to lot 48 in that the building inspector found on lot 95 a substance that arguably brings the parcel within the definition of a Wetlands Conservancy District provided in Section III. D. 1. a. of the by­law. The report of the building inspector indicates that he found, among other substances, a layer of "medium black sand/peat mix" from 52" to 55" below the surface of lot 95. Similarly to lot 48, lot 95's status as a filled wetland (in this instance a cranberry bog) is immaterial based on the unambiguous language of the by-law. Accordingly, the key to our inquiry is the question, does a three-inch layer of "medium black sand/peat mix" qualify as "peat" as that term is employed in Section III. D. 1. a. of the by-law?

Again, our first resort is to the language of the by-law. Pursuant to Section III. D. 1. a., the soil types and associations whose presence indicate a wetlands conservancy district are: muck, peat, tidal marsh, coastal beach, cranberry bog, freshwater marsh, Deerfield, Au Gres, Scarboro, Ningret, Belgrade and Raynham. That section goes on to state "soil descriptions and their [sic] interpretation of land uses will be found in the report prepared for the Town of Brewster by the United States Department of Agriculture Soil Conservation Service." In the Soil Conservation Service report, under the heading "Descriptions of Soil Series and Land Types," peat is described thusly:

These are very poorly drained bog soils formed in organic deposits which are underlain by mineral soil material. Peat soils have dark reddish colors and the plant remains can be identified by the unaided eye. These soils are mostly woody peat with some spagnum peat areas. They occur in depressions and potholes in which the water table is at or near the surface most of the year. Some of the soils have 1 to 3 feet of organic matter over mineral soil material but most of them have many feet of organic material.

Both the above description and Section III. D. 1. a. of the Brewster by-law refer to peat as a "soil." As expert testimony at trial indicated, and as I have found, "soil" is a term of art that refers to the upper layer of the earth's crust beginning at the surface and extending down to a depth where soil-forming factors cease to operate. Soils may consist of distinct layers or "horizons" of material which, when appearing together in certain recognized configurations, constitute a particular soil "type." The definition of peat soil appearing in the Soil Conservation Service report indicates that peat soils are found in depressions and potholes where the water table is at or near the surface most of the year, usually consist of one to three feet or more of organic material, and are underlain by mineral soil material.

In the instant case, the building inspector dug one test pit on lot 95 and found, among other material, a layer of "medium black sand/peat mix." This layer or horizon was not found in a depression or pothole, but 52 to 55 inches beneath the surface of lot 95. Moreover, because the building inspector did not dig deeper than 55 inches, there is no evidence indicating the thickness of this horizon, nor whether it is underlain by mineral soil material. Consequently, while the building inspector may have found below the surface of lot 95 a horizon containing, along with black sand, the substance peat, his findings were not sufficient to establish the presence on lot 95 of peat soil as that term is unambiguously defined by the Soil Conservation Service report.

For all the foregoing reasons, I find and rule that lot 95 is not a Wetlands Conservancy District under Section III. D. of the Brewster zoning by-law. I further find and rule that because neither lot 48 nor lot 95 are Wetlands Conservancy Districts, the Board of Appeals exceeded its authority in denying, after remand, the plaintiff's appeals of the building inspector's refusal to issue building permits for lots 48 and 95. Accordingly, the decisions of the Board of Appeals at issue are annulled insofar as those decisions purport to deny, on the basis of the status of lots 48 and 95 as Wetlands Conservancy Districts, the plaintiff's appeals from the building inspector's refusal to issue said building permits. [Note 2]

As neither lot 48 nor lot 95 are Wetlands Conservancy Districts, the court need not reach the issue of whether the relevant by-law provisions are unconstitutional as applied to lots 48 and 95. Similarly, the court need not reach issues relating to the plaintiff's applications for special permits and variances. Both parties submitted requests for findings of fact and rulings of law. As the court has found the facts in detail and set out the applicable law in its decision, it declines to rule individually on the parties' numerous requests.

Judgment accordingly.