PIERRE COLL v. CONSERVATION COMMISSION OF PLYMPTON & Others.

• Court: Massachusetts Appeals Court
• Decided: December 5, 2024
• Docket: 23-P-1182
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1182

PIERRE COLL

vs.

CONSERVATION COMMISSION OF PLYMPTON & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Plympton Conservation Commission (commission) denied

the application of Pierre Coll (applicant) for an order of

conditions allowing him to build a single-family home on his

property containing wetlands, and the applicant filed a

complaint seeking judicial review of that denial. The applicant

appeals from a judgment of the Superior Court affirming the

commission's decision. Concluding that the commission's

decision that the applicant failed to demonstrate by clear and

convincing evidence that the proposed project would provide a

public benefit and have no significant adverse effect on

1Richard Burnet, Amy Cronin, Linda Leddy, Michael Matern, and the town of Plympton. The individuals were members of the Plympton Conservation Commission at the relevant time. wetlands values was supported by substantial evidence, we

affirm.

1. Standard of review. "In an action in the nature of

certiorari challenging a wetlands permit decision made by a

conservation commission pursuant to a local by-law, our review

is limited at most to whether the commission's decision is

supported by substantial evidence in the administrative record,

whether the commission's action was arbitrary and capricious,

and whether the commission committed an abuse of discretion or

other error of law." Delapa v. Conservation Comm'n of Falmouth,

93 Mass. App. Ct. 729, 733-734 (2018). "Substantial evidence

[is] such evidence as a reasonable mind might accept as adequate

to support a conclusion." Cave Corp. v. Conservation Comm'n of

Attleboro, 91 Mass. App. Ct. 767, 773 (2017), quoting Healer v.

Department of Envtl. Protection, 75 Mass. App. Ct. 8, 13 (2009).

"An agency's finding 'must be set aside if "the evidence points

to no felt or appreciable probability of the conclusion or

points to an overwhelming probability of the contrary."'"

Rodgers v. Conservation Comm'n of Barnstable, 67 Mass. App. Ct.

200, 205 (2006), quoting New Boston Garden Corp. v. Assessors of

Boston, 383 Mass. 456, 466 (1981).

Where, as here, the Superior Court judge decided the

certiorari action on the pleadings, we review that decision de

2 novo. See Boston Clear Water Co. v. Lynnfield, 100 Mass. App.

Ct. 657, 660 (2022).

2. Propriety of commission review. Where a local

conservation commission denies a wetlands permit based on the

requirements of G. L. c. 131, § 40, the applicant "may ask the

[Department of Environmental Protection (DEP)] to issue its own

order, which will 'supersede the prior order of the conservation

commission.'" Boston v. Conservation Comm'n of Quincy, 490

Mass. 342, 345 (2022), quoting G. L. c. 131, § 40, nineteenth

par. Where, however, a local conservation commission "rests its

determination on provisions of a local bylaw that are more

protective than" State law, "a superseding order of conditions

issued by the DEP cannot preempt the conservation commission's

bylaw-based determination." Oyster Creek Preservation, Inc. v.

Conservation Comm'n of Harwich, 449 Mass. 859, 865 (2007).

The requirements of the town of Plympton (town) wetlands

bylaws and regulations are considerably more stringent than the

State requirements.2 Unlike the State law, the town bylaws and

regulations generally prohibit work within fifty feet of

vegetated wetland. Town of Plympton Bylaws (Bylaws) § 290-2(A),

(D); Town of Plympton Wetlands Bylaw Regulations (Regulations)

The applicant makes no argument that the regulations 2

exceed the proper scope of the broad authority imparted to the commission to issue regulations under the town bylaws. See Town of Plympton Bylaws, §§ 290-6(G), 290-7.

3 § 16(C), § 19(C)(1). Contrast 310 Code Mass. Regs. § 10.55

(2014). State law permits destroying or impairing vegetated

wetlands up to five thousand square feet where they are replaced

with equal and equivalent wetlands. 310 Code Mass. Regs.

§ 10.55(4)(b) (2014). The town regulations, by contrast,

require "at least twice that of the altered Bylaw resource area

and shall offer additional protection to the Bylaw wetlands

values." Regulations § 21(D)(2). Accordingly, the town bylaws

and regulations are more restrictive than State law. See Cave

Corp., 91 Mass. App. Ct. at 771-772.

Of course, "[t]he simple fact . . . that a local by-law

provides a more rigorous regulatory scheme does not preempt a

redetermination of the local authority's decision by the DEP

except to the extent that the local decision was based

exclusively on those provisions of its by-law that are more

stringent and, therefore, independent of the act." Healer v.

Department of Envtl. Protection, 73 Mass. App. Ct. 714, 718-719

(2009). See also Parkview Elecs. Trust, LLC v. Conservation

Comm'n of Winchester, 88 Mass. App. Ct. 833, 837 (2016)

("Insofar as a commission's decision is based on local law and

State law, DEP has jurisdiction to review it and supersede that

portion of the commission's decision that is based on State

law"). Here, the commission specifically found that the project

was in compliance with State law and "[a]pproved [it] under the

4 Massachusetts Wetlands Protection Act." The commission,

however, denied approval of the project because it found that

the project violated several provisions of the town bylaws and

regulations.

The commission explained in detail how the project failed

to comply with town's more stringent requirements concerning the

inner buffer zone. The commission expressly applied Regulations

§§ 16(C) and 19(C) and its general prohibition on alterations

within the inner buffer zone. This is not a case where "a town

conservation commission simply refers to a by-law without

providing any indication that it actually relied on it or how it

did so." Boston v. Conservation Comm'n of Quincy, 490 Mass. at

346, quoting Oyster Creek Preservation, Inc., 449 Mass. at 866

n.12. Accordingly, the commission properly applied the town

bylaws and regulations after concluding that the project

complied with State law.

3. Driveway. The commission found numerous violations

regarding the project's alterations in the inner and outer

buffer zones. To affirm the commission's denial of an order of

conditions, however, we need address only the commission's

findings regarding the driveway. "We defer to the commission's

reasonable construction of the by-law." Nelson v. Conservation

Comm'n of Wayland, 90 Mass. App. Ct. 133, 134 (2016).

5 Regarding the driveway, the project involves replacing up

to 350 square feet of vegetated wetlands and requires tree

clearing and driveway construction within the inner buffer zone.

To obtain relief from the prohibition on work within the inner

buffer zone, the applicant had, inter alia, the burden of

showing "by clear and convincing evidence,[3] that: . . .

(2) The proposed work, including necessary and required

mitigation measures, and its natural and consequential

cumulative effects, will have no significant adverse effects

upon any of the Bylaw wetland values; and (3) That the project

provides benefits in the public interest." Regulations § 21(B).4

The commission found that the applicant "failed to provide

clear and convincing evidence that the initial construction of

3 The applicant makes no argument that the "clear and convincing evidence" standard runs afoul of the principles stated in Conroy v. Conservation Comm'n of Lexington, 73 Mass. App. Ct. 552, 559 (2009). We note that, unlike in the Conroy case, the town bylaws specifically adopt the "clear and convincing" standard for "showing that the proposed work in the 'no touch zone' will not adversely affect the resource area." Bylaws § 290-2(D)(2).

4 We recognize that the town bylaws separately allow the commission the discretion to waive any performance standard where "the Commission finds in writing after a public hearing that . . . the waiver is necessary to accommodate an overriding public interest or to avoid a decision that so restricts the use of the property as to constitute an unconstitutional taking without compensation." Bylaws § 290-6(F). These requirements have not yet been met, but nothing in our decision should be construed as suggesting the commission could not grant a waiver if it were established that the denial of a waiver would constitute a taking.

6 the driveway and the regular use will have no significant

adverse effect on the vegetated wetland values." We start by

observing that the applicant, who bore the burden of proof by

clear and convincing evidence, put little effort into meeting

this burden, relying solely on reports by Grady Consulting,

which submitted the notice of intent on behalf of the applicant.

Grady Consulting opined that "[t]he improvement of the accessway

with gravel creates more stability," that "[t]he inclusion of a

12[-inch] pvc pipe under the improved accessway will allow for

unobstructed flow of water," and that "[t]he proposed work to

install a culvert and improve the path with a stable gravel

surface is a significant improvement to continuing to use the

dirt path as is." The Grady Consulting report concluded that

the project "will have no significa[nt] adverse effects upon any

of the Bylaw wetland values."

ADL Consulting submitted a report, repeatedly updated, that

disagreed with many of Grady Consulting's opinions and

conclusions. In its final form, ADL Consulting's report stated

that no documentation had been provided to support the

engineer's contention that a box culvert would not be

preferable. ADL Consulting concluded that the project "is not

in compliance of the local wetland regulations," that "[t]here

appears to be reasonable alternative to the size and siting of

the building foundation," and that "[w]ater off the driveway,

7 building roof and the size of the lawn area could impact

groundwater quality and reduce the natural water absorption

needed for drinking water."5

The applicant provided no expert testimony or other

evidence to support the credibility of Grady Consulting's

opinions over ADL Consulting's opinions. Logic does not require

(or, for that matter, exclude) the conclusion that a gravel road

with a culvert leading to a single-family house is as good for

the wetlands as the existing dirt road to an unimproved lot. In

short, nothing in the administrative record required the

commission to credit Grady Consulting's opinion over ADL

Consulting's opinion, much less find that the applicant had

proved the absence of significant adverse effects by clear and

convincing evidence. As "a reviewing court may not displace an

agency's deliberative choice between two fairly conflicting

views of the record evidence," McGovern v. State Ethics Comm'n,

96 Mass. App. Ct. 221, 231 (2019), we have no cause to disturb

the commission's denial.

4. Public interest. As stated, the landowner also had the

burden to prove, by clear and convincing evidence, "[t]hat the

project provides benefits in the public interest." Regulations

§ 21(B)(3). "Public interest" is defined in the regulations as

5 Apparently, the town is reliant on private wells for residential drinking water.

8 "[s]omething of benefit to the health, welfare, or safety to the

Plympton community at large as opposed to one individual,

special interest group, organization, or other entity."

Regulations § 4(B). The applicant's "Public Interest Statement"

proposed that the public benefits would be "an increase in tax

revenue," an increase in "[p]roperty values of surrounding

houses," the improvement to the driveway, and the "proposed

wetland replication area." The commission determined that the

landowner had not met his burden of showing a public interest.

Again, the applicant failed to provide any significant

evidence to support these contentions. Nothing in the

administrative record establishes that the project would

increase the property values of the surrounding houses or that

the increased tax revenue from the project would exceed the

increased costs of providing municipal services to the residents

of the new single-family home. As explained supra, the

commission could reasonably conclude that the new gravel

driveway was not an improvement over the old dirt road.

Although the applicant provided a comprehensive description of

the wetland replication area, the applicant provided no evidence

that it would be preferable to the existing state of affairs.

The applicant also urges on appeal that an offer of a

conservation restriction constitutes a public benefit. Although

this did not appear in the applicant's "Public Interest

9 Statement," the commission noted that "the Applicant mentioned

the possibility of giving the Town a Conservation Restriction on

a majority of the wetlands acreage." Again, no details of this

potential conservation restriction appear in the administrative

record, and the applicant makes no attempt, even on appeal, to

explain how this potential conservation restriction would

protect anything that is not already protected by the town's

wetlands regulations. In light of the absence of proof in the

administrative record of any of these proposed public benefits,

the commission was justified in finding that the applicant

failed to meet his burden of showing such public benefits by

clear and convincing evidence. See Narducci v. Contributory

Retirement Appeal Bd., 68 Mass. App. Ct. 127, 136-137 (2007).

Judgment affirmed.

By the Court (Blake, C.J., Ditkoff & D'Angelo, JJ.6),

Clerk

Entered: December 5, 2024.

6 The panelists are listed in order of seniority.