DeGrace v. Conservation Com'n of Harwich

• Decision Date: 29 July 1991
• Docket Number: No. 89-P-1339,89-P-1339
• Citation: 575 N.E.2d 373,31 Mass.App.Ct. 132
• Parties: Joseph DeGRACE et al. 1 v. CONSERVATION COMMISSION OF HARWICH.
• Court: Appeals Court of Massachusetts

Page 373

575 N.E.2d 373

31 Mass.App.Ct. 132

Joseph DeGRACE et al. ¹ v. CONSERVATION COMMISSION OF HARWICH.

No. 89-P-1339.

Appeals Court of Massachusetts,

Barnstable.

Argued Feb. 11, 1991.

Decided July 29, 1991.

Gary V. Nichols, West Yarmouth, for plaintiffs.

James M. Falla, Town Counsel, West Harwich, for defendant.

Before BROWN, GILLERMAN and LAURENCE, JJ.

BROWN, Justice.

The plaintiffs, who are husband and wife, purchased a lot in the town of Harwich in the early 1970's with the intention of building their retirement home there when Joseph retired. In 1984, Joseph did retire and retained an engineering firm to design a house for the lot. A notice of intent to construct a dwelling was filed by the plaintiffs with the Conservation Commission of Harwich (commission), as required under the Wetlands Protection Act, G.L. c. 131, § 40 (act). ² This petition sought commission approval for construction of a two-bedroom house, gravel driveway, and subsurface septic system. Plans for the proposed septic system were also submitted for approval. On June 26, 1987, the commission entered an order denying approval of the project on grounds that it involves the "filling of wetland" and that the proposed "septic system fails to meet the standards of the [Harwich] Board of Health."

1. The wetlands issue. Two avenues of appeal are available to applicants aggrieved by an order of the Harwich Conservation Commission: the first, under G.L. c. 131, § 40, thirteenth par., ³ is to the Department of Environmental Quality Engineering (DEQE) ⁴; the second, under St.1981, c. 569, and a Harwich by-law (§ 9-108), is to the District Court. ⁵ When the plaintiffs' petition to build their house and driveway was denied by the commission, they appealed to both the DEQE and the District Court.

On September 9, 1988, the DEQE issued a superseding order which approved the project subject to certain conditions. According to the DEQE, the areas in question are not "Areas Subject to Protection Under the Act" as that term is defined in its regulations. The commission had concluded that the two areas were connected and that "there is groundwater movement between ponds." The DEQE, on the other hand, determined that the two "isolated" depressions are too small to be regulated as "Isolated Land Subject to Flooding."

As noted, the plaintiffs also filed an action in the District Court challenging the commission's order of conditions which imposed a ban on construction, pursuant to St.1981, c. 569, § 1. A trial de novo was held on various dates. On June 29, 1989, the judge issued findings, rulings and order for judgment and affirmed the decision of the commission. The judge found that the DEQE's determination that neither of the two areas is "connected as far as surface topography is concerned does not compel the conclusion that they are 'isolated.' " He also concluded that the commission is not required to accept or be bound by the determination ... [of] the DEQE" and that the commission "is entitled to impose more stringent standards than those utilized by the DEQE, [and thus include] any subterranean connection between the two areas and larger bodies of water in the area." ⁶

The parties appear to have assumed that the District Court judge was to determine whether the ruling of the commission or the ruling of the DEQE would stand. This was error: the District Court judge had no power to disturb the ruling of the DEQE. Any appeal from the order of the DEQE would have to have been made pursuant to G.L. c. 30A, § 14. (None was taken.)

"The legislative history of [G.L. c. 131, § 40] demonstrates that the Legislature has always reserved to the Commonwealth, acting through its various agencies, the final decision on applications for projects affecting statutory concerns as to wetlands protection." Hamilton v. Conservation Commn. of Orleans, 12 Mass.App.Ct. 359, 364, 425 N.E.2d 358 (1981). The language of the act itself lends support to this position. It specifically states that "any person aggrieved" by an order of the commission may request the DEQE to review those concerns considered by the commission, and the DEQE's determination and order shall "supersede the prior order of the conservation commission ... and all work shall be done in accordance therewith."

The amendments to the act lend further support. Statute 1972, c. 784, amended the act and gave local authorities the power to "impose such conditions as will contribute to the protection of the [wetland values] described [in the act]" and to require that "all work shall be done in accordance" with any conditions that they might impose. Notwithstanding this legislative delegation of power to the local authorities, the 1972 amendment did not, however, "divest the Commonwealth of its right to the final say on project applications decided on the basis of those interests recited in § 40." Hamilton v. Conservation Commn. of Orleans, 12 Mass.App.Ct. at 366, 425 N.E.2d 358. Rather, the amendment expressly reserves this right to the Commonwealth, acting through the DEQE.

Local authorities do have final power, however, where they are acting pursuant to an ordinance or by-law which is consistent with the act, but which permissibly imposes "more stringent controls" than the minimum Statewide standards set by the Legislature. See Golden v. Selectmen of Falmouth, 358 Mass. 519, 525-526, 265 N.E.2d 573 (1970). "Thus, where a local authority disapproves a proposed project pursuant to a by-law or ordinance which provides greater protection than § 40, the applicant has no right to seek DEQE approval of the project on the basis that it would be acceptable under the statute.... Where, however, the local authority approves or disapproves an application under § 40, the Commonwealth, through the DEQE, has the final word." Hamilton v. Conservation Commn. of Orleans, 12 Mass.App.Ct. at 368, 425 N.E.2d 358.

Here, the commission's denial of the plaintiffs' application for construction was not based on a by-law "which provides greater protection than § 40." Hamilton, supra. Rather, the town's by-law specifically adopts and incorporates by reference the definition section of the act. In so doing, the town necessarily adopted and incorporated the definition section of the regulations promulgated by the Commonwealth pursuant to the act. Since the town chose not to impose "more stringent controls" than those set by the Legislature concerning those areas which are subject to wetland protection, it follows that the DEQE had the authority to issue a superseding order.

We conclude that, once the DEQE issued its superseding order, the appeal from the commission's order to the District Court was moot, and the District Court judge should have dismissed the case before him. ⁷ Principles of judicial economy also support our decision; we cannot condone a procedure which would...