Fafard v. Conservation Com'n of Reading

• Decision Date: 07 November 1996
• Docket Number: No. 92-P-1176,92-P-1176
• Citation: 41 Mass.App.Ct. 565,672 N.E.2d 21
• Parties: Madlyn A. FAFARD v. CONSERVATION COMMISSION OF READING.
• Court: Appeals Court of Massachusetts

Page 21

672 N.E.2d 21

41 Mass.App.Ct. 565

Madlyn A. FAFARD v. CONSERVATION COMMISSION OF READING.

No. 92-P-1176.

Appeals Court of Massachusetts,

Middlesex.

Argued Sept. 9, 1996.

Decided Nov. 7, 1996.

Stephen D. Anderson, Cambridge, for plaintiff.

H. Theodore Cohen, Town Counsel, for defendant.

Before BROWN, KASS and LAURENCE, JJ.

KASS, Justice.

Although the proposed construction did not encroach on wetland or a protective twenty-five foot "zone of natural vegetation" along the boundary of the wetland, the conservation commission of Reading (commission), on the ground that the construction itself or the use of the resulting house would infallibly cause degradation of the protective zone, declined to issue an order of conditions authorizing the proposed construction. The commission's order was based on a town by-law, rather than on G.L. c. 131, § 40. On review in the nature of certiorari (G.L. c. 249, § 4), a judge in the Superior Court concluded that the commission's decision was lawful. We think that the commission acted arbitrarily and reverse the judgment.

Madlyn Fafard, the plaintiff, owns lot 35, a 27,000 square foot, U-shaped parcel with frontage on Azalea Circle in Reading. See the sketch appended to this opinion. She filed a notice of intent with the commission on February 1, 1991, for the construction of a single-family house, garage, and driveway located as shown on the sketch. That submission was made conformably with G.L. c. 131, § 40, the State Wetlands Protection Act, and § 5.7 of Reading's general by-law (relating to wetlands). Although the work to be done was not within an area defined as wetland, it nevertheless fell under the jurisdiction of the commission because the proposed activity was within 100 feet of an area subject to protection under G.L. c. 131, § 40. See 310 Code Mass.Regs. § 10.02(1) and (2) (1989). That 100-foot strip the regulation refers to as "the Buffer Zone." There is a parallel provision in § 5.7.5 of the Reading by-laws that sets a buffer zone that includes "land extending feet horizontally outward from the boundary of any area subject to protection under this [b]ylaw except land subject to flooding."

During the course of extended submissions to the commission and hearings before it, the property owner gradually backed the project into the configuration appearing on the appended sketch, agreed to a limited work line, a protective fence, and imposition by deed of a restriction on the locus that there be no activity in the zone of natural vegetation. Acting under G.L. c. 131, § 40, the commission by an order of conditions dated May 29, 1991, permitted the proposed construction. "No activity is proposed in any resource area," the commission found, and went on to say "It is the determination of the [c]ommission that the proposed work can be adequately conditioned to protect the interests of the Wetlands Protection Act, c. 131, s. 40 and the Reading General Bylaws, Section 5.7" (emphasis supplied).

Twenty-one conditions followed.

That done, the commission doffed its State hat, replaced it with its local hat, and came to a quite different conclusion. Now operating under the town by-law, the commission had several things to say:

1. "The [c]ommission must consider the practical ability to build exactly as shown on the plan, without any field variation, as well as recognizing the limits of accuracy imposed on the plan by scale. The [c]ommission must conclude that construction itself will encroach upon the buffer zone.

2. "The [c]ommission must also consider that the Fafard Companies [sic] performance on the adjacent filing for Greenhouse Acres ... was found to be in violation of the [o]rders on more than one occasion....

3. "The unusual 'flagpole' configuration of this lot commits a great amount of the upland lot area to access along over 200 feet of driveway.

4. "The [c]ommission must consider the practical result of house construction as proposed, and subsequent occupant activities. It is clearly evident that access to the perimeter of the house and to the yard area will result as a part of occupancy. This activity will be in direct violation of the provisions providing for a protective buffer zone. The [c]ommission concludes that the activity or encroachment will occur as a direct result of locating a house at the closest theoretical limit of the buffer zone during construction and occupancy.

5. "The project as proposed will cause degradation of the buffer zone in violation of the interests of the wetlands protection regulations."

So stating, the commission issued an order denying permission to build the proposed house under any condition.

1. Standard of review. When considering a case under certiorari, the standard of review may vary according to the nature of the action for which review is sought. Forsyth Sch. for Dental Hygienists v. Board of Registration in Dentistry, 404 Mass. 211, 217, 534 N.E.2d 773 (1989). T.D.J. Dev. Corp. v. Conservation Commn. of N. Andover, 36 Mass.App.Ct. 124, 128, 629 N.E.2d 328 (1994). Our cases often speak of testing whether the governmental agency's action was arbitrary and capricious, ibid., which in a context such as this is saying no more than that the reviewing court examines the agency action to determine whether it was authorized by the governing statute--here the Reading by-law--in light of the facts. If the agency has acted for reasons that are extraneous to the prescriptions of the regulatory scheme, but are related, rather, to an ad hoc agenda, then that agency has acted arbitrarily because the basis for action is not uniform, and, it follows, is not predictable. Compare Lovequist v. Conservation Commn. of Dennis, 379 Mass. 7, 18, 393 N.E.2d 858 (1979), where the question was not the criteria to be applied but whether, within announced criteria, the determination that there would be injury to the land in question was supported by substantial evidence.

2. The Reading by-law. It is common ground that the town, under its by-law, could set wetland protection standards that were more demanding than those of the State scheme. Lovequist v. Conservation Commn. of Dennis, 379 Mass. at 15, 393 N.E.2d 858. DeGrace v. Conservation Commn. of Harwich, 31 Mass.App.Ct. 132, 135-136, 575 N.E.2d 373 (1991). T.D.J. Dev. Corp. v. Conservation Commn. of North Andover, 36 Mass.App.Ct. at 125-126, 629 N.E.2d 328. By itself, the commission's approval of the Fafard project for the locus under State law, but its disapproval under municipal law, introduces no legal dissonance and violates no principle of State preemption. ¹

Section 5.7.3 of the by-laws tailors to the geography of Reading (that town does not for example, have coastal wetland) the opening paragraph of G.L. c. 131, § 40. The town by-law provides:

"No person shall remove, fill, dredge or alter any bank, fresh water wetland, flat, marsh, meadow, bog, swamp, or lands bordering any creek, river, stream, pond or lake or any land under said waters or any land subject to flooding ... without filing written notice of his intention to so remove, fill, dredge or alter and without receiving and complying with an [o]rder of [c]onditions...."

Section 5.7.5 provides that "alter" shall mean "to impact by any activity, any area subject to protection under this bylaw." The areas "subject to protection" are those listed in § 5.7.3 quoted above. Under § 5.7.8, the commission

"is empowered to deny permission for any activity that is likely to remove, dredge, fill or alter subject lands within the Town" (emphasis supplied).

In addition to these by-laws, the commission adopted a regulation captioned "Buffer Zone Protection" which provides:

"Bordering any wetland, the [c]ommission 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."

3. Whether commission acted arbitrarily within scope of its by-laws and regulations. Some synthesis of the by-laws and regulations set out is in order. As to the locus and the plaintiff's project, they require that the project not alter the wetland and, although the regulation does not say so expressly, that the zone of natural vegetation be left alone so that it may perform its filtration function.

In the administration of controls limiting the use of land--as with any exercise of the police power--uniformity of standards and enforcement are of the essence. If the laws are not...