FIC Homes of Blackstone, Inc. v. Conservation Com'n of Blackstone

• Decision Date: 27 January 1997
• Docket Number: No. 95-P-118,95-P-118
• Citation: 41 Mass.App.Ct. 681,673 N.E.2d 61
• Parties: FIC HOMES OF BLACKSTONE, INC., & another 1 v. CONSERVATION COMMISSION OF BLACKSTONE & another. 2
• Court: Appeals Court of Massachusetts

Page 61

673 N.E.2d 61

41 Mass.App.Ct. 681

FIC HOMES OF BLACKSTONE, INC., & another ¹ v. CONSERVATION COMMISSION OF BLACKSTONE & another.

²

No. 95-P-118.

Appeals Court of Massachusetts,

Worcester.

Argued March 14, 1996.

Decided Nov. 21, 1996.

Further Appellate Review Denied Jan. 27, 1997.

Henry J. Lane, Whitinsville, for plaintiffs.

Joel B. Bard, Boston, for defendants.

Before IRELAND, GILLERMAN and LENK, JJ.

LENK, Justice.

Acting under Blackstone's wetlands by-law (1991), that town's conservation commission denied to the plaintiffs an order of conditions for construction of a house and driveway on a lot that bordered on and included a vegetative wetland. The proposed construction would violate a by-law prohibition against building within 100 feet of a wetland, and would, the commission concluded, have an adverse impact on interests protected by the by-law, including ground water supply, storm damage prevention, prevention of pollution, and protection of wildlife habitat. The plaintiffs appealed from the denial to the Superior Court in an action in the nature of certiorari, see G.L. c. 249, § 4, claiming that the commission had acted arbitrarily and capriciously in denying the order of conditions. The plaintiffs also alleged that the commission's denial was preempted by a subsequent superseding order of conditions issued by the Department of Environmental Protection (DEP) under the Wetlands Protection Act, and that the by-law was invalid as applied to the plaintiffs' land; thus, denial of the order of conditions constituted a regulatory taking in violation of the Fifth Amendment to the United States Constitution. The Superior Court affirmed, concluding that the commission's decision was not preempted by the DEP superseding order and did not constitute a taking. The plaintiffs appeal from the court's decision. We affirm.

On July 15, 1992, the plaintiff FIC Homes ³ (FIC) purchased thirty-eight lots in the sixty-five-lot Federal Hill Estates subdivision located in Blackstone. The prior developer had defaulted, and FIC purchased the property from the Federal Deposit Insurance Corporation. Five years before FIC bought the lots, the prior developer, in March, 1987, had obtained an order of conditions from the commission, pursuant to the Wetlands Protection Act (act), G.L. c. 131, § 40, and c. 119 of the Blackstone wetlands by-law (by-law), authorizing construction of roadways, drainage, and utilities in the subdivision (1987 order). The 1987 order, which expired by its own terms in 1990, required construction of wetlands replication areas on lots 7, 8, and 47 as compensation for the loss of wetlands resulting from construction of the major road through the subdivision, Rocco Drive. After the road construction and replication work were completed, part of the replication area on lot 47 leaked onto lot 48, thereby also creating a wetland area on lot 48. On September 3, 1992, the plaintiffs, acting pursuant to the act and the by-law, filed a notice of intent (NOI) with the commission to build a house and driveway on lot 48. As proposed, a small part of the house and virtually the entire driveway would be within a 100-foot buffer zone protected by the by-law. When the plaintiffs filed the NOI, and indeed, when FIC purchased the property in July, 1992, the by-law then in effect, at § 119-2, required filing of a NOI for any work proposed within 100 feet of wetlands (the buffer zone), and, at § 119-12(B), a mandatory 100-foot setback from the wetlands for any buildings.

The commission held public hearings on the plaintiffs' proposal on September 29, 1992, October 20, 1992, November 10, 1992 (at which the plaintiffs requested a continuance, because they were revising their site plan as a result of inaccuracies noted by commission members), December 8, 1992 (where the plaintiffs requested a further continuance), and January 12, 1993. The plaintiffs revised their plan a number of times during this period, in response to concerns raised regarding impacts of the project on the wetlands values protected by the act and the by-law. However, the commission found the final submitted plan (dated November, 1992) inadequate and voted unanimously to deny the order of conditions at its January 12, 1993, meeting. The formal order of conditions denying permission for the project was issued on February 1, 1993, pursuant to both the act and the by-law. On March 3, 1993, the plaintiffs appealed from the commission's decision under the by-law to the Superior Court. While the Superior Court appeal was pending, the plaintiffs also appealed from the commission's decision under the act to the DEP. In response to concerns expressed by the DEP, the plaintiffs modified their plan once more, on June 4, 1993. DEP found the modifications adequate to safeguard wetlands interests protected by the act, and, during the pendency of the Superior Court action, issued a superseding order of conditions on July 27, 1993, granting permission for the project to proceed under the act. The commission did not appeal from the superseding order. The plaintiffs did not request the commission to reconsider its February 1, 1993, decision based upon the plaintiffs' revised June, 1993, plans.

1. Review under certiorari. The plaintiffs appealed from the commission's denial of an order of conditions under a writ of certiorari pursuant to G.L. c. 249, § 4. In a review under certiorari, the court is limited to correcting "substantial errors of law apparent on the record adversely affecting material rights." Commissioner of Rev. v. Lawrence, 379 Mass. 205, 208, 396 N.E.2d 992 (1979) (citations omitted). See also Carney v. Springfield, 403 Mass. 604, 605, 532 N.E.2d 631 (1988). The standard of review varies "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), and cases cited. As the plaintiffs argue that the commission applied improper criteria in denying the order of conditions, we apply the "arbitrary and capricious" standard to our review of its decision. ⁴ See Fafard v. Conservation Commn. of Reading, 41 Mass.App. 565, 672 N.E.2d 21 (1996). "A decision is not arbitrary and capricious unless there is no ground which 'reasonable [persons] might deem proper' to support it." T.D.J. Dev. Corp. v. Conservation Commn. of N. Andover, 36 Mass.App.Ct. 124, 128, 629 N.E.2d 328 (1994), quoting from Cotter v. Chelsea, 329 Mass. 314, 318, 108 N.E.2d 47 (1952).

The plaintiffs complain that in its decision under the by-law, the commission: (a) relied on a "presumption of significance" for the denial of the plaintiffs' proposal, where the by-law contains no provision for such a presumption; and (b) considered the proposed activity on lot 48 in relation to the entire subdivision, and in relation to previous impacts on lot 48 and adjacent lots, where these concerns are not explicitly articulated in the by-law.

a. Presumption of significance. The commission's February 1, 1993, written denial of the order of conditions states, "A Denial of Order of Conditions under the ... Wetland Bylaw is issued for the proposed work. Presumption of significance was not overcome in relation to ground water supply, storm damage prevention, prevention of pollution, and protection of wildlife habitat." The plaintiffs argue that, while the act contains a presumption of significance for inland wetlands (see 310 Code Mass.Regs. § 10.55 [1989] ), ⁵ no such language appears in the town by-law. The plaintiffs acknowledge, however, that the by-law, at § 119-9, places the burden of proof on them to demonstrate that their proposed project will not harm interests protected by the by-law. ⁶ We see no functional difference between placing the burden of proof on the applicant to show that activities in protected areas will not harm interests protected by the by-law, and a presumption of significance for protected areas. We note that the plaintiffs do not cite to any evidence in the administrative record demonstrating that they met their burden before the commission. ⁷

Moreover, the plaintiffs have not explained their failure to seek a variance for their acknowledged violation of § 119-12(B) of the by-law, which imposes a 100-foot wetlands setback requirement on buildings. This was another of the commission's reasons for denying their proposal, and is alone sufficient to uphold the commission's decision, as it is well established that no one is entitled to a variance. Pendergast v. Board of Appeals of Barnstable, 331 Mass. at 559, 120 N.E.2d 916. See also Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277, 244 N.E.2d 311 (1969).

b. Consideration of previous impacts and context of entire subdivision. In section 3 of its order, the commission states, "The proposed activity on Lot 48 in relation to the scope of the subdivision and previous impacts to Lot 48 and adjacent lots have not been taken into consideration." The plaintiffs argue that the by-law does not explicitly allow for such considerations. While the plaintiffs' brief does not rise to the level of appellate argument on this point, see Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), we nonetheless note that the by-law does not bar such considerations, which, as the trial court noted, appear to be highly relevant to an assessment of the potential effects of the proposed project on the interests protected by the by-law. For example, at the time of the plaintiffs' proposal, lot 48 itself contained wetlands, as a result of wetland replication work on the abutting lot 47 that had leaked onto lot 48. Such considerations are certainly not irrelevant in assessing the impacts of the plaintiffs' proposal. The commission's denial of the order of conditions was not arbitrary or capricious.

2. Preemption. The plaintiffs argue that as the Blackstone by-law is no more stringent than the Wetlands Protection...