Hamilton v. Conservation Commission of Orleans

Citation425 N.E.2d 358,12 Mass.App.Ct. 359
PartiesKatherine M. HAMILTON v. CONSERVATION COMMISSION OF ORLEANS et al. 1
Decision Date21 August 1981
CourtAppeals Court of Massachusetts

Daniel J. Fern, Hyannis, for plaintiff.

Lawrence O. Spaulding, Jr., Orleans, for defendants.

Before ARMSTRONG, PERRETTA and DREBEN, JJ.

PERRETTA, Justice.

The plaintiff wished to build a house on her land located on the shore of Cape Cod Bay in the town of Orleans. She filed a notice of her intent to do so with the defendant commission, as required under the Wetlands Protection Act, G.L. c. 131, § 40, as amended through St.1977, c. 131. The commission denied permission to proceed with the work described in her notice of intent, and she appealed to the Department of Environmental Quality Engineering (DEQE), which set numerous conditions on her plans to build. While of the belief that these conditions constituted a prohibition against construction of any house on the land, the plaintiff did not seek judicial review pursuant to G.L. c. 30A, § 14, because, as she maintains, the DEQE's decision does not suffer from any of those defects specified in c. 30A, § 14(7)(a ) through (g). Rather, she accepted the decision of the DEQE and relies upon it as the basis of her present action against the defendants, in which she alleges that the commission's denial of her notice of intent and the final decision of the DEQE constituted a taking of her land without just compensation. The plaintiff's complaint was dismissed, without prejudice, pursuant to the defendants' motion to dismiss brought under Mass.R.Civ.P. 12(b)(6) and (7), 365 Mass. 755 (1974), and she appeals. We conclude that the plaintiff's action does not lie against these defendants, and we affirm the judgment of dismissal.

The record appendix includes the complaint, the motion to dismiss, a supporting affidavit from the chairman of the commission, and, by way of attachment to that affidavit, the decisions of the commission and the DEQE and the trial judge's memorandum of decision. This appeal turns on the propriety of the procedure followed by the plaintiff and not upon the factual basis for the denial of her notice of intent. Consequently, in reaching our decision we accept all of the factual assertions of the plaintiff, as supplemented by the defendants. See Lowell Gas Co. v. Attorney Gen., 377 Mass. 37, 39, 385 N.E.2d 240 (1979); United States Fid. & Guar. Co. v. N.J.B. Prime Investors, 6 Mass.App. 455, 456 and n.2, 377 N.E.2d 440 (1978); REITER V. NORTHAMPTON, --- MASS.APP. ---, 406 N.E.2D 416 (1980)A. 2

The facts are as follows. The plaintiff, together with her husband prior to his death, has owned the land at issue for some twenty years. The northwest border of the property fronts directly on Cape Cod Bay and is approximately 350 feet long. The land is in an area zoned for residential use, and it has been assessed for purposes of real estate taxes at $50,000.

Because the plaintiff intended to build on land situated on the shoreline, she filed a notice of intent and the plans for the proposed construction project with the defendant commission on October 28, 1977, as required by G.L. c. 131, § 40. 3 We need not detail the reasons given by the commission for its denial; it is sufficient to relate that its decision was based upon a determination that the land on which the work was to be done was significant to those interests protected by § 40 and that those interests would be endangered by the intended construction. In its decision the commission stated that it "has not considered and does not rule on at this time other activities which are of different size, materials, location, design, or type which the applicant may propose at a later date."

The plaintiff pursued her statutory right to request the DEQE to make its own determination on her proposal. On February 24, 1978, the DEQE issued its order of conditions which superseded the commission's and which allowed "the proposed work to proceed." The DEQE found that the project would not involve any of the interests specified in § 40 and cited by the commission in its order of denial. The commission then requested that the DEQE reconsider its order. A "full adjudicatory hearing" was held before another DEQE hearing officer, and on February 14, 1980, the DEQE issued a "final decision" and order, setting out the following critical condition it deemed necessary to the protection of § 40 concerns: "For the reasons stated more fully in the Final Decision of this date ... the work proposed in the Notice of Intent and accompanying plans, as amended through this date, is prohibited. Nothing herein prohibits the filing of a new Notice of Intent provided that the Notice of Intent is supported by substantial evidence which shows that (1) any house would be constructed on pilings, (2) any sub-surface sewage disposal system would comply with (310 Code Mass. Regs. § 15.01, et seq. (1978)), (3) there would be a lawful, dependable and environmentally sound source of adequate potable water, (4) no work would occur, and no equipment or vehicles would intrude, seaward of any point 20 feet landward of the mean high water mark, and (5) no revetment shall be constructed."

The essence of the plaintiff's complaint is that the commission's proceedings and the DEQE's final decision "deprive( ) (her) of all economically reasonable benefits of her said premises, and said decision appropriates so many of its rights and uses as to constitute a taking thereof." The primary basis for the trial judge's dismissal of the action was that if a taking had occurred, the DEQE and not the defendant commission was the taking authority, and, therefore, the plaintiff had failed to state a claim against the defendants on which relief could be granted; secondly, he concluded that the complaint should be dismissed because the plaintiff had failed to seek judicial review of the DEQE's decision under G.L. c. 30A, § 14.

The question whether the DEQE's decision constitutes a taking of the plaintiff's land without compensation need not be decided on this appeal. We are required to determine only (1) whether the commission was a proper defendant in this action and (2) whether the plaintiff was required to seek judicial review of the DEQE's decision before commencing her action for a taking. 4

1. Liability for takings resulting from proceedings under G.L. c. 131, § 40.

The plaintiff argues that the DEQE is not a necessary party to her action because "the character of the order of conditions, whether made by the commission or as modified, if at all, by DEQE remains local in nature and effect upon the parcel for which application was initially made." Because of the history and the express language of § 40, we do not agree with this contention.

The legislative history of § 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. 5

Section 40 first appeared as G.L. c. 130, § 27A, inserted by St.1963, c. 426, and pertained solely to coastal wetlands. By that enactment, the Legislature delegated to the local authorities acting upon work project applications the limited power to "recommend" such "measures as may protect the public interest." 6 The Department of Public Works was charged with the responsibility of enforcing the provisions of § 27A as they related to certain waterways, see G.L. c. 91, §§ 30 and 30A, and the Director of Marine Fisheries was vested with the authority to "impose such conditions on said proposed work as he may determine necessary to protect such shellfish or marine fisheries, and work shall be done subject thereto." See Commissioner of Natural Resources v. S. Volpe & Co., 349 Mass. 104, 206 N.E.2d 666 (1965). 7 Under the statute the Department of Public Works held veto power over projects within its jurisdiction. Golden v. Selectmen of Falmouth, 358 Mass. 519, 525, 265 N.E.2d 573 (1970).

Comparable protection for inland wetlands was established by G.L. c. 131, § 117C, inserted by St.1965, c. 220. When G.L. c. 131 was revised in its entirety by St.1967, c. 802, § 1, this section became part of the new c. 131, § 40. Like G.L. c. 130, § 27A, c. 131, § 40, as appearing in St.1967, c. 802, § 1, required that notice of work projects on inland wetlands which involved statutory concerns be filed with local authorities, which could "recommend such protective measures as may protect the public interest." However, the power to "impose such conditions as may be necessary to protect the interests described herein" was legislatively delegated to the Commissioner of Natural Resources. The statute retained final say in the Commonwealth by further providing that if the Commissioner imposed conditions on the proposed work, "the work shall be done in accordance therewith."

Local conservation commissions had been established by G. L. c. 40, § 8C, inserted by St. 1957, c. 223, § 1, "for the promotion and development of the natural resources and for the protection of watershed resources of said city or town" accepting the statute. Statute 1971, c. 1020, and St. 1972, c. 510, added conservation commissions to those local authorities described in c. 131, § 40, and c. 130, § 27A, respectively.

The next amendment of G. L. c. 131, § 40, of any consequence to our analysis was by St. 1972, c. 784, which made § 40 applicable to both coastal and inland wetlands and repealed c. 130, § 27A. 8 That amendment also gave local authorities greater power by no longer restricting them to the mere making of recommendations. The local authorities were given that which had been the exclusive function of the Commonwealth, namely, the powers "to impose such conditions as will contribute to the protection of the interests described herein" and to require that "all work shall be done in accordance"...

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