Lovequist v. Conservation Commission of Town of Dennis

• Decision Date: 21 August 1979
• Citation: 393 N.E.2d 858,379 Mass. 7
• Parties: , 9 Envtl. L. Rep. 20,730 A. Lawrence LOVEQUIST et al., 1 trustees, v. CONSERVATION COMMISSION OF the TOWN OF DENNIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 858

393 N.E.2d 858

379 Mass. 7, 9 Envtl. L. Rep. 20,730

A. Lawrence LOVEQUIST et al., ¹ trustees, v. CONSERVATION COMMISSION OF the TOWN OF DENNIS.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued May 8, 1979.

Decided Aug. 21, 1979.

James M. Falla, West Harwich, for plaintiffs.

Gregor I. McGregor, Boston (Richard T. Rook, Boston, with him), for defendant.

Gregor I. McGregor, Boston, for Massachusetts Association of Conservation Commissions, amicus curiae, submitted a brief.

Norman P. Cohen, Town Counsel, Boston, and Russ V. Bradley, Jr., Boston, for the town of Lexington, amicus curiae, submitted a brief.

J. Douglas Murphy, Asst. Town Counsel, for the town of Barnstable, Hyannis, amicus curiae, submitted a brief.

Michael P. Last, Harlan M. Doliner, Boston and Carolyn Roundey, Watertown, for The Environment Committee of the Boston Bar Association, amicus curiae, submitted a brief.

Francis X. Bellotti, Atty. Gen., Stephen M. Leonard and Malcolm Pittman, Asst. Attys. Gen., for the Commonwealth, amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and BRAUCHER, WILKINS, LIACOS and ABRAMS, JJ.

HENNESSEY, Chief Justice.

In this case we review the decision of the conservation commission of the town of Dennis under a local wetlands protection by-law denying the plaintiffs' application to construct an access road over an old cranberry bog. This action is brought for relief in the nature of certiorari pursuant to G.L. c. 249, § 4. See Boston Edison Co. v. Boston Redevelopment Auth., --- Mass. ---- ^A, 371 N.E.2d 728 (1977). We affirm.

We begin by summarizing the pertinent facts. The plaintiffs are the owners of a forty acre tract of land on the north side of the town of Dennis. Part of an area locally known as "Simpkins Neck," ² the tract consists of approximately ten acres of marshland, 3.93 acres of overgrown cranberry bog, and twenty-six acres of wooded upland. The plaintiffs acquired this land parcel-by-parcel over a period of approximately ten years at a total cost of $38,200.

It is the plaintiffs' desire to subdivide the upland located on the Neck into house lots for single family residences. To this end, the plaintiffs on July 11, 1975, filed with the conservation commission of the town of Dennis (commission) a notice of intent to construct a road over adjoining marshlands in order to facilitate service to this proposed subdivision. At the present time, an old dirt road which crosses this area between the mainland and the Neck serves as the only access to and from the subject parcel. The plaintiffs consider this road inadequate, both in terms of construction and design, to furnish access to the Neck even for a limited use such as a single house.

By filing a notice of intent, the plaintiffs triggered commission proceedings under G.L. c. 131, § 40, the Commonwealth's Wetlands Protection Act, and under the town's cognate by-law, art. 15. ³ Public hearings were held on July 24, 1975, and on various dates later in the year. On December 2, 1975, the commission denied the plaintiffs' application under art. 15 because it believed that the road construction would have a "detrimental impact on the environment of both subject and contiguous lands." ⁴

In response to the commission's decision, the plaintiffs initiated this civil action in the Superior Court. After a hearing the judge issued an order remanding the matter to the commission for further hearings, introduction of new evidence, review and reconsideration by the commission, and preparation of a record in a form sufficient for judicial review. The court retained jurisdiction while directing that the commission complete hearings and file its decision with the court by August 12, 1977.

On July 29, 1977, further hearings on the plaintiffs' application commenced and following two days of testimony, the commission again disapproved the proposed road construction. In its written decision, the commission found that the road, if constructed, would create serious groundwater and water pollution problems. The commission determined, in addition, that these effects would be compounded by whatever sewage flow might be generated by the proposed subdivision. On January 5, 1978, the case was returned to the Superior Court for a hearing on the merits, and, on February 3, 1978, judgment was entered dismissing the original complaint and upholding the decision of the commission. The case was transferred to this court on our own motion.

In this appeal the plaintiffs advance four basic arguments: (1) that the Dennis wetlands protection by-law, art. 15, is void under the Home Rule Amendment because it is inconsistent with both the Zoning Enabling Act, c. 40A, and the Commonwealth's Wetlands Protection Act; (2) that the commission was biased in its consideration of the plaintiffs' application for a construction permit; (3) that the commission lacked substantial evidence to justify disapproval of the proposed access road; and (4) that such denial constituted an unconstitutional taking of the plaintiffs' property. Because we find all of these contentions unpersuasive, we conclude that the commission's order is to be affirmed.

1. Home Rule. Under the terms of the Home Rule Amendment, "(a)ny city or town may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it, which is not inconsistent with the constitution or laws enacted by the general court in conformity with powers reserved to the general court . . . and which is not denied, either expressly or by clear implication, to the city or town by its charter." Art. 2, § 6, of the Amendments to the Constitution of the Commonwealth, as amended by art. 89 of the Amendments. See Beard v. Salisbury, --- Mass. ---- ^B, 392 N.E.2d 832 (1979); Anderson v. City of Boston, --- Mass. ---- ^C, 380 N.E.2d 628 (1978); Bloom v. Worcester, 363 Mass. 136, 293 N.E.2d 268 (1973). Relying on this constitutional provision, the plaintiffs assert that the Dennis wetlands protection by-law is unlawful because it conflicts with two separate chapters of the General Laws. We consider each claim on its own.

First, the plaintiffs maintain that, because art. 15 regulates land use, it is by nature a zoning enactment. Since G.L. c. 40A preempts the manner and method in which a municipality may exercise its zoning power, Canton v. Bruno, 361 Mass. 598, 282 N.E.2d 87 (1972), the plaintiffs conclude that art. 15 circumvents the Legislature's mandate inasmuch as the procedures either directed or implied by the by-law are not identical to those of the zoning statute. Observing that this court has approved other towns' wetland by-laws as exercises of the zoning power, e. g., MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512, 340 N.E.2d 487 (1976); Turnpike Realty Co. v. Dedham, 362 Mass. 221, 284 N.E.2d 891 (1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 908, 34 L.Ed.2d 689 (1973); Golden v. Selectmen of Falmouth, 358 Mass. 519, 265 N.E.2d 573 (1970), the plaintiffs urge the generalized view that all local wetlands enactments are zoning measures and must comply with the procedural protections of G.L. c. 40A. ⁵

We reject this argument. We do not consider all ordinances or by-laws that regulate land use to be zoning laws, and we do not view art. 15 to be a zoning enactment. The thrust of art. 15, we discern, is to give the town conservation commission, a body created under G.L. c. 131, § 40, the power to permit or to disallow "any removal, dredging, filling, or altering of subject lands within the town" in accord with the stated purpose of protecting the local foreshores and wetlands. In its present form, and particularly as applied in this case, art. 15 is comparable to an earth removal enactment, a kind of general by-law expressly permitted by statute. G.L. c. 40, § 21 (17). ⁶ Notably adoption of such by-laws or ordinances has been determined valid by this court even in those instances where the town has a zoning by-law. Beard v. Salisbury, --- Mass. ----, ---- n.7 ^D, 392 N.E.2d 832 (1979); Byrne v. Middleborough, 364 Mass. 331, 334, 304 N.E.2d 194 (1973). It is, of course, clear that nonzoning earth removal enactments need not comply with the prescriptions stated in G.L. c. 40A, since the requirements of the zoning laws are applicable Only if a town chooses to adopt a zoning by-law. Cf. Canton v. Bruno, 361 Mass. 598, 603, 282 N.E.2d 87 (1972).

Apart from this consideration, however, we should be reluctant to classify the instant by-law as a zoning measure for the reason that art. 15 manifests neither the purpose nor the effects of a zoning regulation. The Dennis by-law does not prohibit or permit any particular listed uses of land or the construction of buildings or the location of businesses or residences in a comprehensive fashion. On its face it does not deny or invite permission to build any structure. It does not regulate density. Instead, it specifies that permission be obtained from the commission based on factual circumstances surrounding individual applications.

Significantly, art. 15's impact on land use follows only from its dominant purpose to protect wetlands values e. g., public or private water supply, groundwater, flood control, erosion control, storm damage water pollution, fisheries, shellfish, wildlife, recreation, and esthetics. These wetland values, moreover, do not include air pollution, noise, demands for sewers and other municipal services or the character of the community and the compatibility of nearby land uses, all typical of the concerns usually reflected in the zoning process.

The instant case, moreover, is readily distinguishable from the facts in Rayco Inv. Corp. v. Selectmen of Raynham, 368 Mass. 385, 331 N.E.2d 910 (1975), the case on which the plaintiffs ground their contention that by-laws regulating land use can be enacted only pursuant to the Zoning Enabling Act. In Rayco this court...