Town of Rutland v. Fife

• Citation: 416 N.E.2d 518,11 Mass.App.Ct. 341
• Parties: TOWN OF RUTLAND v. Phyllis H. FIFE.
• Decision Date: 13 February 1981
• Court: Appeals Court of Massachusetts

Page 518

416 N.E.2d 518

11 Mass.App.Ct. 341

TOWN OF RUTLAND v. Phyllis H. FIFE.

Appeals Court of Massachusetts, Worcester.

Argued Oct. 14, 1980.

Decided Feb. 13, 1981.

Gregor I. McGregor, Wellesley, for defendant.

Francis J. Cranston, Town Counsel, Barre, for plaintiff.

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

Before BROWN, PERRETTA and KASS, JJ.

KASS, Justice.

In this appeal from a summary judgment entered in favor of Phyllis H. Fife, a land owner in Rutland, the town raises questions concerning the extent of the territorial jurisdiction of municipal conservation commissions under the Wetlands Protection Act, G.L. c. 131, § 40. The relevant facts are stipulated.

In 1973, Fife bought a lot containing approximately 2.4 acres adjoining Demond Pond in Rutland. During July of 1977, she submitted plans for the placement on the site of a mobile home and the installation of a septic system. Fife also applied to dig a water well on the property. The board of health of Rutland issued a permit to Fife on July 8, 1977, for her well and on September 15, 1977, for the installation of a septic tank. Fife obtained a building permit on October 15, 1977. Contractors whom she hired proceeded to work on the site, including the laying down of gravel for her driveway, piping and grading for the concrete foundation pad which would support the mobile home, installation of a drainage trench, and pouring of the foundation.

On December 9, 1977, the conservation commission issued a cease and desist order requiring that Fife proceed no further until such time as the conservation commission should issue an "order of conditions" regulating the work. ^* See G.L. c. 131, § 40. Under protest, Fife filed with the conservation commission a "notice of intent," the prescribed document for obtaining an order of conditions. See County Commrs. of Bristol v. Conservation Commn. of Dartmouth, --- Mass. ---, --- - --- ^a, 405 N.E.2d 637 (1980); 310 Code Mass.Regs. §§ 10.03(1) and 10.05(1) (1978). The conservation commission declined to issue an order of conditions and Fife determined to challenge the jurisdiction of the conservation commission by taking further steps toward occupancy of her mobile home. In response the conservation commission filed a complaint which sought to enjoin further construction work and occupation of the home.

If the work Fife did, and proposes to do, is not within an area protected by G.L. c. 131, § 40, a conservation commission is without jurisdiction to interfere. Section 40, the first sentence of which we set forth in the margin, ¹ protects three categories of wetlands: (1) land areas bordering on water bodies; (2) land under water bodies; and (3) land subject to tidal action, coastal storm flowage or flooding. In this case we are concerned with the first of these categories, that is, that portion of the statute which says that, "no person shall ... alter any ... fresh water wetland ... or swamp bordering on ... any ... pond ...." No one suggests that the land is under a water body or subject to tidal action, coastal storm flowage or flooding. The status of the land as a fresh water wetland or swamp does not alone render it subject to the jurisdiction of a conservation commission; it must also "border" on a water body, in this case a pond. See for an illustrated explication, Massachusetts Audubon Society, A Guide to Understanding and Administering the Massachusetts Wetlands Protection Act 2-8 (1977).

The statute (§ 40) uses words and phrases applicable to the case at bar which are less than self-defining: e. g., "bordering," "bank," "freshwater wetland" and "swamp." The latter two terms are defined in the statute and we shall return to them later in this opinion. The words "bordering" and "bank" are defined in regulations promulgated by the Department of Environmental Quality Engineering. 310 Code Mass.Regs. 10.02(4) and (6) (1978). ² "Bordering" is defined as including any land within "100 feet horizontally landward from the bank of any ... swamp bordering the ... pond ...." ³ It is irresistible to observe that one becomes mired in hopeless circularity when the word "bordering" is defined in terms of a beach, dune, flat, marsh, meadow or swamp "bordering" the ocean, estuary, creek, etc.

Fife reads the department's definition of "bordering" as placing land more than 100 feet distant from the edge of a pond beyond the reach of a conservation commission. Whatever the regulation may mean, neither its plain words nor common sense support that conclusion. ⁴ Many, if not most, beaches, dunes, flats, marshes, meadows and swamps are more than 100 feet wide. We think the key to the meaning of "bordering" is in the definition of "bank" which appears at 310 Code Mass.Regs. 10.02(4) (1978). There "bank" is defined "as land adjoining any body of water which serves to confine said water." Thus "bordering" means within a 100-foot rim or strip around the confining edge of in this case Demond Pond. ⁵ If, as to Fife's lot, the first 100 feet from the bank of Demond Pond are wetland in the statutory sense and the remainder of her lot is wetland, then the conservation commission has jurisdiction over Fife's entire lot. If the first 100 feet back from the edge of the pond is not wetland, then Fife's lot is not subject to the conservation commission's jurisdiction, even though a portion of her lot more than 100 feet distant from the pond has the physical characteristics of a wetland.

Since Fife's land is contiguous to the bank of Demond Pond and, therefore, "borders" the pond, the question before the judge was whether any portion of the locus within the 100-foot zone is wetland in the statutory sense.

"Freshwater wetlands," as defined in G.L. c. 131, § 40, as amended, include "swamps." The term "swamps," as defined in § 40, means (1) "areas where ground water is at or near the surface of the ground for a significant part of the growing season or where runoff water from surface drainage frequently collects above the soil surface, and where a significant part of the vegetational community is made up of" certain indicator plants. ⁶ (Emphasis added).

In the proceedings before the judge on Fife's motion for summary judgment, the parties stipulated that facts disclosed by exhibits attached to the parties' trial briefs were stipulated facts for purposes of the judge's consideration of the motion for summary judgment. No document entitled "Stipulation" appears in the record but the text of the judgment itself says that the court "treats" the material in the trial briefs as stipulated facts and exhibits. That the judge did so with the consent of the parties is borne out by a stipulation filed by the parties including those briefs and exhibits in the record on appeal. That stipulation acknowledges the reference to the briefs and exhibits which appears in the judgment. Although most often summary judgment rests on affidavits to show that there is no genuine issue as to any material facts, other materials, e. g., pleadings, interrogatories, and depositions may establish that no material fact is in dispute. Community Natl. Bank v. Dawes, 369 Mass. 550, 553-556, 340 N.E.2d 892 (1976). Mass.R.Civ.P. 56, 365 Mass. 824 (1974). Smith and Zobel, Rules Practice § 56.1 (1977). Stipulations are among such supporting materials. Stubblefield v. Johnson-Fagg, Inc., 379 F.2d 270, 272 (10th Cir. 1967). Munoz v. International Alliance of Theatrical Stage Employees, 563 F.2d 205, 213 (5th Cir. 1977). 10 Wright and Miller, Federal Practice and Procedure § 2724 (1973).

Among the documents ⁷ placed before the court only one touched on the criteria established by G.L. c. 131, § 40, for a protectable wetland: a letter to Rutland's town counsel from Ronald L. Lavigne, who identified himself as an environmental consultant and registered sanitarian. In view of the peculiar procedural circumstances under which the Lavigne letter was made available to the judge, i. e., by stipulation, the statements of fact are not subject to the...