Massachusetts Appeals Court Deals Blows to Decisions under Local Wetland Bylaws

Beveridge & Diamond, P.C. - Massachusetts Environmental, Land Use & Real Estate Alert, 2009

In two separate cases, the Massachusetts Appeals Court reversed decisions of local Conservation Commissions as overreaching under their local wetland protection bylaws. 

In one case, the Appeals Court ruled that the Lexington Conservation Commission had applied a heightened burden of proof in its rules and regulations that was not permitted under the bylaws.  In Conroy v. Conservation Commission of Lexington, 73 Mass. App. Ct. 552 (2009), the applicant sought to construct a single-family house on an undeveloped lot in Lexington bisected by an intermittent stream.  The applicant proposed to locate a house in the 50-foot buffer zone protected under the local wetland protection bylaw.  The Commission denied the project under its local bylaw.  The applicant appealed the adverse decision to the Superior Court, which reversed the Commission’s decision.  The Commission appealed that decision to the Appeals Court.

Although the bylaw provides that the applicant has the burden of proving by “a preponderance of the credible evidence” that the proposed work in the buffer zones would not harm interests protected by the bylaw, the rules and regulations promulgated by the Commission, supplemented with a commentary, hold the applicant to a tougher “clear and convincing standard” in determining whether to approve reductions in the buffer zone.  Although acknowledging the Commission’s power to promulgate rules and regulations to effectuate the purposes of the bylaw, and that deference was due to the Commission on its reasonable interpretation of its own bylaw, the Appeals Court found that the more stringent “clear and convincing” burden of proof used by the Commission in its rules conflicted with the lesser “preponderance of the credible evidence” standard that the town’s legislative body had promulgated and authorized.

The applicant did not get the whole result sought, however.  Despite the applicant’s request that the Appeals Court simply apply the correct “preponderance of the evidence” standard rather than remand the case to the Commission for further hearings, the Appeals Court opined that reversal was not necessarily required under that standard because the Commission relied, at least in part, on a publication concerning forest buffers in the Chesapeake Bay.  The Court dismissed the applicant’s argument that this publication was inapplicable, saying “[c]ommon sense suggests, at least until demonstrated otherwise, that trees function in the same way in Lexington as they do in the Chesapeake Bay Area, which stretches from New York to Virginia.”  Id. at 562-563. 

In a second case, the Appeals Court upheld a trial court decision in which the judge had determined that the evidence was “overwhelmingly” contrary to the Commission’s determination that the applicant had failed to meet its burden of proof.  In Pollard v. Conservation Commission of Norfolk, 73 Mass. App. Ct. 340 (2008), the applicant proposed to construct a single-family house on a property in Norfolk in which 97 percent of the property is subject to wetland regulation under the state wetland protection act and/or local wetland bylaw.

The applicant submitted to the Commission considerable unrebutted expert evidence through an environmental consulting and engineering firm.  The expert opined that the project would have “no impact” on the ability of the buffer zone to protect the interests protected by the bylaw and “fully complie[d]” with the requirements of the bylaw.  Through the consultant, the applicant provided a detailed discussion of the wetland functions and an individualized assessment of the impact of the proposed work on six specific wetland values and discussed the substantial mitigation efforts proposed.  No other party, including the Commission, presented any evidence.  Despite the uncontradicted evidence, the Commission issued an order of conditions denying permission for the project under its local bylaw, finding that the applicant had not satisfied its burden to demonstrate that the project would not impact the buffer zones.  The applicant appealed the Commission’s decision to the Superior Court, which overturned the Commission’s denial.  The Commission appealed the Superior Court’s decision.

The Commission argued that it was entitled to determine the probative value of evidence before it.  The Appeals Court did not disagree, noting that the Commission is not required to credit the opinion of an expert, even if it is uncontradicted.  However, the Appeals Court stated instead that the question was really whether the Commission determined the probative value of evidence in accordance with established legal principles.

The Appeals Court found that the Commission’s findings were insufficient to allow the Court to make a determination on whether it had complied with established legal principles and that the Commission failed to clarify the issue on appeal by identifying anything in the record to explain its rejection of the appellant’s evidence or the deficiencies it alleged with the evidence in the decision.  The Commission’s mere statements that the evidence was “not credible” and that the applicant “failed to sustain their burden,” were “not credibility determinations that are entitled to deference.”  Id. at 351.  The Appeals Court concluded that the “commission’s choice has left us unable to determine with any reasonable degree of certainty that its decision was arrived at with fairness and without predisposition.”  Id.  The Appeals Court affirmed the decision of the Superior Court overturning the Commission’s decision.      

For further information, contact Marc J. Goldstein at mgoldstein@bdlaw.com or Brian C. Levey at blevey@bdlaw.com.