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By John O. Cunningham
A conservation commission could not reject a developer's project application solely on the basis of its own policy barring development within 25 feet of wetland areas, the Appeals Court has decided.
The plaintiff developer argued that the Andover Conservation Commission's denial of a project permit was improperly based on a policy existing outside of the town's bylaws or any other regulatory framework.
The Appeals Court agreed, vacating the judgment by Superior Court Judge Barbara J. Rouse and remanding the case to the commission for further proceedings.
Judge Fernande R.V. Duffly wrote on behalf of the court that "a no-build zone 'policy' not lawfully adopted as a regulation, and containing no requirement of uniform application, cannot form the basis of the commission's denial in this case."
The nine-page decision is Fieldstone Meadows Development Corporation v. Conservation Commission of Andover, Lawyers Weekly No. 11-220-04. The full text of the ruling can be found on our website, www.masslawyersweekly.com.
Proper Roles
Howard P. Speicher of Boston, counsel for the plaintiff developer, said that the decision "delineates the proper role of local conservation commissions."
He also noted that rulings by conservation commissions are becoming more important to developers because "marginal land is often the only land available for development in desirable areas."
Local bylaws, according to Speicher, "have been the ace in the hole for towns seeking to turn down development projects" because of the procedural nuance that wetlands decisions by local conservation commissions are subject to a deferential standard of review in Superior Court.
"In this case, a proposed regulation was being imposed on an ad hoc basis as a policy of the commission," Speicher noted.
He added that "ad hoc decisions, by definition, are arbitrary."
Speicher suggested that some local commissions "have either cited policy or ignored it on a case-by-case basis in wetlands decisions."
But he added that the recent ruling should change the approach of those commissions that "saw limited certiorari review by the Superior Court as a license to exercise unlimited discretion" in turning down projects.
Thomas J. Urbelis of Boston, counsel for the defendant commission, could not be reached for comment prior to deadline.
Residential Area
The plaintiff, Fieldstone Meadows Development Corp., sought to develop a five-lot residential subdivision located near Porter Road in Andover, filing an application with the defendant Conservation Commission of Andover.
The application sought authorization to perform work on the land within 100 feet of a protected resource area, and it specifically outlined plans for a detention basin within 25 feet of vegetated wetlands.
The defendant denied the application on the basis of a commission policy providing for a minimum 25-foot no-build zone not adopted as a regulation.
In its decision denying the application, the defendant said that "effective Jan. 1, 1999, the Conservation Commission will expect proposals to locate no alteration or disturbance of land closer than 25 feet to a wetland boundary."
The commission decided that the developer's work could damage the protected area because it violated the "no-build" zone policy it was announcing.
Policy Insufficient
Duffly explained that the policy rationale for denying the developer's application was essentially arbitrary.
Citing prior precedent, the judge asserted that "[i]n the administration of controls limiting the use of land — as with any exercise of the police power — uniformity of standards and enforcement are of the essence."
She said that the decision to invoke a rigid policy without a foundation in regulation or bylaw was legally arbitrary.
The judge pointed to prior rulings, by way of example, that found planning boards to have exceeded their power when imposing requirements "beyond those established by the rules and regulations."
Duffly also rejected arguments by the defendant that the town bylaws delegated authority to regulate activity within a 100-foot buffer zone.
She noted that there was "nothing in these provisions or any other provisions of the town by-laws creating an absolute bar to activity within the 100-foot buffer zone."
The judge also cited provisions in the bylaws generally that related to development activities "likely to have significant or cumulative effect" upon protected environmental values, asserting that the defendant needed to make specific findings relative to any effect on those values.
"The commission's findings demonstrate no consideration of the particularities of the proposed detention basin or of the evidence as to the actual or potential effect of the proposed work on the adjacent wetlands," wrote Duffly.
"It is apparent, despite invocation of the town by-law as the ostensible basis for its decision, that the denial was in fact based entirely on the commission's assumption that only a 25-foot no-build zone will ensure that the proposed work will have no impact on the wetlands," the judge added.
By comparison, she noted another case allowing imposition of a 25-foot no-cut zone and 50-foot no-construction condition where there was a finding that proposed work would impact adjacent wetlands.
The judge said that the 25-foot no-build policy in the current case appeared to be based on "information obtained by certain unidentified commission members at a seminar they attended" on vegetated buffers for water quality.
She said that such a finding as to any particular project must be supported by substantial evidence, concluding that the evidence in the record was not sufficient to support the imposition of the policy.
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October 25, 2004
