Opinion
21-P-514
03-23-2022
BOSTON CLEAR WATER COMPANY, LLC v. CONSERVATION COMMISSION OF LYNNFIELD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case raises issues regarding the appropriateness of an enforcement order issued by the defendant conservation commission of Lynnfield (conservation commission) pursuant to State and local regulations under the Wetlands Protection Act, G. L. c. 131, § 40. The alleged violations include (1) the placement of a bench in a "no disturb zone," within twenty-five feet of an acknowledged wetland, and (2) the disturbance of soil and related vegetation within the one hundred foot "buffer zone" adjacent to that wetland -- which resulted when the plaintiff Boston Clear Water Company, LLC (BCW) dragged or transported a large cross up a hill on its property.
BCW challenged the enforcement order on several grounds -- in particular, that the placement of the bench caused no disturbance, and that there is no factual support for the charge that material alterations occurred when BCW transported the cross up the hill. On certiorari review, a judge of the Superior Court affirmed the enforcement order. For the reasons that follow, we also affirm the enforcement order, but on somewhat different grounds than the Superior Court judge. In particular, under the circumstances here, BCW did not violate the applicable Lynnfield bylaw or its associated local regulations; however, there were sufficient grounds for the conservation commission to find that BCW should have filed a notice of intent under the State wetlands regulations, because material alterations occurred within the one hundred foot buffer zone established by 310 Code Mass. Regs. § 10.02(b) (2014).
Background. The plaintiff, BCW, is a commercial entity that operates a water distribution business in the town of Lynnfield, selling spring water to consumers and wholesale bottlers. BCW's property -- approximately two acres of land -- includes a spring, which is the source of the water that BCW sells. The spring has been used for this purpose since 1901, although the current owner purchased the property in 2014.
There is a considerable history between the parties, including at least two cases that have previously reached this court. See Boston Clear Water Co. v. Lynnfield, 100 Mass. App. Ct. 657 (2022) ; Boston Clear Water Co. v. Conservation Comm'n of Lynnfield, 97 Mass. App. Ct. 1116 (2020). None of the prior history is particularly relevant to the current dispute.
This case began on June 18, 2019, when the chairman of the conservation commission, upon hearing of activity on BCW's property, visited the property with the conservation commission's field inspector. While there, they observed (1) that granite benches had been installed approximately fifteen feet from the spring; (2) that a "path" had been created on a hill located within one hundred feet of the spring; the path was evidenced by scraped brush, damaged root balls, and downed trees; and (3) that an eighteen-foot cross had been installed on the hill. That evening, the conservation commission met and issued an enforcement order to BCW. The enforcement order stated that "activity [was] conducted in an area subject to protection under c. 131, § 40 [,] or the buffer zone without approval." As its basis, the enforcement order listed "[u]npermitted tree removal, path construction and installation of granite benches." The enforcement order also directed BCW to stop its activity, and to appear at a July 16, 2019 conservation commission meeting.
Conservation commissions have the authority to issue enforcement orders to correct violations of the Wetlands Protection Act and associated regulations. See G. L. c. 131, § 40 ; 310 Code Mass. Regs. § 10.08 (2014).
Prior to the July 2019 meeting, BCW sent a letter to the conservation commission, which argued that its actions had not had any material impact on the wetlands and asked the conservation commission to rescind the enforcement order as "unfounded and baseless." The conservation commission responded with a letter of its own, which it read at the July 2019 meeting. In the letter and during discussion at the meeting, the conservation commission stated that the placement of the granite benches and the cross were "not the reason for the enforcement order." Rather, the enforcement order was based on the "clearing and disturbing of ... a no-disturb buffer zone, 100-foot extended."
At the meeting, BCW's counsel argued that there was no evidence of a disturbance that would cause erosion on its property. In response, the conservation commission expressed concern regarding "the piles of the stuff that was scraped to the side" of the path. BCW did not dispute that such piles existed, but argued that only "leaves and dead trees and limbs and brush" were disturbed. The conservation commission replied, among other things, that "the brush is what holds the soil together so that the rain doesn't wash it down the hill into a resource area."
At the conclusion of the meeting, the conservation commission refused to rescind the enforcement order, and specifically directed BCW to do four things to bring its property into compliance: (1) remove the debris piles, (2) install erosion controls on the ridge of the hill, (3) install erosion control at the bottom of the path, and (4) spread mulch or hay on the bare soil to restore the understory. Following the meeting, the conservation commission's counsel repeatedly emailed BCW's counsel that the four conditions must be satisfied or fines would begin accruing as of July 24, 2019. BCW's responses did not address its compliance (or lack thereof) with the conditions imposed, but instead contained assurances that no erosion was occurring on its property. On October 4, 2019, the conservation commission's field inspector reviewed the property and concluded that none of the four conditions had been satisfied.
In August 2019, BCW filed a certiorari action in the Superior Court seeking to overturn the enforcement order. In January 2021, the judge granted the conservation commission's motion for judgment on the pleadings. The judge found that the enforcement order was justified due to (1) the placement of the benches in the no-disturb zone, and (2) the creation of a new path that "increased the risk of erosion within the 100-foot buffer zone." The judge also found that the conservation commission had not trespassed during its June 2019 inspection of the property, noting a preexisting order of conditions that allowed the conservation commission to enter and inspect BCW's property. This appeal followed.
Discussion. 1. The enforcement order. BCW argues that the conservation commission improperly issued the enforcement order because there was insufficient evidence that BCW violated wetland protection regulations. We disagree.
"[T]he standard of review for a certiorari action should be extremely deferential to the commission." Revere v. Massachusetts Gaming Comm'n, 476 Mass. 591, 605 (2017). When reviewing "discretionary action by the commission pursuant to its undisputed authority to enforce the [Wetlands Protection Act] within the town," the question before us is whether the conservation commission acted arbitrarily and capriciously. Garrity v. Conservation Comm'n of Hingham, 462 Mass. 779, 792 (2012). A decision is arbitrary and capricious if "there is no ground which ‘reasonable men might deem proper’ to support it" (citation omitted). T.D.J. Dev. Corp. v. Conservation Comm'n of N. Andover, 36 Mass. App. Ct. 124, 128 (1994). Here, we conclude that the issuance of the enforcement order was not arbitrary and capricious -- not because BCW violated any Lynnfield wetlands bylaw or associated regulations, but rather because the order was based on evidence that BCW had materially altered an area within the one hundred foot buffer zone established by State regulation.
a. Statutory and regulatory framework. The Massachusetts Wetlands Protection Act, G. L. c. 131, § 40, requires that anyone seeking to "alter" a protected water source must file a notice of intent with the relevant conservation commission prior to such alteration. The State Wetlands Protection Act regulations require such a notice of intent for any alteration occurring within one hundred feet of a protected water source, other than "minor activities." 310 Code Mass. Regs. § 10.02(2)(b). Pursuant to the State regulations, to alter means "to change the condition" of a protected area, including "the changing of pre-existing drainage characteristics ... [and] the destruction of vegetation." 310 Code Mass. Regs. § 10.04 (2014). Accordingly, individuals seeking to conduct any material work within one hundred feet of a wetlands area must file a notice of intent with the local conservation commission. See 310 Code Mass. Regs. §§ 10.02(2)(b), 10.05(4)(1).
The State regulation lists numerous "minor activities" that do not require a notice of intent, including but not limited to "[u]npaved pedestrian walkways less than 30 inches wide for private use," fencing, and planting native plants. 310 Code Mass. Regs. § 10.02(2)(b)(2). BCW has not argued that the activities at issue fall within the definition of "minor activities," and we accordingly do not address the question.
The conservation commission has also issued regulations, pursuant to the town's bylaws, that impose additional protections beyond those imposed by the Wetlands Protection Act (local regulations). In particular, local regulation § 320-2 creates (1) a no-disturb zone within twenty-five feet of a resource area, and (2) a no-build zone within fifty feet of a resource area. Section 320-2 also allows the conservation commission to expand these protections up to one hundred feet from a resource area under certain circumstances. As to BCW's property, the conservation commission had previously exercised its discretion to expand the no-build zone to extend one hundred feet from the spring. There is no evidence in the record, however, that the commission had extended the no-disturb zone for BCW's property, nor are there any findings demonstrating a reasonable basis for taking such a step.
A resource area, as defined in the local bylaws, includes ponds such as the one at issue here.
b. Alleged violations of the local regulations. In light of this legal framework, it is evident that the conservation commission did not have a basis for concluding that BCW had violated the local regulations. First, it was not proper to rely upon the placement of the benches within the twenty-five-foot no-disturb zone. The conservation commission repeatedly stated prior to this litigation that the benches were "not the basis" for the enforcement order. The commission was not free to adopt the contrary position once litigation commenced. The conservation commission's order is to be evaluated on the bases it contemporaneously advanced. See Doe, Sex Offender Registry Bd. No. 58574 v. Sex Offender Registry Bd., 98 Mass. App. Ct. 307, 313 (2020). Furthermore, we in any event are not convinced that the placement of the benches, which was done by hand on level ground and did not involve any digging or removal of vegetation, could be considered a violation of the no-disturb zone established by the conservation commission's regulations.
The no-disturb zone prohibits activities such as "grading, landscaping, planting, harvesting, mowing, vegetation clearing, cutting, trimming, filling, depositing any materials (including yard waste and construction debris), composting, excavating, construction, fencing, and installation of roads, driveways, and walkways."
Second, BCW's actions in clearing the "path" on the hill also did not violate the local regulations, because those actions were outside the twenty-five-foot no-disturb zone, and did not constitute "building" for purposes of the no-build zone that the conservation commission had previously extended to one hundred feet from the spring. The no-build zone prohibits, among other things, "the construction of any structure, installation of any impervious surface, and any work requiring a building permit." The basis for the enforcement order -- clearing the path -- did not involve any such construction. Accordingly, there was no violation of the local regulations that can support the enforcement order.
Although the conservation commission correspondence refers to an "extended no-disturb buffer zone," the record reflects that the conservation commission extended only the no-build zone to one hundred feet, not the no-disturb zone.
We note that the conservation commission specifically declined to rely on the installation of the cross as a basis for its enforcement order.
c. State regulations. That is not the end of the matter, however, because the conservation commission had a reasonable basis to issue the enforcement order based on the alteration of the one hundred foot buffer zone established by the State wetlands regulations. 310 Code Mass. Regs. § 10.04. The conservation commission observed that in bringing the cross up the hill, BCW had scraped ground cover into piles on the side of the path on the hill and exposed the soil. The conservation commission also observed, among other things, exposed root balls. By creating a path surrounded by piles of brush on a hillside, BCW may have changed the manner in which water runs off the hill and into the spring. BCW's actions could thus constitute "changing the pre-existing drainage characteristics" within the one hundred foot buffer zone. In light of our highly deferential standard of review, we conclude that the conservation commission's findings, which were supported by record evidence including photographs and statements by percipient witnesses, supplied a reasonable basis to issue the enforcement order. Accordingly, the conservation commission did not act arbitrarily or capriciously. See T.D.J. Dev. Corp., 36 Mass. App. Ct. at 128.
The conservation commission also cited "[u]npermitted tree removal" as a basis for issuing the enforcement order. As the record is unclear as to the extent and cause of the tree removal, we do not rely on tree removal as a basis for this decision.
d. Fines. BCW also argues that any fines associated with the enforcement order must be dismissed. The conservation commission has represented that it intends to fine BCW $300 per day under its bylaws for noncompliance with the enforcement order; however, the conservation commission has not taken any steps to actually impose such fines. If such fines were to be imposed civilly, Lynnfield would have to follow the procedures of G. L. c. 40, § 21D, which it has not yet done. See Maroney v. Planning Bd. of Haverhill, 97 Mass. App. Ct. 678, 686 (2020). We accordingly do not reach the issue. We note, however, that the Lynnfield bylaws state only that the conservation commission may assess fines for violations of "any provision of this bylaw, or regulations, permits or administrative orders issued hereunder." The bylaws do not state that the conservation commission may assess fines based upon violations of the State regulations. As discussed supra, there was no violation of local regulations here that could justify the imposition of fines.
2. Trespass. Finally, BCW argues that the enforcement order should be overturned because the chairman and the field inspector entered its property without permission on June 18, 2019. There are several reasons this contention is incorrect. Perhaps most fundamentally, a trespass only occurs if an individual enters another's property "without right ... after having been forbidden to do so by the person who has lawful control of said premises." G. L. c. 266, § 120. Here, there is no evidence that BCW forbade the conservation commission from entering its property prior to June 2019. To the contrary, the record indicates that BCW operated a commercial business on the property that is open to the public, and that the conservation commission employees accessed the property when it was open the public.
Judgment affirmed.