Opinion
14-P-45
04-24-2015
CUMMINGS PROPERTIES, LLC, & another v. CONSERVATION COMMISSION OF BEVERLY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from the judgment that entered in favor of the defendant (commission) as a result of rulings made on cross motions for judgment on the pleadings. They make two arguments on appeal. First, they argue that the judge (and the commission before him) erred by eliminating the requirement in § III.A.2.a of Beverly's wetlands protection regulations that a vernal pool be "temporary." Second, they contend in the alternative that they met their burden of establishing that Pools 1, 2, and 3 are not temporary. We agree that § III.A.2.a requires that a vernal pool be temporary in addition to having certain biologic features and, therefore, that the commission's omission of that portion of the regulation was error as a matter of law. We further conclude that the commission's decision lacked a finding as to whether Pools 1, 2, and 3 are permanent or temporary, and, moreover, that substantial evidence was lacking to support affirmatively any such determination. Accordingly, we reverse in part and remand for further proceedings consistent with this decision.
Sometimes also referred to as Ponds 1, 2, and 3.
Background. The plaintiffs brought this action as a complaint in the nature of certiorari pursuant to G. L. c. 249, § 4; for a declaratory judgment pursuant to G. L. c. 231A; and alleging a taking without just compensation based on, among other things, the commission's determination that Pools 1, 2, and 3 are vernal pools within the meaning of § III.A.2.a. The parties cross-moved for judgment on the pleadings, and those motions were decided in favor of the commission. Neither below, nor here on appeal, do the parties address the issues by reference to the three causes of action asserted in the complaint (certiorari complaint, declaratory judgment, and uncompensated taking). Instead, the issues have been framed as (1) whether the commission's interpretation of § III.A.2.a is arbitrary and capricious, and (2) whether substantial evidence supported the commission's determination that the plaintiffs failed to establish that the pools are not temporary. Accordingly, we address the issues as they have been framed.
The complaint also challenged the commission's decision with respect to Pools 4 and 8, together with the zones surrounding them. However, no argument is made with respect to those pools on appeal.
Discussion. 1. Commission's interpretation of § III.A.2.a. We review the commission's interpretation of § III.A.2.a to determine whether it was arbitrary and capricious. See Fafard v. Conservation Commn. of Reading, 41 Mass. App. Ct. 565, 567-568 (1996); FIC Homes of Blackstone, Inc. v. Conservation Commn. of Blackstone, 41 Mass. App. Ct. 681, 684 (1996). The interpretation of a regulation is a question of law which we review de novo. See Commonwealth v. B & M Fitzgerald Builders, Inc., 71 Mass. App. Ct. 486, 491 (2008), citing GPT-Acton, LLC v. Department of Envtl. Protection, 64 Mass. App. Ct. 103, 106 (2005). Although we accord deference to an agency's interpretation of the regulations it is charged with carrying out, the "[i]nterpretation of administrative regulations is a matter of law to be decided by the court." Toubiana v. Priestly, 402 Mass. 84, 90 (1988), citing Corsetti v. Stone Co., 396 Mass. 1, 12 (1985). "We interpret a regulation in the same manner as a statute, and according to traditional rules of construction." Warcewicz v. Department of Envtl. Protection, 410 Mass. 548, 550 (1991). "When the language of a regulation is 'plain it must be given its ordinary meaning, and the language used constitutes the principal source of insight into regulatory purpose.'" Young v. Patukonis, 24 Mass. App. Ct. 907, 908 (1987), quoting from Morin v. Commissioner of Pub. Welfare, 16 Mass. App. Ct. 20, 24 (1983). "Where reasonably possible, no portion of the language of a regulation should be treated as surplusage." Warcewicz v. Department of Envtl. Protection, 410 Mass. at 551, quoting from Bottomley v. Division of Administrative Law Appeals, 22 Mass. App. Ct. 652, 657 (1986).
With these principles in hand, we turn to the specific provision at issue in this case. Section III.A.2.a of Beverly's wetlands regulations (2005) defines vernal pools as follows:
"A Vernal Pool is a temporary freshwater body, which, in most years holds water for a minimum of two (2) months and is free of established, reproducing fish populations, and is protected under this Ordinance if it meets any of the . . . [biologic] criteria [set out in the margin].""A vernal pool is a temporary freshwater body" is a grammatically straightforward phrase in which two concepts must be satisfied in order to constitute a vernal pool. The water must be a "freshwater body" (about which there is no dispute in this case) that is "temporary" (about which there is). We see no grammatically principled way in which to read "temporary" out of the phrase without turning that word into meaningless surplusage.
"I. The Vernal Pool contains evidence of the presence of any one (1) of the following obligate indicator species: Spotted Salamander, Blue-Spotted Salamander, Jefferson Salamander, Marbled Salamander, Wood Frog or Fairy Shrimp, or[]There appears to be no dispute that Pools 1, 2, and 3 meet the biologic requirements.
"II. In the absence of any obligate indicator species, the Vernal Pool contains evidence of two (2) of any of the following facultative indicator species: Spring Peeper, American Toad, Green Frog, Pickerel Frog, Gray Tree Frog, Four-Toed Salamader, Spotted Turtle, Caddisfly larvae or cases of Caddisfly larvae, Dragonfly or Damselfly larvae or shed skins (exuvia) of Dragonfly or Damselfly larvae, adults, juveniles or shells of either Fingernail Clams or Amphibious, air-breathing Snails."
In addition, a vernal pool must hold water in most years for a minimum of two months and be free of established, reproducing fish populations. It must also meet certain additional biologic criteria. See note 4, supra, and accompanying text.
The commission argues, essentially, that, in order to further the purposes of Beverly's wetlands regulations, the word "temporary" should be read out of the definition of vernal pool. Although we acknowledge the broad purposes of the regulations, we are not of the view that they permit us (or the commission) to abandon the language of the regulation. This is not a case where the plain language of the regulation defeats the purposes of the State requirements. See Massachusetts Teachers' Retirement Sys. v. Contributory Retirement Appeal Bd., 466 Mass. 292, 301 (2013), quoting from Duarte v. Commissioner of Rev., 451 Mass. 399, 408 (2008) ("Only an 'agency regulation that is contrary to the plain language of the statute and its underlying purpose may be rejected by the courts'"). Similarly, although the commission's decision reasoned that § III.A.2.a does not track the 2009 revisions to the Massachusetts Division of Fisheries and Wildlife - Natural Heritage and Endangered Species Program (NHESP) certification procedures and requirements, that too is no basis upon which to disregard the language of the regulation. In any event, had Beverly wished to track the NHESP procedures verbatim, it certainly would have been an easy matter to do so.
The parties appear to agree that Section III.A.2.a, drafted in early 2003, was intended to track the language of the State requirements then in effect. To the extent the commission rests upon its determination that "[u]nder the 2009 revisions to the certification criteria, documentation of the pool dry is no longer required," it was the commission's burden to provide an adequate record to support this claim, and to make adequate appellate argument. Our own reading of the 2000 and 2009 NHESP guidelines, provided in the addendum to the city's supplemental brief, does not reveal the basis for the commission's reading.
2. Evidence regarding Pools 1, 2, and 3. The plaintiffs argue that there was not substantial evidence to support the commission's determination that Pools 1, 2, and 3 are vernal. See Fafard, 41 Mass. App. Ct. at 568. The plaintiffs had the burden of establishing that Pools 1, 2, and 3 were not temporary, which the commission took to mean that the plaintiffs were required to prove (in an affirmative sense) that the pools are permanent.
We requested supplemental briefs concerning the burden of proof. We agree with the commission that the burden of proof rested with the plaintiffs. Although there is no explicit authority to which we have been directed that places the burden of proof on the applicant with respect to an Abbreviated Notice of Resource Area Delineation (ANRAD), the burden is placed uniformly on the proponent of a project at all other stages of the process. See, e.g., 310 Code Mass. Regs. § 10.02(2)(a)2 (2008) (burden with respect to exemption from Notice of Intent); 310 Code Mass. Regs. § 10.02(5) (2008) (burden regarding compliance with stormwater management standards); 310 Code Mass. Regs. § 10.03(1) (2005) (burden of proof for Notice of Intent). Given that an ANRAD may be used alternatively to a Notice of Intent in certain instances at the proponent's option, see, e.g., 310 Code Mass. Regs. § 10.05(3)(a) (2008), it only makes sense that the burden of proof be uniform in both cases.
As an initial matter, it does not appear the commission made a finding as to whether Pools 1, 2, and 3 are permanent or temporary. Rather, it concluded that there was "insufficient evidence to determine whether Pool 1 and 3 contain permanent water at this time." This conclusion is not the same as finding that the pools are permanent or, for that matter, that they are temporary. On this basis alone, remand to the commission is appropriate so that it may make a specific finding regarding whether the applicant carried its burden to show that Pools 1, 2, and 3 are not temporary, consistent with our interpretation of § III.A.2.a.
It appears to be a typographical error that Pool 2 is not included in this sentence. Earlier in the same paragraph, the commission made a finding that "the applicant has not provided sufficient evidence to support the claim that pools [1], [2] and . . . 3 . . . are permanent."
Remand is particularly appropriate here because the commission's own expert, Mary Rimmer, expressly stated that her opinion that Pools 1, 2, and 3 are vernal was "dependent upon the commission determining the pools do not have to be temporary." In other words, her opinion depended on what we have determined is a legally erroneous interpretation of § III.A.2.a. Moreover, except for some affirmative evidence of vegetative cover on Pool 2, it does not appear that there was any affirmative evidence that the pools are temporary. By contrast, as the commission acknowledged, the plaintiffs provided affirmative evidence in the form of maps, plans, photographs, affidavits, and testimony supporting their claim that the pools are permanent, including observation of the pools during a particularly dry summer.
The plaintiffs conceded the presence of the biologic features required of vernal pools.
Conclusion. Insofar as the judgment dismisses the plaintiffs' complaint with respect to Pools 1, 2, and 3 and the zones surrounding them, the judgment is vacated, and an order shall enter remanding the matter to the commission for further proceedings consistent with our interpretation of § III.A.2.a of Beverly's wetlands protection regulations. In all other respects the judgment is affirmed.
So ordered.
By the Court (Green, Wolohojian & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 24, 2015.