Opinion
04-2576.
12-11-2012
PARKVIEW ELECTRONICS TRUST, LLC v. WINCHESTER CONSERVATION COMMISSION.
AMENDED MEMORANDUM OF DECISION AND ORDER ON THE PARTIES' CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS
MITCHELL H. KAPLAN, Justice.
This is an action in the nature of certiorari filed under G.L. c. 249, § 4. The plaintiff, Parkview Electronics Trust, LLC (Parkview), seeks to set aside three orders issued by the defendant Winchester Conservation Commission (the Commission) on the grounds that the Commission did not have jurisdiction to issue them. The first such order is: An Order of Resource Area Delineation dated May 14, 2004 (ORAD), it prompted Parkview to file this action. The second is dated May 14, 2006 and is an Enforcement Order (the Enforcement Order). The third is a photocopy of the Enforcement Order that includes a hand-written addition to it which is dated May 22, 2006 (the Amended Order; these three orders will be referred to collectively as the Orders). Parkview amended its complaint to request review of these latter two Orders as well as the ORAD. The case is now before the court on the parties' cross-motions for judgment on the pleadings.
FACTS
The relevant facts are not in dispute and may be summarized as follows. Parkview operates an industrial park in Winchester on which several businesses are located (the Park). The Park is nearby the Aberjona River. The Aberjona overflowed its banks and flooded the Park in both 1996 and 1998. Sometime thereafter Parkview consulted with the Winchester Conservation Administrator concerning the Park. There is some dispute as to whether this administrator told Parkview that the Park was not subject to the jurisdiction of the Commission or only that the Park was not within the one hundred year flood plain as shown on the flood insurance rate map. In any event, Parkview raised the elevation of its driveway from 25.5 feet above sea level to 28.1 feet above sea level to protect the Park from further flooding. An abutting landowner claimed that this raised driveway diverted water onto and damaged his property and complained to the Commission. The abutter's complaint apparently caused the Commission to consider its jurisdiction over the Park. The Commission issued the ORAD on May 14, 2004. The ORAD was in effect an assertion that the Commission had jurisdiction over the Park. On May 14, 2006, in response to sand barriers erected by a contractor to protect the Park from flood waters during a storm, the Commission issued the Enforcement Order which, among other things, ordered Parkview to return the Park to its original condition by removing the sand barrier. The contractor removed these barriers. On May 22, 2006, the handwritten Amended Order issued: it suggested that there would be further discussions regarding the driveway. During oral argument on this motion, the parties agreed that the driveway has never been the express subject of an enforcement order, although the underlying dispute between the parties concerning the Commission's jurisdiction over the Park continues unabated.
It is not clear that this disputed fact is relevant to any issue that must be resolved in this action, as Parkview does not argue that the Commission is estopped from arguing that it has jurisdiction over the Park as a consequence of anything said or done by this administrator.
On April 25, 2011, the Massachusetts Department of Environmental Protection wrote a letter to the Commission in which it stated that the driveway (which it refers to as a berm) was not within the 100-year flood plain shown on FEMA's Flood Insurance Rate Map (FIRM) in existence in 1999, and, therefore, the berm was not within the jurisdiction of the Wetlands Protection Act at that time; although the FIRM has since been amended and the berm is now within the flood plain.
DISCUSSION
The purpose of certiorari review is " to correct substantial errors of law apparent on the record adversely affecting material rights.... The words substantial error of law which adversely affects a material right are frequently repeated and emphasized in [appellate] cases." Higby/Fulton Vineyard, LLC v. Board of Health of Tisbury, 70 Mass.App.Ct. 848, 852 (2007)(internal citations and quotations omitted). Clearly, an order to return the driveway to its prior elevation adversely affects Parkview's material rights. The question to be decided in this case is whether Parkview's rights were adversely affected because the Commission made a substantial error of law.
Parkview argues at length that the Commission concluded that it had jurisdiction over the Park because it believed that the Park was within the 100-year flood plain and therefore covered by the Wetlands Protection Act, G.L. c. 131, § 40 (the Act). The Commission, however, does not argue that when the driveway was raised it was covered by the Act, but rather argues that the Commission's jurisdiction was also asserted under the applicable Winchester by-law and that by-law does encompass the land on which Parkview raised the driveway. The court does not believe that it has to wrestle with the question of whether the Commission asserted jurisdiction under the Act or the by-laws. In this case of certiorari review, the substantial rights of Parkview could be adversely and materially affected by an error of law only if the Commission did not have jurisdiction to issue the ORAD and subsequent Enforcement Order, regardless of whether it was mistaken as to the legal basis for its assertion of jurisdiction. " It is common ground that the town, under its by-law, could set wetland protection standards that were more demanding than those of the State scheme." Fafard v. Conservatin Commission of Reading, 41 Mass.App.Ct. 565, 568 (1996). As no one now argues that the Park was covered by the Act, the pertinent question is whether Park was covered by the applicable by-law.
Chapter 13 of the by-laws is entitled: Wetlands. The following provisions of chapter 13 appear potentially relevant to this dispute.
Section 1. is entitled: Purpose, and states: " The purpose of this by-law is to protect the wetlands ... and adjoining land ... by prior review and control of activities deemed to have an adverse effect upon wetland values ... collectively known as the interests protected by the by-law. Adverse effect may include, but are not limited to, one or more of the following: ...
(d) any action which will remove, fill, dredge or alter any area subject to this by-law and will result in any threat to the health, welfare or safety of the individual or the community ...; (f) any work in an area which would be flooded as a result of the 100 year storm event as that storm event is defined as part of the FEMA 100 year floodplan.
Section 2 provides definitions of the terms used in the Wetlands by-law. 2.14 states: " ‘ Flooding’ shall mean a temporary inundation of water or a rise in the surface of a body of water, such that it covers land not usually under water."
Section 3 is entitled: Jurisdiction. It states, in relevant part, " no person shall remove, fill, dredge, alter, or build ... upon any land subject to flooding or inundation by groundwater or surface water; ...
Parkview argues that unless " land subject to flooding" is limited to lands that are within the 100 year flood plain, the by-law is too vague to provide fair notice to a landowner that a planned alteration of its land is governed by the by-law and requires prior approval from the Commission. According to Parkview, absent some generally understood standard limiting the broad definition of flooding contained in the by-law, like the area within the 100 year flood plain, the definition of flooding used in the by-law would apply to every puddle, as a puddle would constitute land not usually covered by water. Parkview also points to Section 1 of the by-law which states that one of its purposes is to control work in an area that would be flooded in a 100 year storm and asserts that this suggests that the definition of flooding was intended to be so limited.
In support of this limiting construction of the by-law, Parkview cites Jenkins v. Town of Pepperell, 18 Mass.App.Ct. 265, 270 (1984) a zoning dispute in which the Appeals Court stated: " A distinction should be drawn between zoning schemes that, as here, simply contain an ambiguity as to which of a small, finite number of alternatives was intended, and those that are so inherently indefinite and vague as to violate constitutional principles." However, in Jenkins the Appeals Court did not find the zoning by-law constitutionally infirm, it found it ambiguous and then noted that the Town offered no extrinsic evidence to help resolve the ambiguity. The court does not find the by-law in this case to be so inherently vague as to be unconstitutional, at least as applied to the facts of this case.
Winchester could have limited it jurisdiction to only those lands subject to the Act, i.e., within the 100 year flood plain, but it chose not to do so. The by-law's purpose includes preventing work in the flood plain without prior appoval, but it is broader than that. It includes alterations in lands subject to flooding, when that alteration could affect the welfare of an individual or the community; for example by diverting water during a flood onto another property. There can be no doubt that the Park was subject to flooding, as it was flooded twice in the years immediately preceeding the raising of the driveway. Indeed, that is apparently why the elevation of the driveway was raised. Eventually, the FIRM flood plain was amended to incorporate the land in the Park which flooded in 1996 and 1998. Winchester could certainly adopt a by-law that gave its Conservation Commission jurisdiction included over land that flooded, but was not yet in the FIRM flood plain, which had not been revised in several years. While there may certainly be instances in which the Commission could stretch the application of the definition of flooding to apply to land that a property owner could not fairly anticipate would be covered, this is not such an instance, and the by-law is not so vague as to be facially defective.
ORDER
For the foregoing reasons, Parkview's motion for judgment on the pleadings is DENIED and the Commission's motion is ALLOWED and its assertion of jurisdiction over the Park is affirmed.