Bos. Clear Water Co. v. Conservation Comm'n of Lynnfield

100 Mass.App.Ct. 1129

184 N.E.3d 813 (Table)

BOSTON CLEAR WATER COMPANY, LLC

v.CONSERVATION COMMISSION OF LYNNFIELD.

21-P-514

Appeals Court of Massachusetts.

Entered: March 23, 2022.

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 2014.²

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.³ 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.

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."⁴ 310 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 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,...