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16-P-944                                               Appeals Court

  CAVE CORPORATION     vs.    CONSERVATION COMMISSION OF ATTLEBORO.


                               No. 16-P-944.

           Plymouth.         April 6, 2017. - July 14, 2017.

                Present:     Green, Blake, & Lemire, JJ.


Municipal Corporations, Conservation commission, By-laws and
     ordinances. Wetlands Protection Act.



     Civil action commenced in the Superior Court Department on
January 9, 2015.

     The case was heard by Richard J. Chin, J., on a motion for
judgment on the pleadings, and a motion for clarification or
reconsideration was considered by him.


    Matthew Watsky for the plaintiff.
    Rebekah Lacey for the defendant.


    GREEN, J.     When a municipal conservation commission fails

to act timely on a notice of intent for work affecting wetlands,

the applicant is entitled to seek relief from the Department of

Environmental Protection (DEP).       G. L. c. 131, § 40.   If, on the

applicant's request for relief, the DEP thereafter issues a
                                                                   2


superseding order of conditions authorizing the work described

in the notice of intent, the superseding order controls the work

under the Wetlands Protection Act (act), G. L. c. 131, § 40,

notwithstanding any more restrictive provisions of an otherwise

applicable municipal wetlands ordinance or by-law.   See Oyster

Creek Preservation, Inc. v. Conservation Commn. of Harwich, 449

Mass. 859, 865 (2007).   Cave Corporation (Cave), the plaintiff

in the present case, contends that such a superseding order

operated to divest the conservation commission of Attleboro

(commission) of all authority to regulate activity on the land

subject to the superseding order, even if the same land is also

the subject of a separate notice of intent on which the

commission acted timely.1   A judge of the Superior Court

disagreed, and we affirm.

     Background.   The Attleboro city council adopted the

Attleboro wetlands protection ordinance (ordinance) on October

2, 2001, and the commission, acting pursuant to authority

delegated by the ordinance, promulgated rules and regulations




     1
       Cave also contends that the provisions of the Attleboro
wetlands protection ordinance are no more restrictive than those
of the act such that the DEP's superseding order on the separate
notice of intent controls in any event, see DeGrace v.
Conservation Commn. of Harwich, 31 Mass. App. Ct. 132, 136
(1991), and that the record does not contain substantial
evidence supporting the conditions imposed by the commission,
even if it had authority to regulate the land at issue.
                                                                   3


thereafter.    Section 18-1.1 of the ordinance recites as its

purpose:

     "to protect the wetlands, water resources, and adjoining
     land areas in Attleboro by controlling activities deemed by
     the Conservation Commission likely to have a significant or
     cumulative effect upon resource area values, including but
     not limited to the following: public or private water
     supply, groundwater, flood control, erosion and
     sedimentation control, storm damage prevention including
     coastal storm flowage, water quality, water pollution
     control, fisheries, wildlife habitat, rare species habitat
     including rare plant species, agriculture, aquaculture, and
     recreation values, deemed important to the community
     (collectively, the 'resource areas or values protected by
     this ordinance')."

     Among other provisions, § 18-1.8 of the ordinance imposes a

requirement that any application for a permit to perform work in

any area potentially affecting wetlands delineate and maintain

"a 25-foot wide continuous and undisturbed Wetlands Protection

Zone measured from and parallel to the [wetlands] resource area

boundary."2

     On December 18, 2013, Cave filed a notice of intent with

the commission proposing construction of a roadway, drainage,

infrastructure, and utilities associated with a subdivision

development.   The proposed project included 175 linear feet of

new roadway, with connections to a water main to serve seven new

lots, but did not propose any work on the individual lots

related to the construction of houses on the lots.


     2
       The same requirement is repeated in § 4.9 of the ordinance
rules and regulations.
                                                                     4


     The notice of intent acknowledged the presence of vegetated

wetlands along the westerly side of the project site and a

twenty-five-foot wetlands protection zone along the boundary of

those vegetated wetlands; it also recognized two vernal pools to

the south of the proposed roadway, a 125-foot protected area

surrounding each of the vernal pools,3 and a riverfront area4

bordering the southerly part of the project site.

     After several extensions of time for the commission's

consideration of the proposal, and several modifications to the

proposed work, Cave submitted a final revised proposal to the

commission on October 16, 2014.    Following a hearing on November

5, 2014, the commission voted to approve the roadway extension

project, with conditions.   The commission issued its order of

conditions on November 12, 2014.   Of particular note among the

conditions, for present purposes, is condition number twenty-

     3
       As defined in the ordinance, a "vernal pool" includes the
basin depression itself and an area of vernal pool habitat
extending 100 feet from the boundary of the mean annual boundary
of the depression; the ordinance rules and regulations prohibit
disturbance of any land within both the vernal pool basin and
its surrounding 100-foot habitat area. The ordinance rules and
regulations further prohibit any disturbance of land within the
additional twenty-five-foot wetlands protection zone extending
beyond the boundary of the defined vernal pool (including the
100-foot habitat perimeter), so that the total area of
protection extends 125 feet from the boundary of the basin
depression.
     4
       The act defines "riverfront area" as an "area of land
situated between a river's mean annual high-water line and a
parallel line located [200] feet away." G. L. c. 131, § 40,
inserted by St. 1996, c. 258, § 18.
                                                                   5


nine, which prohibited any disturbance of the area within 125

feet of the two vernal pools based on a finding that "any

disturbance to the [125-foot area] on the subject parcels of

land will result in cumulative adverse impacts upon the resource

area values."   Cave appealed the order of conditions for the

roadway extension project to the DEP, seeking a superseding

order of conditions,5 and, on February 26, 2015, the DEP approved

the work proposed in Cave's notice of intent for the roadway

extension project, subject to conditions set forth in a

superseding order of conditions.

     While the roadway extension notice of intent was under

consideration by the commission, but before it was approved,

Cave also submitted on October 14, 2014, notices of intent for

work (including proposed construction of homes and related

improvements) on lots 4, 5, 6, and 7 of the proposed

subdivision.6   Thereafter, the commission took no action on the

notices of intent for those lots until the evening of November

5, 2014, when it opened a hearing.   However, that date was

beyond the twenty-one-day period within which a hearing must be


     5
       Cave's request for a superseding order of conditions for
the roadway extension project does not appear in the record,
although there appears to be no dispute that it was timely made.
     6
       Cave attempted to file the notices of intent on October
10, 2014, but the commission did not accept them as filed until
October 14, 2014, for procedural reasons. Nothing turns on
this.
                                                                     6


held under the act.   See G. L. c. 131, § 40; Oyster Creek

Preservation, Inc. v. Conservation Commn. of Harwich, 449 Mass.

at 863.   Accordingly, on November 5, 2014, prior to commencement

of the hearing that evening, Cave initiated a request to the DEP

for a superseding order of conditions.7   Thereafter, on February

26, 2015, the DEP approved the work proposed in Cave's notice of

intent for lot 7, subject to conditions set forth in a

superseding order of conditions.8   In practical effect, however,

condition number twenty-nine of the order of conditions issued

by the commission for the roadway extension project precludes

construction of the driveway proposed to serve lot 7 because it

cuts through a portion of one of the 125-foot protected areas

located on lot 7, and it similarly precludes certain other work

proposed within that area.

     By complaint filed in the Superior Court on January 9,

2015, Cave sought certiorari review and declaratory relief.     In

substance, Cave sought a declaration that the superseding order

of conditions issued by the DEP with respect to lot 7 governed


     7
       At the hearing on November 5, 2014, the commission
considered the notices of intent for the four lots. As
pertinent to this appeal, the commission eventually purported to
deny approval of the work proposed in the notice of intent for
lot 7.
     8
       Before the Superior Court and in this appeal, the
commission concedes that its denial of approval of the notice of
intent for lot 7 was a nullity because the DEP subsequently
issued a superseding order of conditions.
                                                                   7


the work described in Cave's notice of intent for that lot, and

sought certiorari review of the order of conditions issued by

the commission on the roadway extension notice of intent insofar

as it purported to regulate work on lot 7.     A judge concluded

that the superseding order of conditions for lot 7 governed the

performance of the work described in the notice of intent for

that lot, but that the conditions set forth in the order of

conditions issued by the commission on the roadway extension

notice of intent was valid and enforceable.    Subsequently, in an

order on Cave's motion for clarification or reconsideration, the

judge explained that his ruling means that the order of

conditions issued by the commission under the ordinance for the

roadway extension project, including condition number twenty-

nine, remain applicable to the subdivision, notwithstanding the

superseding order of conditions issued by the DEP on the notice

of intent for lot 7.   This appeal followed.

    Discussion.    Cave lodges three challenges to the validity

of condition number twenty-nine.   First, it contends that the

ordinance is no more stringent than the act; accordingly, the

superseding order of conditions issued by the DEP on the roadway

extension project superseded any conditions imposed by the

commission.   Second, Cave argues that because the commission

"lost jurisdiction" over the work described in the notice of

intent for lot 7 when it failed to conduct a timely hearing, it
                                                                     8


was without authority to impose conditions affecting work on

that lot in the order of conditions it issued for the roadway

extension project.    Third, Cave asserts that the record does not

contain substantial evidence supporting the imposition of

condition number twenty-nine in the order of conditions for the

roadway extension project.    We address each claim in turn.

    "It is well established that municipalities may enact more

stringent requirements than those provided in the act.

Lovequist v. Conservation Commn. of Dennis, 379 Mass. 7, 14-15

(1979).    When a local conservation commission rests its decision

on a wetlands by-law [or ordinance] that provides greater

protection than the act, its decision cannot be preempted by a

DEP superseding order."    FIC Homes of Blackstone, Inc. v.

Conservation Commn. of Blackstone, 41 Mass. App. Ct. 681, 686-

687 (1996).    Where the local by-law or ordinance does not impose

more stringent controls than those set by the Legislature (in

the act), a DEP superseding order would control.    See DeGrace v.

Conservation Commn. of Harwich, 31 Mass. App. Ct. 132, 136

(1991).

    It is plain that the ordinance here imposes more stringent

controls than the act as to matters regulated under the order of

conditions issued by the commission for the roadway extension

project.    As we have described supra, the ordinance includes

vernal pools (including the area extending 100 feet beyond the
                                                                     9


basis depression comprising the pool itself) as resource areas

entitled to protection.   By contrast, the act makes no mention

of vernal pools; "vernal pool habitat" as defined in 310 Code

Mass. Regs. 10.04 (2008) is protected only to the extent that it

falls within an "Area Subject to Protection" under the act.     In

addition, the ordinance prohibits entirely any disturbance

within the additional wetland protection zone established by the

ordinance for the area extending twenty-five feet from the

boundary of any resource area (including vernal pools); under

the act, the additional twenty-five-foot area is not restricted

at all.   There is no error in the conclusion by the judge that

the ordinance imposes more stringent requirements than the act;

thus, the order of conditions issued by the commission for the

roadway extension project was not preempted by the DEP's

superseding order concerning that project.   See FIC Homes of

Blackstone, Inc. v. Conservation Commn. of Blackstone, 41 Mass.

App. Ct. at 687.

    Cave fares no better with its contention that the

commission was divested of all authority over the land

comprising lot 7 once the commission failed to conduct a hearing

within the statutory time frame mandated by the act.     In

essence, Cave's argument is that it is anomalous and illogical

to suggest that the work described in the notice of intent for

lot 7 can be authorized by the superseding order of conditions
                                                                    10


issued by the DEP on that notice of intent, but prohibited by

the order of conditions issued by the commission under the

ordinance on the notice of intent for the roadway extension

project.   Cave cites no authority for its contention, and we are

aware of none.   Nor do we share Cave's perception of anomaly.

    As a threshold matter, we observe that Cave filed its

notice of intent for the roadway extension project long before

it filed the notice of intent for lot 7, and had engaged in

detailed substantive discussions with the commission about the

roadway extension project over the course of several hearings,

continued with Cave's consent.    Moreover, the commission issued

the order of conditions for the roadway extension project before

the DEP undertook review of the notice of intent for lot 7 and,

therefore, before the DEP issued its superseding order of

conditions on that lot.    It would be anomalous indeed for the

DEP's superseding order of conditions for lot 7 to abrogate the

terms of a previously and validly issued order of conditions

regulating that lot simply because the same land was the subject

of additional work described in a subsequently filed notice of

intent.

    Cave's third and final argument is to some extent a

variation of the second.    Without conceding that the commission

could regulate activity on lot 7 after it failed to act timely

on Cave's separate notice of intent for that lot, Cave observes
                                                                    11


that, although the roadway extension notice of intent does not

propose any work on lot 7 itself, the order of conditions issued

by the commission for the roadway extension project nonetheless

imposes conditions prohibiting any disturbance of resource areas

on lot 7.    Accordingly, Cave asserts, the imposition of

condition number twenty-nine was arbitrary or capricious, and

not supported by substantial evidence.     See Pollard v.

Conservation Commn. of Norfolk, 73 Mass. App. Ct. 340, 348

(2008).

    In response, the commission observes that § 18-1.8 of the

ordinance directs it to "take into account the cumulative

adverse effects of loss, degradation, isolation, and replication

of protected resource areas throughout the community and the

watershed, resulting from past activities, permitted and exempt,

and foreseeable future activities."     Moreover, the commission

notes, the project described in the roadway extension notice of

intent was not merely the construction of the roadway; it

described the creation and the development of the subdivision

itself.     Accordingly, in evaluating appropriate conditions for

the roadway extension, the commission was not merely entitled

but required to consider the cumulative effects of the proposed

subdivision on wetlands resource areas and wildlife habitat

within the subdivision.
                                                                   12


    As the judge observed, in evaluating the notice of intent

for the roadway extension, the commission had before it the

report of its conservation agent highlighting the need to

insulate vernal pool habitats from human construction

activities, and explaining the delicate balance between the

ecosystem and Cave's proposed construction activities.     The

commission also considered civil engineering and environmental

consulting reports and an ecological restoration plan for the

project.   The record indicates that the commission analyzed and

weighed the reports indicating the potential cumulative and

indirect effects the subdivision project might cause, and

considered the potential effects in light of the purpose and the

criteria set forth in the ordinance.

    "'Substantial evidence [is] such evidence as a reasonable

mind might accept as adequate to support a conclusion.'     The

applicable standard of review is 'highly deferential to the

agency' and requires the reviewing court to accord 'due weight

to the experience, technical competence, and specialized

knowledge of the agency, as well as to the discretionary

authority conferred upon it.'   'We give deference to the

decision of an agency interpreting its own regulations . . .

[and] do not intrude lightly within the agency's area of

expertise, as long as the regulations are interpreted with

reference to their purpose and to the purpose and design of the
                                                                    13


controlling statute.'"    Healer v. Department of Envtl.

Protection, 75 Mass. App. Ct. 8, 13 (2009) (citations omitted).

       In light of the commission's mandate to consider the

cumulative effects of the proposed subdivision with regard to

the purpose and the objectives of the ordinance, and the

evidence before it suggesting that disturbance of the wildlife

habitat within the 125-foot perimeter surrounding the two vernal

pools on the project site would be detrimental to the interests

protected by the ordinance, we discern no error of law in the

conclusion by the judge that the imposition by the commission of

condition number twenty-nine, prohibiting disturbance of land

within the wetlands protection zone, was supported by

substantial evidence and was not arbitrary or capricious.     See

Pollard v. Conservation Commn. of Norfolk, 73 Mass. App. Ct. at

348.

                                     Judgment affirmed.
