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15-P-1437                                              Appeals Court

  KENNETH TODD NELSON      vs.   CONSERVATION COMMISSION OF WAYLAND.


                             No. 15-P-1437.

            Middlesex.     May 16, 2016. - August 31, 2016.

                Present:   Rubin, Milkey, & Neyman, JJ.


Zoning, By-law, Wetlands. Municipal Corporations, Conservation
     commission, By-laws and ordinances. Practice, Civil,
     Action in nature of certiorari.


     Civil action commenced in the Superior Court Department on
December 3, 2014.

     The case was heard by Peter B. Krupp, J., on a motion for
judgment on the pleadings.


    George F. Hailer for the plaintiff.
    Mark J. Lanza for the defendant.


    RUBIN, J.      The plaintiff1 appeals from a judgment of the

Superior Court affirming a determination by the conservation

commission of Wayland (commission) that there are wetlands on


    1
       The plaintiff is the successor in interest to a purchase
and sale agreement for the property, which is an unimproved lot
at 8 Hill Street in Wayland.
                                                                      2


his property.2    That determination was made under Wayland's

wetlands and water resources protection by-law.     See chapter 194

of the Wayland town code (2015) (by-law).     Under the by-law's

definition, wetlands are protected more broadly than they are

under the Wetlands Protection Act and the accompanying

regulations.     See § 194-1 of the by-law ("The purpose of this

chapter is to provide a greater degree of protection of

wetlands, buffer zones, and related water resources, than the

protection of these resource areas provided under [G. L.]

c. 131, § 40, and the Wetlands Regulations promulgated

thereunder by the Massachusetts Department of Environmental

Protection").    Compare § 194-2 of the by-law, with G. L. c. 131,

§ 40, and 310 Code Mass. Regs. §§ 10.01 et seq. (2014).

     The plaintiff agrees that the town has the authority to

provide such broader protection, but argues that the

commission's decision here was not supported by substantial

evidence.   The plaintiff brought an action in the nature of

certiorari (G. L. c. 249, § 4) in the Superior Court.     The

plaintiff moved for judgment on the pleadings pursuant to

Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974).    The judge denied the



     2
       The commission held a three-session public hearing on the
plaintiff's request for a determination that there are not
wetlands on his property. Testimonial, documentary, and
photographic evidence was presented. Site visits were also
conducted.
                                                                    3


motion and upheld the commission's decision.   This appeal

followed.

    The commission made two findings supporting its conclusion

that the property at issue contains wetlands within the meaning

of the by-law.    These findings, in full, provide that "[p]lants

including [r]ed [m]aple, American [e]lm, skunk cabbage, and

other hydrophilic vegetation comprise at least 50% of the

vegetational community."    Further, "[r]unoff water from surface

drainage frequently collects above the soil surface."

    Section 194-2 of the by-law defines "wetland" as "[w]et

meadows, marshes, swamps, bogs, and other areas where

groundwater, flowing or standing surface water or ice provide a

significant part of the supporting substrate for a hydrophilic

plant community, or emergent and submergent plant communities in

inland waters."

    The commission argues that the its findings mean that the

property contains a wetland falling within the "catch-all"

portion of the definition of wetland, specifically an "other

area[] where groundwater, flowing or standing surface water or

ice provide a significant part of the supporting substrate for a

hydrophilic plant community."

    We defer to the commission's reasonable construction of the

by-law.   See generally Fafard v. Conservation Commn. of Reading,

41 Mass. App. Ct. 565, 572 (1996) ("Although the commission is
                                                                    4


entitled to all rational presumptions in favor of its

interpretation of its own by-law, there must be a rational

relation between its decision and the purpose of the regulations

it is charged with enforcing").   We understand the commission to

have concluded that where "[r]unoff water from surface drainage

frequently collects above the soil surface" and "hydrophilic

vegetation comprise[s] at least 50% percent of the vegetational

community," then "standing surface water . . . provide[s] a

significant part of the supporting substrate for a hydrophilic

plant community" within the meaning of the by-law's definition

of a wetland.

     That construction is reasonable.   The definition of swamp,

one subcategory of wetland under the by-law, is "[a]n area . . .

where runoff water from surface drainage frequently collects

above the soil surface and where at least 50% of the

vegetational community is made up of, but is not limited to nor

necessarily includes all of, the following plants or groups of

plants:   . . . American or white elm, . . . red maple, skunk

cabbage . . . ."3   § 194-2 of the by-law.   This part of the by-


     3
       The commission made no finding that any area of the
property constituted a "swamp," perhaps because the by-law
definition of swamp does not include "other hydrophilic
vegetation," within its list of qualifying vegetation. Rather
it contains a finite list of vegetation. Some of the vegetation
found by the abutter's consultant on the property is not on that
list. Whether or not the commission could have found that the
property contained "swamp" within the meaning of the by-law, the
                                                                   5


law demonstrates that a construction of the by-law is reasonable

under which, where there is a hydrophilic plant community,

"runoff water from surface drainage frequently collect[ing]

above the soil surface" renders "standing surface water . . . a

significant part of the supporting substrate" for that community

within the meaning of the by-law.

    Likewise, in light of the fifty percent threshold utilized

in the definition of swamp, it is reasonable to construe the

phrase "hydrophilic plant community" as it is used in the by-law

to include property on which "hydrophilic vegetation comprise[s]

at least 50% percent of the vegetational community."

    Given the commission's reasonable construction of the

catch-all provision, the judgment below must be affirmed if

there was substantial evidence supporting the commission's two

findings, as those findings suffice to bring the property within

the definition of property containing wetland under the by-law.

See Lovequist v. Conservation Commn. of Dennis, 379 Mass. 7, 17-

18 (1979) (conservation commission decision reviewed for

substantial evidence).   See also Dubuque v. Conservation Commn.

of Barnstable,   58 Mass. App. Ct. 824, 828-829 (2003) (to

overturn commission's decision, plaintiff must show that




commission does not defend its decision on this ground, and we
do not decide the issue.
                                                                   6


commission's decision was arbitrary and capricious or

unsupported by substantial evidence).

    In claiming that the commission's decision is not supported

by substantial evidence, the plaintiff argues first that the

commission erred in determining that runoff water "frequently"

collects on the property.   The abutter's consultant stated in

her report, which was in evidence before the commission, that

"several times throughout the year . . . . [w]ater flows across

the site as sheet flow and ponds within the numerous small

depressions."   Again, we defer to the commission's construction

of its own by-law as long as it is reasonable.   Its

interpretation of the by-law to mean that pooling "several times

throughout the year" amounts to "frequent" pooling sufficient to

meet the by-law requirement that "standing surface water . . .

provide[s] a significant part of the supporting substrate for a

hydrophilic plant community" is not unreasonable.   As described,

there is substantial evidence of such pooling.

    Likewise, the plaintiff's expert's statement that

"[p]ortions of the site contain a predominance of wetland

indicator species (largely facultative red maple trees)" and the

abutter's expert's statement that the property contains "a clear

predominance of wetland indicator plants," including red maple,

American elm, and skunk cabbage, amount to substantial evidence

in support of the finding by the commission that over fifty
                                                                   7


percent of the vegetational community is made up of hydrophilic

plants.

    The plaintiff argues finally that the absence of hydric

soil on the property strongly detracts from a finding that there

are wetlands and requires a conclusion that the commission's

decision was not supported by substantial evidence.    Although

the presence of hydric soil may be relevant to whether property

contains a protected wetland under State and Federal law, the

definition in the by-law permits the conclusion that a wetland

exists despite the absence of hydric soil.    Contrast 7 C.F.R.

§ 12.2(a) (2016) (wetland defined to require "predominance of

hydric soils"); 310 Code Mass. Regs. § 10.55(1) (2014) (hydric

soil characteristics relevant in some circumstances to a finding

of inundated or saturated conditions necessary to the existence

of a wetland under State-law definition).    Since there was

substantial evidence to support the commission's decision, the

judgment below is affirmed.

                                   So ordered.
