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13-P-276                                           Appeals Court

PARKVIEW ELECTRONICS TRUST, LLC vs. CONSERVATION COMMISSION OF
                           WINCHESTER.


                           No. 13-P-276.

      Middlesex.      November 6, 2014. - January 12, 2016.

           Present:   Trainor, Agnes, & Maldonado, JJ.


Municipal Corporations, Conservation commission, By-laws and
     ordinances. Wetlands Protection Act. Department of
     Environmental Protection. Jurisdiction, Administrative
     matter. Zoning, By-law, Wetlands.


     Civil action commenced in the Superior Court Department on
June 25, 2004.

     The case was heard by Mitchell H. Kaplan, J., on motions
for judgment on the pleadings.


     Jill Brenner Meixel (Vincent J. Pisegna with her) for the
plaintiff.
     Wade M. Welch (Melissa C. Donohoe with him) for the
defendant.


    AGNES, J.    The Wetlands Protection Act, G. L. c. 131, § 40

(act), sets forth "minimum wetlands protection standards, and

local communities are free to impose more stringent

requirements."   Oyster Creek Preservation, Inc. v. Conservation
                                                                     2


Commn. of Harwich, 449 Mass. 859, 866 (2007).     As we noted in

Fafard v. Conservation Commn. of Reading, 41 Mass. App. Ct. 565,

568 (1996), it is not uncommon for a town, under its local by-

law, to establish wetland protection standards that are more

demanding than those under State law.     In such a case, when a

local commission concludes that a project meets the requirements

of State law, but does not satisfy the requirements of municipal

law, it "introduces no legal dissonance and violates no

principle of State preemption."   Ibid.    In Healer v. Department

of Envtl. Protection, 73 Mass. App. Ct. 714, 718 (2009), we

explained the requirements that must be met by a local

conservation commission that decides to act independent of State

law by exercising jurisdiction over wetlands exclusively on the

basis of a more stringent local by-law.1


1
     "A local authority exercises permissible autonomous
     decision-making authority only when its decision is based
     exclusively on the specific terms of its by-law which are
     more stringent than the act. The more stringent provisions
     of a local by-law provide an independent basis for an
     autonomous local decision. The denial of a permit, or the
     requirement of additional conditions, may be based on the
     independent basis of the more stringent provisions of the
     local by-law. The simple fact, however, that a local by-
     law provides a more rigorous regulatory scheme does not
     preempt a redetermination of the local authority's decision
     by the [Department of Environmental Protection] except to
     the extent that the local decision was based exclusively on
     those provisions of its by-law that are more stringent and,
     therefore, independent of the act. Notwithstanding this
     fact, the DEP otherwise maintains the right to redetermine
     the local decision's application of provisions of the act."
                                                                   3


     In the present case, the by-law of the town of Winchester

(local by-law) has a more expansive standard for "land subject

to flooding" than does the act.2   Nevertheless, the plaintiff,

Parkview Electronics Trust, LLC (Parkview), contends that an

order of resource area delineation (ORAD) issued by the

conservation commission of Winchester (commission) is invalid

under Healer because it was not based "exclusively" on the more

stringent provisions of local law.3   In effect, Parkview




Healer, 73 Mass. App. Ct. at 718-719 (footnote and citation
omitted).
     2
       The local by-law provides in part that "[e]xcept as
permitted by the commission or as provided in this by-law no
person shall remove, fill, dredge, alter, or build upon or
within one hundred (100) feet of any freshwater wetland, wet
meadow, bog, or swamp; within one hundred (100) feet of any
bank; upon or within one hundred (100) feet of any lake, river,
pond, stream; upon any land under said waters; upon any land
subject to flooding or inundation by groundwater or surface
water; or within the foregoing areas in such a way as to detract
from visual access to the Aberjona River, Horn Pond Brook,
Winter Pond, Wedge Pond, Judkins Pond, Mill Pond, Smith Pond or
Mystic Lake." Local by-law c. 13, § 3. The local by-law also
defines "flooding" as "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." Local by-law c. 13, § 2.14.

    Under the act, on the other hand, "[t]he boundary of
Bordering Land Subject to Flooding [BLSF] is the estimated
maximum lateral extent of flood water which will theoretically
result from the statistical 100-year frequency storm," as
determined by the Federal Emergency Management Agency. 310 Code
Mass. Regs. § 10.57(2)(a)(3) (1997).
     3
       An ORAD refers to an order issued by a local conservation
commission that confirms or modifies an applicant's
identification and delineation of bordering vegetated wetland
                                                                      4


maintains that Healer requires a local commission to choose

between reliance on State law or local law.     For the reasons

that follow, we reject this reading of Healer and affirm the

judgment.

     The essential facts are not in dispute.     Parkview owns an

industrial park (property) located in Winchester, consisting of

seven buildings in which many businesses are located.     The

property has often been subject to flooding given its proximity

to the Aberjona River.     In 1996 and 1998, the Aberjona River

overflowed its banks and flooded the property.     In 1999, to

protect the property, Parkview raised the driveway on the

property (also referred to as berm) from 25.5 feet above sea

level to 28.1 feet above sea level.     The driveway acts as a berm

to prevent future flood water from flowing onto the property.

     In 2004, the property's abutter filed a request for an

abbreviated notice of resource area delineation (ANRAD) with the

commission, claiming that the berm had the effect of diverting

water onto his property.    On May 14, 2004, the commission, in

response, issued the ORAD that is the subject of this appeal.4

The ORAD states on the top of the form:     "Order of Resource Area


and other resource areas subject to the act.     See 310 Code Mass.
Regs. § 10.05(6) (1997).
     4
       In the ORAD, the commission determined that the boundaries
described in the ANRAD request "are accurately drawn for the
following resource area(s): . . . Bordering Land Subject to
Flooding."
                                                                    5


Delineation Massachusetts Wetlands Protection Act M.G.L. c. 131,

§ 40."    After this language, the form states:   "And Winchester

Wetlands Bylaw."

     Parkview commenced an action in the nature of certiorari

against the commission on June 25, 2004, seeking to annul the

ORAD issued on May 14, 2004.    See G. L. c. 249, § 4.   The

commission issued additional orders on May 14 and May 22, 2006.

Parkview filed an amended complaint seeking to annul all three

orders.    The parties filed cross motions for judgment on the

pleadings.   Following a hearing, a judge of the Superior Court

granted the commission's motion and denied Parkview's motion, in

effect ruling that the commission properly exercised

jurisdiction over the property on the basis of the local by-law.

Judgment entered accordingly.

     Meanwhile, on May 27, 2004, Parkview filed an appeal from

the ORAD with the Department of Environmental Protection (DEP),

requesting a superseding order of resource area delineation

(SORAD).   Parkview asserted that the commission's decision to

assert jurisdiction was in error.    On April 30, 2010, the DEP

issued a SORAD, and wrote a letter to Parkview, with a copy to

the commission, stating that in 1999, the driveway was not

within the 100-year flood plain shown on the Federal Emergency

Management Agency's (FEMA) flood insurance rate map and,

therefore, not within the jurisdiction of the act.     The letter
                                                                           6


also stated "that it is MassDEP's responsibility to address only

those interests identified in the Wetlands Protection Act,

M.G.L. Chapter 131, Section 40."

       Discussion.        Parkview maintains that the ORAD issued by the

commission is not based exclusively on the local by-law and,

thus, under Healer, was preempted by the SORAD issued by the

DEP.       We disagree.     The regulatory authority of a local

conservation commission stems from State law and, when there is

a local by-law, as is the case here, local law as well.           Insofar

as the commission relied on the act in asserting jurisdiction,

Healer, 73 Mass. App. Ct. at 717-718, makes clear that its

decision is subject to being superseded by that of the DEP.            See

Garrity v. Conservation Commn. of Hingham, 462 Mass. 779, 783

(2012) (if local commission fails to act on application filed

under G. L. c. 131, § 40, in timely manner, applicant or any

interested party may request from DEP superseding order of

conditions); Lippman v. Conservation Commn. of Hopkinton, 80

Mass. App. Ct. 1, 4 (2011) (any late-issued decision by local

commission, even if based on more stringent local by-law, is

without effect).          However, when a local commission acts in a

timely manner and, in addition to reliance on State law,5 also



       5
       When an application is made to a local conservation
commission under G. L. c. 131, § 40, the commission is charged
with determining the applicability of the act. It may then, as
                                                                     7


relies independently on a local by-law, as in this case, its

decision interpreting and applying the local by-law is not

subject to DEP review.   See Hobbs Brook Farm Property Co. Ltd.

Partnership v. Conservation Commn. of Lincoln, 65 Mass. App. Ct.

142, 149 (2005).

     In this case, the commission initially asserted

jurisdiction on the basis of both State and local law.     The DEP

subsequently found that the property in question was not subject

to the commission's jurisdiction under the act.   Even though the

commission's assertion of jurisdiction under the act was in

error and was superseded by the DEP's decision, the local by-law

remains as an alternative basis for the commission's

jurisdiction.   We are satisfied that the more stringent

definition of "land subject to flooding" contained in the local

by-law, which is specifically referred to in the commission's

ORAD, was an alternative basis for the commission's decision.6



in this case, determine whether it has jurisdiction on the basis
of a more stringent local by-law.
     6
       As the commission points out in its brief, a written
memorandum by commission member Louise Ahearn dated January 21,
2004, was read and incorporated into the commission's minutes at
their April 26, 2004, meeting, during which they voted "three to
two that in 1999 the prime area was a" BLSF and "the area where
the berm was built was land subject to flooding under the
Winchester Wetlands ByLaws." The Ahearn memo states: "Even if
the area of the berm is determined not to have been BLSF under
state regulations, it may have been land subject to flooding
under the Winchester wetlands by-law. Flooding is defined in
[c. 13, § 2.14, of] the by-law as a 'temporary inundation of
                                                                     8


    Parkview's principal argument is based on the following

sentences in Healer (see note 1, supra):     "A local authority

exercises permissible autonomous decision-making authority only

when its decision is based exclusively on the specific terms of

its by-law which are more stringent than the act. . . .     The

simple fact, however, that a local by-law provides a more

rigorous regulatory scheme does not preempt a redetermination of

the local authority's decision by the DEP except to the extent

that the local decision was based exclusively on those

provisions of its by-law that are more stringent and, therefore,

independent of the act."     Healer, 73 Mass. App. Ct. at 718-719

(footnote omitted).   These sentences simply mean that in order

for a local commission to ensure that its decision is not

subject to DEP review, the commission must base its decision

exclusively on local law.    Insofar as a commission's decision is

based on local law and State law, DEP has jurisdiction to review

it and supersede that portion of the commission's decision that

is based on State law.     For this reason, local commissions

purporting to act under both State law and independently under




water or a rise in the surface of a body of water, such that it
covers land not usually under water'. . . . Evidence has been
provided that land west of the Cross St bridge was flooded in
the 1996 and 1998 floods. Therefore, in my opinion, in 1999
before the berm was constructed, that area was land subject to
flooding under the town's wetlands by-law."
                                                                     9


local law should make it clear in their written decisions and

orders that there is a dual basis for their determinations.7

     Parkview also claims that the definition of "land subject

to flooding" in the local by-law is so vague as to violate the

due process clauses of the United States Constitution and the

Massachusetts Declaration of Rights.   Section 2.14 of c. 13 of

the local by-law (§ 2.14) defines "flooding" as "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."     See note 2,

supra.   Section 3 of c. 13 of the local by-law provides that the

commission has jurisdiction over "any land subject to flooding

or inundation by groundwater or surface water."

     It is settled that "vagueness challenges to statutes not

threatening First Amendment [to the United States Constitution]

interests are examined in light of the facts of the case at

hand; the statute is judged on an as-applied basis."     Love v.


     7
       If we were to adopt Parkview's argument in this case, we
would effectively expand the DEP's reviewing authority at the
expense of a local commission's authority to act independently
under a local by-law, in contravention of the principle that
"[t]he Act 'establishes minimum Statewide standards leaving
local communities free to adopt more stringent controls.'"
Healer, 73 Mass. App. Ct. at 717, quoting from Golden v.
Selectmen of Falmouth, 358 Mass. 519, 526 (1970). See Lovequist
v. Conservation Commn. of Dennis, 379 Mass. 7, 14 (1979) ("We
find unconvincing the plaintiffs' assertion that, because G. L.
c. 131, § 40, does not give any express or implied powers to a
municipality to adopt wetlands by-laws outside of a zoning
framework, general by-laws concerning wetlands protection
contravene the wetlands statute").
                                                                   10


Butler, 952 F.2d 10, 13 (1st Cir. 1991), quoting from Maynard v.

Cartwright, 486 U.S. 356, 361 (1988).   See Commonwealth v.

Jasmin, 396 Mass. 653, 655 (1986); Fogelman v. Chatham, 15 Mass.

App. Ct. 585, 589 (1983) ("A law is not unconstitutionally vague

because it presents some questions as to its application in

particular circumstances.   Courts and administrative boards draw

lines and resolve ambiguities every day").

    Parkview argues that the definition of "flooding" is so

general and broad that it gives the commission jurisdiction over

"every puddle in every driveway and backyard in Winchester."

However, there is no basis for the claim that Parkview was left

to guess as to the applicability of the local by-law to its

construction of a berm to hold back floodwater.   In a letter to

the commission dated April 5, 2011, Parkview's attorney noted

that there are seven businesses employing several hundred

persons located in the property.   The letter goes on to report

that "[t]he parties' properties are close to a portion of the

Aberjona River that has been prone to severe flooding since the

1990s.   The Aberjona flooded in 1996 and 1998.   As a result of

these floods, Parkview suffered in excess of $400,000 in damages

and Parkview's tenants suffered millions of dollars in damages."

As in Doherty v. Planning Bd. of Scituate, 467 Mass. 560, 572

(2014), we conclude that when § 2.14 is considered in light of

the general purpose of the local by-law as set forth in § 1 of
                                                                  11


c. 13,8 and the public policy concerns giving rise to it, it is

not impermissibly vague.

                                   Judgment affirmed.




     8
       Section 1 of c. 13 of the local by-law provides that
"[t]he purpose of this by-law is to protect the wetlands,
related water resources, and adjoining land areas in the town by
prior review and control of activities deemed to have an adverse
effect upon wetlands values, including, but not limited to the
following: . . . flood control."
