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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.