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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 twentynine, 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.