HomeMy WebLinkAboutSUMMARY OF JUDGEMENT NACC COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS SUPERIOR COURT
86-612 NO.
8b-613
Benjamin Osgood, Trustee of the Plaintiff(s)
Abbott Street Trust
V.
James Lafond, et als as the? are De
edant�sl
members o e or Andover onserva on ommission
SUMMARY JUDGMENT
(MASS. R. CIV. P. 56)
This action came to be heard before the court, Cratsley
J. presiding, upon the motion of the 1
defendants Tames Lafond., et 9.1s for summary judgment pursuant to
Mass. R. Civ. P. 56, the parties having been heard, the Court finds that there is no genuine issue as to
material fact, and that the 4WU= , defendant s
James La-fond. et als are 7.:QXentitled to a judgment as a matter of law
It is herby ORDERED that: Benjamin Osgood, Trustee of the Abbott Street
the complaint of plaintiff Trust be and hereby
is dismissed against defendant s James Lafond, at als without costs.—vkibc
DATE: June 3, 1987. 1
Assistant Clerk
OFFICE#41
COMMONWEALTH OF MASSACHUSETTS
ESSEX, SS. SUPERIOR COURT
CIVIL ACTION
Nos. 86-612
86-613
BENJAMIN OSGOOD, Trustee of the
Abbott Street Trust
VS.
JAMES LAFOND and others!/ as they
are members of the North Andover
Conservation Commission
MEMORANDUM OF DECISION AND ORDER
ON DEFENDANTS' MOTION FOR CONSOLIDATION
OF ACTIONS AND FOR SUMMARY JUDGMENT
BACKGROUND
This is an action in the nature of certiorari, pursuant to
G.L. 249, § 4, and for declaratory relief brought by the owner
of a large parcel of land in North Andover, Massachusetts,
following issuance of an Order of Conditions by the North
Andover Conservation Commission ("Commission") denying phase I
and II of a proposed project on the basis of the owner ' s
failure to comply with the requirements of the Town Bylaw 3. 5
and the Wetlands Protection Act, G.L. c. 131, S 40.
I. Defendant's Motion to Consolidate Actions.
Plaintiff filed two separate actions which correspond to
the two phases of his contiguous development project. Inasmuch
as the Planning Board considered both phases together , the two
Guillermo Vicens , Arthur Resca, Henry Fink, Richard Stulgis ,
Jack Lindon, and Robert Manson.
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phases are under common ownership, and the two phases are
ecologically intertwined , it was appropriate for the Commission
to consider both phases together . See, Orders of Conditions ,
pp. 242-332 and pp. 242-336 , Findings 4. Consolidation of
these acions is appropriate for the same reasons, and to
facilitate review of the Commission' s decision under G.L. c.
149 , § 4 , there being common issues of fact and law.
II. Defendants' Motion for Summary Judgment
Plaintiff asks that this Court deny summary judgment so
that it can "prove at trial sufficient facts , regarding the
instant project, to establish [that the By-Law under which the
North Andover Conservation Commission decided the matter] is
pre-empted by [G.L. C. 131, § 401 . " Plaintiffs Memorandum of
Law. Such an issue is , however , one of law.
Plaintiff contends that because the Commission issued its
Order based, in part , upon interests recited in its By-law (Ch.
3.5) which are also recited in G.L. C. 131, § 40 (public water
supply, private water supply, ground water supply, flood
control, storm damage prevention and pollution prevention) , the
By-law is pre-empted by G.L. c. 131, § 40 , and any application
of it to the instant project is unconstitutional and illegal.
Plaintiff relies on Hamilton v. Conservation Commission of
Orleans, 17 Mass. App. Ct. 359 (1981) , for support. In that
case, the Court noted that the Commonwealth, by the Department
of Environmental Quality Engineering (DEQE) , had the right to
overrule those decisions of local conservation commissions which
were based on the protection of interests cited in G.L. c. 131,
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§ 40 . " [W]here a local authority disapproves a proposed
project pursuant to a by-law or ordinance which provides
greater protection than section 40, the applicant has no right
to seek DEQE approval of the project on the basis that it would
be acceptable under the statute. Rather , the applicant pursues
[a remedy by an action in the nature of certiorari pursuant to
G.L. c. 249, § 4. 1 Where, however , the local authority
approves or disapproves an application under section 40 , the
Commonwealth, through the DEQE, has the final word. " id. at
368 . Hamilton does not deal with the pre-emption of substantive
wetlands law, but the bifurcation of procedure for the review
of local conservation commission orders. The Commission here
based its decision on both its by-law (Ch. 3.5 A and B) and
G.L. c. 131, § 40. " [T]he [Commission] denies this project as
proposed because it does not meet the performance standards of
the regulations, and therefore the interests of the Act and By-
law will not be protected. " Orders of Conditions, pp. 242-332
and pp. 242-336 for the Abbott Street Trust proposed project,
Phases I and II.
The facts material to an action in the nature of
certiorari , pursuant to G.L. c. 149 , § 4, are the certified
records of proceedings of the Commission regarding issuance of
the Orders of Conditions (pp. 242-332 and 242-336) denying each
phase. Since these have been provided, summary judgment under
Mass. R. Civ. P. 56 is appropriate.
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DISCUSSION OF APPLICABLE LAW
In Lovequist v.. Conservation Commission of Dennis, 379
Mass. 7 (1979) , a conservation commission denied a project
based on a local by-law (which was directly modeled on the
language of G.L. c. 131, S 40) . The Court stated that standard
of review, in an action in the nature of certiorari pursuant to
G.L. c. 249 , S 4, of a commission' s decision is that it be
based "on reasoning relevant to the evidence presented before
[it] ." Id. at 17 and cases cited. A decision of a local board
will be upheld if it is supported by substantial evidence in
the record. Boston Edison Company v. Boston Redevelopment
Authority, 374 Mass. 37, 48 (1977) , Lovequist, supra at 18.
"The nature or scope of [a review pursuant to G.L. c. 249 , S 41
accommodates to the kind of administrative decision involved,
and this , in turn, is conditioned by the type of substantive
rule or standard that is being applied. " Yerardi ' s Moody
Street Restaurant & Lounge, Inc. v. Board of Selectmen of
Randolph, 19 Mass. App. Ct. 296, 300 (1985) . By-law 3.5 (B)
substantially parallels the language of G.L. c. 131, S 40 , in
defining interests protected and additionally includes
wildlife?, recreation, and aesthetics. In reviewing the
Certified Record of Proceedings, this court will accordingly
look at the Wetlands Regulations (3.10 C.M.R. 10 .00) promulgated
by DEQE under its rulemaking authority set forth in G.L. c.
_ Wildlife habitant is protected by G.L. c. 131, S 40 effective
November 1, 1987. See St. 1986, c. 262, S 3.
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131, § 40 , as these substantive rules applied by the Commission
formed a significant part of its findings.
As to Phase II , the Commission found in Finding #5 of its
Order of Conditions, (pp. 242-336) that a roadway mandated by
the North Andover Planning Board as a condition of subdivision
approval "does not meet the definition or intent of a limited
project as given in 310 CMR, 10.53 (3) (e) . " The Commission also
found in that Finding that there are reasonable alternatives to
crossing the wetlands on the site to provide access to upland
lots , and therefore the proposed crossing does not qualify as a
limited project. The Commission further found that even in the
event that access from Salem Street (proposed by the Planning
Board) is determined to be unsafe and unavailable , the proposed
crossing of the wetlands still does not quality as a limited
project under 310 CMR, 5 10.53 (3) (e) because "reasonable
alternatives exist to the location and size of the applicants '
proposed crossing which would have significantly less wetland
impacts (e.g. , moving the T intersection out of the wetland) . "
Order of Conditions, pp. 242-336, Finding #6 .
As to Phase I, the Commission found that reasonable
alternatives exist to the wetland roadway crossings at stations
5+00 to 6+50 and at stations 13+00 to 14+50, and had even
suggested an alternative route in a letter to the Planning
Board, a copy of which was sent to the plaintiff. See, Order
of Conditions, pp. 242-332, Finding #5; Vicens Letter of August
1, 1985.
310 CMR, § 10 .53 (3) (e) allows for discretionary approval
of projects ("the issuing authority may issue an Order of
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Conditions") to permit access to upland areas where "reasonable
alternative means of access from a public way to an upland area
of the same owner is unavailable , " even though such approval
would otherwise violate 310 CMR, 5 10.55 (4) (limiting to 5000
square feet the loss of wetlands by a Commission' s Order of
Conditions) .
The Commission found that the instant project as proposed
(Phases I and II) would cause the loss of nearly 20 ,000 square
feet of bordering vegetated wetlands. See C.A. 86-612, Record ,
Tab 6, BSC Report 4.1, 4.2.3/ The plaintiff has not shown by a
preponderance of the evidence before the Commission that the
interests o- sought to be protected by the by-law will not be
harmed by the work proposed. Town By-law 3.5 (b) (10) .
Given the discretionary nature of relief provided under
310 CMR, § 10.53 (3) (e) , as admitted by plaintiffs in the Notice
of Intent narratives for each Phase , C.A. 86-612 Record, tab 2,
narrative p. 3 , C.A. 86-613 Record , tab 1, narrative p. 3 , and
the ability of the Town of North Andover to adopt standards
more restrictive than those provided by G.L. c. 131, 9 40 and
the accompanying regulations, the plaintiff bears an especially
difficult burden to overcome the presumption of denial of
Plaintiff 's contention that the BSC report is not part of
the record since it was submitted after the public hearing is
without merit since it was specifically listed in the Orders of
Conditions as project data upon which the Commission relied.
Further , a public hearing is not required for decisions made
pursuant to the Bylaw. See Town Bylaw 3. 5 (B) (1) . Finally, the
engineer who prepared the BSC report gave oral testimony at the
public hearing which reflected the report ' s finding and which
is contained in the record. See C.A. 86-612 , Record, tab 5 ,
Commission Minutes, (9) .
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projects which propose to alter more than 5000 square feet of
wetlands. 310 CMR, § 10 . 55 (4) . Thus informed by this
standard, Yerardi , supra at 300 , the Commission' s Orders of
Conditions denying Phases I and II of the Plaintiff' s proposed
project is based on "reasoning relevant to the evidence
presented before them" contained in the records . Loveguist,
supra at 17. See C.A. 86-612 Record , tab 6, BSC Report 4 .3,
4.4; tab 5, Commission Minutes (9) . This evidence is "such as
a reasonable mind might accept as adequate to support a
conclusion" , Boston Edison Co. , supra at 54 , citing Bunte v.
Mayor of Boston, 361 Mass. 71, 74 (1972) , and is thus substan-
tial as a matter of law.
Having concluded that the Commission had substantial
evidence from which it could deny approval for the proposed
project based solely on its direct impact on wetlands , this
court need not review the Commission's decisions relating to
work in the buffer zone, culvert design deficiencies , flood
storage design deficiencies , and wetlands replication plan
deficiencies.
ORDER
For the reasons given, and upon the authorities cited , the
Defendants' Motion to Consolidate Actions is Allowed, and the
Defendant's Motion for Summary Judgment is Allowed.
f
John C. Crats
Justice of the Superio Court
Dated: June . , 1987
i
COMMONWEALTH OF MASSACHUSETTS
ESSEX,ss. SUPERIOR COURT DEPARTMENT
NO. 86-613
I
BENJAMIN OSOOOD,Trustee of }the Abbot Street Trust, ) �� All
Plaintiff,
IV. ) t el
DEFENDANTS' MOTION FOR fiat`
JAMES LaFOND,OUILLERMO VICENS, ) CONSOLIDATION OF ACTIONS �Qle.-
ARTHUR RESCA,HENRY FINK, ) AND FOR SUMMARY JUDGMENT
RICHARD STULGIS,JACK LINDON, )
ROBERT MANSOUR,as they are )
members of the North Andover ) / �
Conservation Commission, ) /,
Defendants. ) 1,
e
COME NOW the defendants in this action and,pursuant to Rule 42(a)of the Rules of Civil
Procedure move for an order of this court consolidating this action with the action docketed as
Superior Court Department No. 86-612(Essex,ss.). Defendants further move, pursuant to Rule
56(b)of the Rules of Civil Procedure,for summary judgment in this action or in the consolidated
action if such order is issued. As grounds therefor,defendants state:
( 1) This is an action,apparently in the nature of certiorari brought pursuant to Mass.
G.L..c.249,S4,and for declaratory relief brought pursuant to M.O.L. c.23 IA,arising out of an
order of conditions issued by the defendants as they constitute the Conservation Commission of the
Town of North Andover,on February 19, 1986,pursuant to Town By-law 3.5,denying approval
of the plaintiffs proposal for the construction of a roadway and appurtenances to service 32
dwellings in Phase 2 of a subdivision known as Abbott Village Estates.
(2) The action docketed as Superior Court Department No. 86-612(Essex, ss.) is also
apparently in the nature of certiorari brought pursuant to Mass. O.L.c.249,S4,and for
declaratory relief brought pursuant to M.G.L. c.23 IA,arising out of another order of conditions
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