Nelson v. Conservation Commission of Wayland (Lawyers Weekly No. 11-113-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   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 plaintiff[1] appeals from a judgment of the Superior Court affirming a determination by the conservation commission of Wayland (commission) that there are wetlands on 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 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 […]

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