FARMER v. CONSERVATION COMMISSION OF GEORGETOWN (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On cross motions for judgment on the pleadings, a Superior Court judge ruled in favor of the Georgetown conservation commission (GCC), affirming the GCC's denial of the plaintiff's, Brian Farmer, 2015 notice of intent to reconstruct a septic system on his property. On appeal, Farmer contends that the GCC's denial was improper because (1) the GCC did not find that his proposal would create a “significant or cumulative effect upon wetland values,” (2) the GCC did not consider practical alternatives to his plan, and (3) the GCC's written findings do not support the denial. We affirm.

Discussion. We review the grant of judgment on the pleadings de novo, Home Depot v. Kardas, 81 Mass. App. Ct. 27, 30 (2011), but review the GCC's decision to determine “whether it was legally tenable and supported by substantial evidence on the record as a whole.” Pollard v. Conservation Comm'n of Norfolk, 73 Mass. App. Ct. 340, 348 (2008).

1. Significant or cumulative effect. Farmer contends that the GCC violated § 161-7(A) of the Georgetown wetlands protection bylaw (wetlands bylaw) because it did not explicitly find that his plan would create a “significant or cumulative effect upon wetland values.” We are not persuaded.

Pursuant to § 8.1 of the Georgetown wetlands protection regulations (wetlands regulations), the GCC presumes that “[a]ctivities undertaken in close proximity to wetlands or other resources have a high likelihood of adverse impact upon the wetlands or other resources.” A petitioner bears the burden of rebutting this presumption. Wetlands bylaw § 161-12. Further, “[a]ny and all sanitary septic systems shall be located one hundred (100) horizontal linear feet from any wetland resource area.” Wetlands regulations § 8.4.2. However, “[a]n existing sanitary septic system lawfully located, within one-hundred (100) horizontal linear feet of a resource area, may be maintained or repaired but not substantially changed or enlarged.” Id. at § 8.4.3.

Here, Farmer's lot located on Central Street (Farmer's lot) is almost completely wetland or within one hundred feet of wetlands. Farmer's lot contains a septic system for a three-bedroom house located on the abutting lot (Brook Street lot). The Brook Street lot contains a cesspool connected to a long-disused automobile garage located on Farmer's lot. In 2013, the GCC permitted Farmer to move the septic system from his lot to the abutting Brook Street lot while keeping it connected to the three-bedroom house (2013 plan). In 2015, without having started work on the 2013 plan, Farmer submitted to the GCC his notice of intent to convert the garage into a two-bedroom house and connect it to the existing septic system on Farmer's lot (2015 plan). Because the 2013 plan disconnects the existing three-bedroom house from its septic system located on Farmer's lot, implementing the 2015 plan would result in the construction of a new septic system that is within one hundred feet of wetlands. Five bedrooms' worth of septic discharge within one hundred feet of wetlands would result where currently there is only three bedrooms' worth. The GCC found that this was an “expansion of treatment” and was “considered new” construction. As such, the GCC permissibly found that the 2015 plan proposed an impermissible project under § 8.4.3 of the wetlands regulations without rebutting the presumption of adverse impacts. See Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 228 (2010) (agency's interpretation of its own regulations entitled to deference).

2. Practical alternatives. Farmer next contends that the GCC erroneously did not consider practical alternatives to his 2015 plan before denying it. We are not persuaded. Section 8.9 of the wetlands regulations states:

“[P]rojects and associated disturbances should be located outside of any resource that falls under the jurisdiction of the bylaw, including the adjacent upland resource area. Practical alternatives to locate the project outside these areas must be investigated with due diligence by the applicant, should one or more prove feasible the plan must be amended to relocate all activities accordingly ․ If in the Commission's view, there are no practical alternatives project impacts must be minimized and mitigated so there are no adverse impacts to the resources. If the Commission determines that the project will have significant adverse impacts on the resources then the project shall be denied.”

Resources under the jurisdiction of the bylaw include “[l]and within one-hundred (100) horizontal linear feet of any freshwater wetland.” Wetlands regulations § 3.1(e). See id. at § 10.1.2.

Here, Farmer never presented any practical alternatives to his 2015 plan. Because only a miniscule piece of land on Farmer's lot and the abutting Brook Street lot is more than one hundred feet from the wetlands, Farmer is unable to implement either the 2013 or 2015 plan outside the one hundred foot buffer zone. The GCC noted this impediment, and properly found that Farmer's 2015 plan runs afoul of the ban on new septic construction or expansion of treatment within the buffer zone.¹

3. Insufficient findings. Finally, Farmer contends that the GCC did not find sufficient facts to support its denial of his 2015 plan. We disagree. Farmer challenges various findings by the GCC, alleging that they do not have any evidentiary basis. Some of the challenged findings were not essential to the GCC's decision to deny Farmer's 2015 plan as new or enlargement of treatment, see Lycurgus v. Director of Div. of Employment Sec., 391 Mass. 623, 626-627 (1984) (findings of fact read as whole to determine whether agency found sufficient facts), and the remaining are reasonable interpretations of the evidence, worthy of deference. See Zoning Bd. of Appeals of Sunderland v. Sugarbush Meadow, LLC, 464 Mass. 166, 184 (2013) (agency, not reviewing court, to weigh evidence).

Judgment affirmed.

FOOTNOTES

1.   Notably, Farmer is not precluded from petitioning in writing for a waiver against the prohibition to a new septic construction. See wetlands regulations § 16.2.