ROCHESTER BITUMINOUS PRODUCTS INC v. CONSERVATION COMMISSION OF ROCHESTER (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs appeal from the judgment of a judge of the Superior Court on cross motions for judgment on the pleadings, affirming the conservation commission of the town of Rochester's (commission) decision to grant a three-year extension to the March 22, 2011 order of conditions (order) initially granted to Edgewood Development Co., LLC (Edgewood). Substantially for the reasons set forth by the judge in his thoughtful memorandum of decision, we affirm.

The order was granted in relation to Edgewood's proposed construction and operation of an asphalt-batching plant on property located in the town of Rochester (town). Pursuant to its terms, the order was valid for three years. The project, however, was the subject of a lengthy appeal culminating in an unpublished decision issued by this court on April 24, 2017. See D'Acci v. Board of Appeals of Rochester, 91 Mass. App. Ct. 1118 (2017).

Pursuant to the Permit Extension Act, St. 2010, c. 240, § 173 (a) and (b), as amended by St. 2012, c. 238, §§ 74 and 75, the parties agree that the expiration date of the order was automatically extended for an additional four years beyond the order's three-year term and, therefore, was due to expire on March 22, 2018. By letter dated January 9, 2018, Edgewood requested that the commission grant a three-year extension of the order. In its request, Edgewood noted that “an updated plan set compliant with the Planning Board requirements was provided to [the commission] this past November,” and “that there were no changes to the plans or to the site conditions that would impact the [order] as previously issued.”

The commission conducted a public hearing over several evenings, a site visit, and heard from proponents and opponents of the extension. It reviewed aerial photographs and sought the opinion of the town's conservation agent. Edgewood's “environmental scientist” submitted a response to the plaintiffs' objections to its request, attaching publicly available aerial photographs to support his opinion that “the boundaries of these wetlands as shown on the project plans have not changed since they were delineated and [the delineation] remain[s] accurate.” He explained that the wetlands at issue consist of man-made cranberry bogs and a man-made agricultural pond, and both are “heavily managed” and “exhibit abrupt, well defined edges located along steeply sloping sides.” Furthermore, he stated that a field visit conducted on February 27, 2018, showed that the wetlands had not changed since they were delineated. The commission granted the extension.

On certiorari review, the judge affirmed the commission's decision, finding that “[w]ith respect to changes in the area of the proposed project, a review of the administrative record does not show the plaintiffs, or anyone else, presented any evidence of changes to the area.” In fact, the judge found that the only evidence on the subject was that the wetlands configuration had not changed since 2010. Moreover, the judge found that the commission “heard from Edgewood's counsel, reviewed aerial photographs of [the locus], heard from the [t]own's [c]onservation [a]gent as to her opinion of any changes to the wetlands, conducted a site visit, and raised issues at the site visit that were subsequently addressed by Edgewood.” The judge concluded that the commission had “cautiously and carefully considered the [e]xtension [r]equest, including opposition by the plaintiffs' representative and [t]own residents,” and reasonably concluded that none of the reasons set forth in 310 Code Mass. Regs. § 10.05(8)(b) (2014) to justify denial of an extension request, were present.

Discussion. The parties agree that we review the decision of the commission to determine whether it was supported by substantial evidence. See T.D.J. Dev. Corp. v. Conservation Comm'n of N. Andover, 36 Mass. App. Ct. 124, 128 (1994). The plaintiffs essentially contend that the decision was unsupported by substantial evidence because it was not based on a new wetlands delineation, and it is possible that the wetlands had changed over the years. Where seven years had passed since the last wetlands delineation, the plaintiffs ask us to conclude that the commission's review was insufficient as a matter of law.

The regulations governing extensions of orders of condition, however, allow for multiple extensions for periods of up to three years each. See 310 Code Mass. Regs. § 10.05(8)(a). Furthermore, the regulations set forth criteria for denying an extension request. See 310 Code Mass. Regs. § 10.05(8)(b).

“The issuing authority may deny the request for an extension and require the filing of a new [n]otice of [i]ntent for the remaining work or a new [a]bbreviated [n]otice of [r]esource [a]rea [d]elineation in the following circumstances:

“1. where no work has begun on the project, except where such failure is due to an unavoidable delay, such as appeals, in the obtaining of other necessary permits;

“2. where new information, not available at the time the [o]rder was issued, has become available and indicates that the [o]rder is not adequate to protect the interests identified in G. L. c. 131, § 40; or

․

“5. where a resource area delineation or certification under 310 CMR 10.02(2)(b)2. in an [o]rder of [r]esource [d]elineation is no longer accurate.” 310 Code Mass. Regs. 10.05(8)(b).”

We agree with the commission and the judge that the substantial evidence shows that none of the articulated reasons to deny an extension was present. To the contrary, the record reveals, as the judge found, that the commission took reasonable steps to satisfy itself that the delineation remained accurate. Edgewood's environmental scientist's explanation that the wetlands at issue are highly maintained, man-made wetlands with steeply defined perimeters supports the inference that expansion of the wetlands was unlikely. Rather than rely on inference alone, however, the commission reviewed aerial photographs, conducted a site visit, questioned Edgewood's environmental scientist, and sought the opinion of the town's conservation agent.

The plaintiffs insist the commission ignored contrary evidence, pointing to two letters, one from an attorney who represented the plaintiffs, and one from a “professional wetlands scientist” who wrote on behalf of a group of concerned town citizens. Though asserting that the wetlands might have changed, both letters fall far short of raising a genuine issue that any change had occurred that would render the order insufficient to protect the interests identified in G. L. c. 131, § 40. In addition, no authority supports the plaintiffs' contention that because the composition of the commission has changed, the commission should reconsider the order anew. Moreover, that new construction in the vicinity of the site has taken place or is to take place, without more, does not demonstrate that the wetlands delineation has changed.⁴

The record contains no new information that indicates the order is not adequate to protect the interests identified in G. L. c. 131, § 40, or that the 2011 resource area delineation is no longer accurate. Particularly where the regulations allow for multiple three-year extensions, we decline the plaintiffs' invitation to insert a limit on the number of years an order of conditions may be extended without a new delineation of wetlands.⁵ ,⁶

Judgment affirmed.

FOOTNOTES

4.   We assume without deciding that Edgewood bore the burden of demonstrating it was entitled to the extension and have no difficulty concluding on this record that it did so; we point out the inadequacy of the evidence relied on by the plaintiffs in arguing that the commission ignored relevant, contrary evidence only to address the plaintiffs' arguments.

5.   Because of the result we reach, we decline, as the judge did, to address the issue of the plaintiffs' standing. See Mostyn v. Department of Envtl. Protection, 83 Mass. App. Ct. 788, 792 & n.12 (2013) (no absolute rule in Massachusetts standing must be addressed before merits are reached).

6.   Edgewood's request for attorney's fees and costs is denied.