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Pollard Case Rules Commission Must Have Specific Reasons to Reject Applicant’s Uncontradicted Evidence

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Stony Brook Wildlife Sanctuary - Norfolk, MA Stony Brook Wildlife Sanctuary - Norfolk, MA Photo by Mike George - Sun Chronicle

The state Appeals Court recently ruled that a Conservation Commission cannot deny work without explicit and objective reasons why the Commission is rejecting the applicant's uncontested evidence. In Pollard v. Conservation Commission of Norfolk, the Massachusetts Appeals Court (the "Appeals Court") said that the Commission, in disbelieving or rejecting uncontradicted evidence, cannot simply say that the applicants' evidence was "not credible" and that the applicants "failed to sustain their burden."

To have the denial upheld, a Commission must point to something in the record to explain why it finds an applicant's evidence not credible or why the applicant failed to sustain their burden of showing the proposed project met the local bylaw's interests and local wetlands regulations. The purpose of this requirement to be specific, the Appeals Court said, was to guard against arbitrary Commission rulings.

Importantly, in its December 17, 2008 decision, the Appeals Court specifically upheld right of a Commission to determine the value of expert evidence submitted during the hearings towards proving whether the project would contribute to the interests of the local bylaw and would meet the local bylaw and regulation standards.

The Appeals Court also said a Commission is not compelled to accept the evidence from an applicant if that is the only evidence submitted during a hearing.

Essentially, the Appeals Court said that a Conservation Commission, when faced with a record consisting of only the applicant's evidence, and especially when that evidence is detailed evidence submitted by an expert, cannot summarily reject it or find that its not credible. There must be reasons, based in the record, to reject the applicant's uncontested evidence, or to find that it is not credible. While a Commission could point to such reasons on appeal in court, it is better to state those reasons in the denial order.

The facts of this case were not disputed. On December 11, 2002, the applicants filed a Notice of Intent to construct a single-family, three-bedroom house, septic system, and drinking water well on a lot that was almost entirely within the 100-foot Buffer Zone of Bordering Vegetated Wetlands. The Norfolk Conservation Commission approved the project under the Wetlands Protection Act, but denied it under the local wetlands bylaw. The applicants appealed to DEP which issued a Superseding Order of Conditions approving the project.

The applicants then withdrew their Notice of Intent under the bylaw and filed a new one. During the hearing on the second Notice of Intent, the applicants presented, among other things, a detailed report by a consultant that concluded the proposed project would not impact the Buffer Zone's ability to protect the interests of the local bylaw and that the project complied with the bylaw's and regulation's requirements. No evidence was submitted during the hearing that contradicted this report or the other evidence submitted by the applicants.

The Commission again denied the project under the Bylaw. The Commission's decision contained findings that – "in general" – buffer zones were significant to the protection of many wetland interests. The denial decision stated that the applicants had submitted "no credible evidence" that the installation of the well within the 50-foot buffer zone would not harm that area. The bylaw regulations create a presumption that the 50-foot buffer zone must be vegetated unless an applicant can prove disturbance within the 50-foot buffer zone will not harm the interests of the bylaw.

Similarly, if an applicant can show that work, including mitigation, within the 100-foot Buffer Zone will not harm the bylaw's interests, such work may be allowed. The Commission found that the applicants had not overcome their burden of proof to demonstrate that the work within 100-feet "had been mitigated in full." The major mitigation offered by the applicants was a conservation easement covering about one third of the lot, including some of the 50-foot Buffer Zone.

The applicants challenged the Commission's denial in Superior Court and won. The Superior Court judge reversed the Commission's decision because it lacked substantial evidence in the record to support it. The judge noted the detailed scientific studies and testimony submitted by the applicants' expert witness, and found nothing in the record to show the Commission presented any testimony or other evidence that contradicted what the applicants filed. The Appeals Court affirmed the Superior Court decision.

While Commissions should realize they may still reject the evidence submitted by an applicant and an applicant's expert(s) as reasons for denying a project, Commissions should explain why, by pointing to facts in the record, they are rejecting the evidence or not finding it credible. Taking the time to draft and include such explanations in the denial decision will greatly enhance the chance that the Commission's denial under its wetland bylaw or ordinance will be upheld when challenged in court. Even in instances where there is testimony and evidence from more than just the applicant, say from an abutter, a Commission should explain its decision why it is believing or not believing certain evidence as the basis for its decision rather than simply saying it found the evidence "not credible" or the applicant "failed to sustain its burden of proof".

Read 7028 times Last modified on Tuesday, 07 April 2015 14:36
Nathaniel Stevens, Esq.

NATHANIEL STEVENS, Esq. is a Partner of McGregor Legere & Stevens PC. Since being admitted to the Massachusetts Bar in 1996, he has handled a broad range of environmental and land use matters, from administrative law to litigation. He has helped clients with environmental issues including permitting, development, contamination, transactions, conservation, real estate restrictions, underground tanks, water supply, water pollution, subdivision control, tidelands licensing, Boston and state zoning, coastal and inland wetlands, stormwater, air pollution, and energy facility siting.

Mr. Stevens’ work includes state court litigation over liability for property damage, insurance claims for environmental damage, cost-recovery for contamination cleanups, and damage to municipal lands and public natural resources. His permit-related and administrative litigation includes bringing and defending challenges to conservation commission permits for wetlands work, interpreting and enforcing conservation restrictions, and reviewing decisions by the Department of Environmental Protection (“MassDEP”). He handles adjudicatory proceedings in MassDEP, the Division of Administrative Law Appeals (“DALA”), the Energy Facilities Siting Board, and the U.S. Environmental Protection Agency (“EPA”).

In addition to litigation, Mr. Stevens has utilized dispute resolution and other problem-solving skills to efficiently and effectively achieve his client’s goals. This includes working with land owners and land conservation organizations on a variety of permitting, land use, and management issues.

Mr. Stevens has conducted training through the Citizen Planner Training Collaborative (“CPTC”) for Planning Boards and Zoning Boards of Appeals on the Zoning Act and Subdivision Control Law. He has led Massachusetts Association of Conservation Commission (“MACC”) workshops and training units for Conservation Commissions on the Wetlands Protection Act, Home Rule, the Open Meeting Law, and the Public Records Law.

Mr. Stevens has written for legal and environmental publications on subjects including wetlands protection law at the local and state level, quorum requirements for local boards and commissions, MassDEP regulatory reforms, Home Rule and preemption, EPA programs, and state Brownfields Law. His articles on changes to the Wetlands Protection Act and to the Permit Extension Act have been published by the Real Estate Bar Association, MACC, and the American Council of Engineering Companies of Massachusetts (“ACEC-MA”).

Mr. Stevens is a member of the American, Massachusetts, and Boston Bar Associations. He recently served as Co-chair of the Public Policy Committee of the BBA's Real Estate Section.

Mr. Stevens is a member of the Arlington Conservation Commission on which he served as Chair for many years. He served on the Board of Directors of the Arlington Land Trust, Inc. and on the Executive Committee and the Board of Directors of the Lake Sunapee Protective Association, a New Hampshire member-supported nonprofit education and research watershed protection organization.

Prior to law school, Mr. Stevens was awarded a John Knauss Sea Grant Fellowship to study national marine policy in Washington, D.C. During and after this national fellowship, he worked on wetlands policy issues in EPA’s Wetlands Division. In his first year of law school, Mr. Stevens was awarded “Best Brief” in Moot Court Competition. In his second year of law school, he obtained through a writing competition a position on one of the school’s two law journals and published an article on hydropower.

Mr. Stevens is a graduate of Vassar College and Suffolk University Law School (cum laude), with a Masters of Science in Natural Resource Policy and Planning from the University of Michigan’s School of Natural Resources.

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