First, the plaintiffs maintain that, because art. 15 regulates land use, it is by nature a zoning enactment. Since G.L. c. 40A [MASS. GEN. LAWS ch. 40A] preempts the manner and method in which a municipality may exercise its zoning power, Canton v. Bruno, 361 Mass. 598 (1972), the plaintiff conclude that art. 15 circumvents the legislature's mandate inasmuch as the procedures either directed or implied by the bylaw are not identical to those of the zoning statute. Observing that this court has approved other towns' wetland bylaws as exercises of the zoning power, e.g., MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 [6 ELR 20444] (1976); Turnpike Realty Co. v. Dedham, 362 Mass. 221 [3 ELR 20221] (1972), cert. denied, 409 U.S. 1108 (1973); Golden v. Selectmen of Falmouth, 358 Mass. 519 [1 ELR 20095] (1970), the plaintiffs urge the generalized view that all local wetlands enactments are zoning measures and must comply with the procedural protections of G.L. c. 40A [MASS. GEN. LAWS ch. 40A].⁵

We reject this argument. We do not consider all ordinances or bylaws that regulate land use to be zoning laws, and we do not view art. 15 to be a zoning enactment. The thrust of art. 15, we discern, is to give the town conservation commission, a body created under G.L. c. 131 [MASS. GEN. LAWS ch. 131], § 40, the power to permit or to disallow "any removal, dredging, filling, or altering of subject lands within the town" in accord with the stated purpose of protecting the local foreshores and wetlands. In its present form, and particularly as applied in this case, art. 15 is comparable to an earth removal enactment, a kind of general bylaw expressly permitted by statute. G.L. c. 40 [MASS. GEN. LAWS ch. 40], § 21(17).⁶ Notably adoption of such bylaws or ordinances has been determined valid by this court even in those instances where the town has a zoning bylaw. Beard v. Salisbury, __ Mass. __, __ n.7 (1979); Byrne v. Middleborough, 364 Mass. 331, 334 (1973). It is, of course, clear that non-zoning earth removal enactments need not comply with the prescriptions stated in G.L. c. 40A [MASS. GEN. LAWS ch. 40A], since the requirements of the zoning laws are applicable only if a town chooses to adopt a zoning bylaw. Cf. Canton v. Bruno, 361 Mass. 598, 603 (1972).

Apart from this consideration, however, we should be reluctant to classify the instant bylaw as a zoning measure for the reason that art. 15 manifests neither the purpose nor the effects of a zoning regulation. The Dennis bylaw does not prohibit or permit any particular listed uses of land or the construction of buildings or the location of businesses or residences in a comprehensive fashion. On its face it does not deny or invite permission to build any structure. It does not regulate density. Instead, it specifies that permission be obtained from the commission based on factual circumstances surrounding individual applications.

Significantly, art. 15's impact on land use follows only from its dominant purpose to protect wetlands values — e.g., public or private water supply, ground water, flood control, erosion control, storm damage, water pollution, fisheries, shellfish, wildlife, recreation, and esthetics. These wetland values, moreover, do not include air pollution, noise, demands for sewers and other municipal services or the character of the community and the compatibility of nearby land uses, all typical of the concerns usually reflected in the zoning process.

The instant case, moreover, is readily distinguishable from the facts in Rayco Inv. Corp. v. Selectmen of Raynham, 368 Mass. 385 (1975), the case on which the plaintiffs ground their contention that bylaws regulating land use can be enacted only pursuant to the Zoning Enabling Act. In Rayco this court held that a town bylaw limiting the total number of trailer park licenses in the town was to be viewed as a zoning regulation due to the historical context in which it had been enacted. We observed in that case that for a considerable number of years the town had been governed by a zoning bylaw which "purported to cover [the] subject [of trailer parks] in a comprehensive fashion," and we thus determined that the challenged bylaw was most appropriately viewed as an amendment to that enactment. Id. at 393. In the case presently before us, no evidence has been introduced that there is or ever has been a comprehensive zoning bylaw governing the wetland activities proposed by the plaintiffs.Rayco, moreover, nowhere suggests that municipal regulations that simply overlap with what may be the province of a local zoning authority are to be treated as zoning enactments which must be promulgated in accordance with the requirements of G.L. c. 40A [MASS. GEN. LAWS ch. 40A]. Because we think it manifest that art. 15 is not a zoning regulation, the holding of Rayco is inapposite to this case.

Turning to the plaintiffs' second claim of state-local conflict, we likewise detect no inconsistency between art. 15 and the provisions of the commonwealth's Wetlands Protection Act, G.L. c. 131 [MASS. GEN. LAWS ch. 131], § 40. We find unconvincing the plaintiffs' assertion that, because G.L. c. 131 [MASS. GEN. LAWS ch. 131], § 40, does not give any express or implied powers to a municipality to adopt wetlands bylaws outside of a zoning framework, general bylaws concerning wetlands protection contravene the wetlands statute. It is our opinion that nothing in G.L. c. 131 [MASS. GEN. LAWS ch. 131], § 40, intimates such a result and that § 60 of the Home Rule Amendment suggests the contrary.

Yet, the plaintiffs allege additionally that art. 15 is inconsistent with the wetlands statute because the bylaw gives the conservation commission specific power to prohibit outright any disturbance of covered lands, whereas G.L. c. 131 [MASS. GEN. LAWS ch. 131], § 40, merely allows conservation commissions to "impose such conditions as will contribute to the protection of the interests" described in the statute. This, in our view, does not represent a conflict between state and local law. Since the language of the bylaw parallels that of the statute, it appears plain that art. 15 furthers — rather than derogates from — the legislative purpose embodied in the Wetlands Protection Act. Bloom v. Worcester, 363 Mass. 136, 156 (1973). Indeed, we have specifically held that G.L. c. 131 [MASS. GEN. LAWS ch. 131], § 40, sets forth minimum standards only, "leaving local communities free to adopt more stringent controls." Golden v. Selectmen of Falmouth, 358 Mass. 519, 526 [1 ELR 20095] (1970). While we recognize that Golden was a consideration of a zoning bylaw, we can conceive of no reason [9 ELR 20732] why the Wetlands Protection Act would be any more frustrated by a bylaw enacted pursuant to town powers outside the zoning authority. Moreover, we take notice of the fact that pursuant to regulations promulgated under § 40, conservation commissions for almost five years have had a prerogative to prohibit construction which might injure wetland areas. Regulations under the Wetlands Protection Act, Regs. 2.27, 6.3, 9 CODE MASS. REGS. 337A, 337H, and 337N (November 11, 1974).

Finally, the plaintiffs assert that the bylaw is inconsistent with the wetlands statute because the local enactment does not parallel § 40's provisions for administrative and judicial review of commission decisions. Under the statute, but not the bylaw, there is an administrative review before the Department of Environmental Quality Engineering as well as judicial review in accordance with G.L. c. 30A [MASS. GEN. LAWS ch. 30A]. This disparity, we think, does not rise to the level of conflict. We observe that a person aggrieved by a commission decision under the bylaw is in no way deprived of rights of review. Such person has exactly the same remedy under art. 15 as is available under any other non-zoning bylaw — an action in the nature of certiorari under G.L. c. 249 [MASS. GEN. LAWS ch. 249], § 4. The fact that administrative appeals to the state may not be available under art. 15, does not make the bylaw inconsistent with the Wetlands Protection Act.

2. Bias

We next turn to the plaintiffs' argument that they were denied procedural due process because the commission was predisposed against them. In support of this claim, the plaintiffs point to a "mandate" from the the Town of Dennis calling for the preservation and acquisition of natural wetlands⁷ and to the fact that a member of the commission, for purposes of the case, stepped down from the board in order to advocate actively that the construction permit be denied.⁸ Neither of these incidents, we believe, rendered the commission proceeding constitutionally infirm.

We observe initially that the plaintiffs have produced no evidence regarding the effect this "mandate" might have had in influencing the commission's determination. There is no indication that any of the commissioners were guided in their determination by the hope of pecuniary or other personal gain. It is significant that the commission, for its part, expressly stated that it didnot consider as a basis for its final decision any dedications of open space in the area, any town acquisition program, or the desirability of acquiring this parcel. We see no hint that such was not the case. Moreover, we note that the commission welcomed the submission of alternative proposals by the plaintiffs. In brief, nothing in the record disturbs the assumption that the commissioners acted as men of conscience and intellectual discipline, who fairly judged this particular controversy on the basis of its own circumstances. Skelly Oil Co. v. Federal Power Comm'n, 375 F.2d 6, 18 (10th Cir. 1967), modified on other grounds sub nom. Permian Basin Area Rate Cases, 390 U.S. 747 (1968). See K.C. DAVIS, ADMINISTRATIVE LAW OF THE SEVENTIES § 12.01 (1976).

There is even less force to the claim of bias predicated on the fact that a member of the commission, Dr. Norton Nickerson, championed the case against the plaintiffs' application. As the plaintiffs concede, Dr. Nickerson did not participate in either the commission's deliberations or in its ultimate decision. Thus, assuming his opposition to the proposed construction, Dr. Nickerson's abstention from participation should be viewed, if anything, as helpful, rather than prejudicial, to the plaintiffs' cause. Compare Comment, Disqualification of Federal Judges for Bias or Prejudice, 46 U. CHI. L. REV. 236 (1978). Clearly no constitutional rights were impaired by his action. Rather, the record indicates that the plaintiffs received a full and fair hearing before the commission. Indeed, even where an agency itself combines investigative and judicial functions, this fact alone is seldom basis for relief under the due process clause. Pangburn v. Civil Aeronautics Bd., 311 F.2d 349, 356 (1st Cir. 1962).

3. Substantial Evidence

A more serious question is raised by the plaintiffs' claim that the commission's decision disapproving their application to develop a marshland access road was not based on substantial evidence of anticipated wetland injury resulting from the road construction. Past cases have amply demonstrated the necessity that local planning authorities base their decisions on reasoning relevant to the evidence presented before them. See MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512, 516 (1976) (MacGibbon III); MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 (1970) (MacGibbon II); MacGibbon v. Board of Appeals of Duxbury, 347 Mass. 690 (1964) (MacGibbon I). However, in the matter presently before us, we think that the commission's conclusion was fully supported by "substantial evidence" in the record. See Dane v. Registrars of Voters of Concord, Mass. (1978); e Hershkoff v. Registrars of Voters of Worcester, 366 Mass. 570, 574 (1974); Bunte v. Mayor of Boston, 361 Mass. 71, 74 (1972); Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79, 92 (1968).

The principal reason the commission offered for its denial of the plaintiffs' application was the deleterious effect that such construction would have in reducing the ground water supply. It was disclosed during the proceeding that the proposed road would be constructed on fill, with all the natural peat first removed, along a length between 100 and 280 feet and about 80 feet wide. Excavation was to take place below the water table of the marsh and would strip away 6,000 cubic yards of peat to a depth of five feet along the length of the road.⁹ The excavated peat would be replaced by 9,000 to 12,000 cubic yards of sand and gravel, substances having an admittedly greater porosity than that of peat. An estimated 20 percent of the wetland would be removed.¹⁰

On the basis of these facts, the commission could properly find that the result of replacing the relatively impermeable peat with more permeable materials, through which ground water could flow, would be a permanent ground water loss for the town. All parties agreed that the water source on the plaintiffs' property is part of a much larger and important ground water supply located in underground reservoirs throughout the adjoining area. Thus, the effect of the excavation could be aptly analogized, as one of the witnesses before the commission so stated, to "taking the plug out of a bathtub." Having held that the protection of ground water is a valid public interest, Turnpike Realty Co. v. Dedham, 362 Mass. 221, 227-229 [3 ELR 20221] (1972),¹¹ we think the commission did not act improperly in denying the plaintiffs permission for the proposed road construction.¹²

4. Unconstitutional Taking

Lastly, the plaintiffs challenge the commission's action on [9 ELR 20733] the due process ground that the denial of a road construction permit deprived them of property without compensation. Prohibited from developing the proposed road, their plans for a subdivision, and their hopes for a sizable profit, are effectively nullified, they claim. This potential loss of income, it is asserted, warrants due process protection. We disagree.

There can be no doubting the proposition that property may be subject to reasonable restraints and regulation in the public interest. Commonwealth v. Alger, 7 Cush. 53, 85-86 (1851). Indeed, governmental decisions may deprive an owner of a beneficial property use — even the most beneficial such use — without rendering the regulation an unconstitutional taking. Penn. Cent. Transp. Co. v. New York City, 438 U.S. 104, 123-128 [8 ELR 20528] (1978). Goldblatt v. Hempstead, 369 U.S. 590, 592 (1962). Turnpike Realty Co. v. Dedham, 362 Mass. 221, 234-235 [3 ELR 20221] (1972). Burlington v. Dunn, 318 Mass. 216, 222 (1945). Cf. United States v. 564.54 Acres of Land, U.S. (1979); f Malone v. Commonwealth, Mass. (1979). g What may be characterized as forbidden takings are those governmental actions which strip private property "of all practical value to them or to anyone acquiring it, leaving them only with the burden of paying taxes on it." MacGibbon III, supra at 517, quoting MacGibbon II, supra at 641. See also Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922); Commissioner of Natural Resources v. S. Volpe & Co., 349 Mass. 104 (1965).

Viewed accordingly, it is clear that no taking has occurred. We observe at the outset that the plaintiffs themselves presented little evidence of projected loss. The only support this claim finds in the record is a hearsay statement by one of the plaintiffs that he had been offered $250,000 for the property should construction permits be approved. More significantly, however, the commission found, and the trial judge concurred, that even without an improved access road there were other practical uses available for the property: a single family house, a camp, or commercial cranberry production.¹³ Compare MacGibbon III, supra. No evidence was offered suggesting that these were not viable alternatives.

Furthermore, a recent appraisal of the plaintiffs' property revealed its value to be $122,000. Hence, should the plaintiffs immediately dispose of the property they stand to gain over 200 percent profit, considering that they purchased the parcels for a sum of $38,200. Whatever loss of additional profit may be implicated by the commission's denial of a construction permit is insufficient to constitute an unlawful taking. Turnpike Realty Co. v. Dedham, 362 Mass. 221, 236 [3 ELR 20221] (1972). Steel Hill Dev., Inc. v. Sanbornton, 469 F.2d 956, 963 [3 ELR 20018] (1st Cir. 1972).

5. Summary

Forthe reasons outlined above, the order of the commission was correct. Accordingly, the judgment is affirmed.

So ordered.

1. [Plaintiffs Lovequist and Harold Gursha are trustees of the Gurshall Realty Trust — Ed.]

a. Mass. Adv. Sh. (1977) 2676.

2. The land is called a "neck" because it is an area of upland that extends into the Chase Garden Creek marsh area and is separated from the "mainland" by an overgrown cranberry bog.

3. In pertinent part, art. 15 provides:

1. The purpose of this by-law is to protect the foreshores and wetlands of the Town of Dennis by controlling activities deemed to have a significant effect upon wetland values, including but not limited to the following: Public or private water supply, groundwater, flood control, erosion control, storm damage, water pollution, fisheries, shellfish, wildlife, recreation, and esthetics. No person shall remove, fill, dredge, or alter any bank, fresh water wetland, coastal wetland, beach, dune, flat, marsh, meadow, bog, swamp, or lands bordering on the ocean or on any estuary, creek, river, stream, pond or lake, or any land under said waters or any land subject to tidal action, coastal storm flowage, or flooding, other than in the course of maintaining, repairing or replacing, but not substantially changing or enlarging, an existing and lawfully located structure or facility used in the service of the public and used to provide electric, gas, water, telephone, telegraph and other telecommunication services, without filing written notice of his intention to so remove, fill, dredge or alter and without receiving and complying with an order of conditions and provided all appeal periods have elapsed. Such notice shall be sent by certified mail to the Dennis Conservation Commission, including such plans as may be necessary to describe such proposed activity and its effect on the environment. The same notice, plans and specifications required to be filed by an applicant under Massachusetts General Laws, Chapter 131, Section 40, will be accepted as fulfilling the requirements of this by-law. The said Commission, in its discretion, may hear any oral presentation under this by-law at the same public hearing required to be held under the provisions of said Chapter 131, Section 40, of the Massachusetts General Laws. . . .

4. The Conservation Commission is empowered to deny permission for any removal, dredging, filling, or altering of subject lands within the town if, in its judgment, such denial is necessary to preserve environmental quality of either or both the subject lands and contiguous lands. Due consideration shall be given to possible effects of the proposal on all values to be protected under this by-law and to any demonstrated hardship on the petitioner by reason of a denial, as brought forth at the public hearing.

Section 1 of art. 15 is directly modeled on the language of G.L. c. 131 [MASS. GEN. LAWS ch. 131], § 40.

4. At the same time, the commission disapproved a permit under G.L. c. 131 [MASS. GEN. LAWS ch. 131], § 40. From this decision of denial, the plaintiffs filed a statutory appeal to the Departmet of Natural Resources (now the Department of Environmental Quality Engineering). That administrative appeal was still pending as of the time this case was argued.

b Mass. Adv. Sh. (1979) 1703.

c Mass. Adv. Sh. (1978) 2297.

5. These protections, the plaintiffs claim, consist of: (1) the requirement of a planning board hearing on any proposed zoning bylaw or amendment, G.L. c. 40A [MASS. GEN. LAWS ch. 40A], § 5; (2) the requirement that such bylaws be adopted by a two-thirds vote of the town meeting, id.; (3) the right of appeal to an impartial board of appeals for the purpose of obtaining either a special permit or a variance, G.L. c. 40A [MASS. GEN. LAWS ch. 40A], §§ 12 and 14; and (4) the right of review de novo in superior court, G.L. c. 40A [MASS. GEN. LAWS ch. 40A], § 17.

6. Under this direct statutory grant municipalities are empowered to enact bylaws or ordinances "[f]or prohibiting or regulating the removal of soil, loam, sand or gravel from land not in public use in the whole or inspecified districts of the town . . . ." See Beard v. Salisbury, Mass. (1979) (Mass. Adv. Sh. [1979] 1703); Byrne v. Middleborough, 364 Mass. 331 (1973); Butler v. East Bridgewater, 330 Mass. 33 (1953); Dawson, Earth Removal and Environmental Protection, 3 ENVT'L AFF. 166 (1974).

d Mass. Adv. Sh. (1979) 1703, 1708 n.7.

7. The area proposed for the road construction is part of a wetland area over which the town, since 1965, has empowered the commission to accept gifts and make purchases as funds allow. There was no evidence presented that any such property has been so obtained.

8. In order to present the case against the plaintiffs' application, the chairman of the commission, Dr. Norton Nickerson, excused himself from the commission during these proceedings on this matter.

e Mass. Adv. Sh. (1978) 21, 26.

9. The amount of peat excavated was said to be equivalent to 300 standard 20-yard dump truck loads.

10. There was also evidence introduced before the commission indicating that the dumping of fill where peat formerly lay could lead to significant ground water pollution.

11. Restriction of wetlands development for the protection of water supplies has increasingly been upheld by courts in other jurisdictions. See, e.g., United States v. D'Annolfo, No. 79-1247-MC (D. Mass., filed July 5, 1979); Candlestick Properties, Inc. v. San Francisco Bay Conservation & Dev. Comm'n, 11 Cal. App. 3d 557 [3 ELR 20446] (1970); Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349 [5 ELR 20319] (1975); Potomac Sand & Gravel Co. v. Governor of Maryland, 266 Md. 358 [2 ELR 20466] (1972); Sibson v. State, 115 N.H. 124 [5 ELR 20300] (1975); J.M. Mills, Inc. v. Murphy, 116 R.I. 54 [6 ELR 20455] (1976); Just v. Marinette County, 56 Wis. 2d 7 [3 ELR 20167] (1972).

Moreover, it has been observed that an increasing number of communities in the commonwealth face critical water supply shortages created by increased consumption, degradation of existing supplies, and lack of additional supplies. Report of the Special Commission Relative to Determining the Adequacy of Water Supply in the Commonwealth, 1979 House Doc. No. 5596.See generally Dawson, Protecting Massachusetts Wetlands, 12 SUFFOLK L. REV. 755 (1978).

12. The plaintiffs also maintain that the commission erred by considering the ground water effects of the proposed subdivision in its determination. Since we find the evidence relating to road construction sufficient in itself to support the commission's decision, and because the record indicates that the commission likewise regarded this evidence as adequate to justify its determination, we do not reach this question.

f 99 S. Ct. 1854 (1979).

g Mass. Adv. Sh. (1979) 1250.

13. The commission expressly indicated its willingness to consider proposals relating to the upgrading of the existing access road in order to assist the development of these uses.

9 ELR 20730 | Environmental Law Reporter | copyright © 1979 | All rights reserved