AmbiguityWetlands010509.872.1
M i c h a e l P i l l , J . D . , M . A . , P h . D .
A T T O R N E Y A T L A W 37 Leverett Road, P.O. Box 242 Shutesbury, Massachusetts 01072 Phone (413) 259-1221; FAX (413) 259-3727 email mpill@verizon.net
January 5, 2009 Via email attachment only1
TO: Douglas Kohl
RE: Northern Avenue housing development in Northampton
(1) Any ambiguity, uncertainty or conflict in Northampton Wetlands Ordinance § 337-10,
subsections B & E(2)(b) is resolved in favor of the land owner;
(2) You may voluntarily comply with subsection E(2)(b) without waiving your right to argue
that it is rendered inapplicable by subsection B.
Dear Doug,
Introduction and statement of the issue
You have requested my opinion concerning subsections B and E(2)(b) of § 337-10
(entitled “Performance standards. [Amended 10-4-2007]”) of the Northampton Wetlands
Ordinance (City Code Chapter 337). Subsections 337-10 B and 337-10 E(2)(b) state as
follows (underlining added):
B. To encourage infill development, which is considered more sustainable under the principles of smart growth and generally has a smaller environmental
footprint than development in outlying areas, in the Central Business, General Business, Highway Business, Neighborhood Business, General Industrial,
Special Industrial, Planned Village, Medical, Urban Residential-B and Urban
Residential-C Zoning Districts, within those portions of the Water Supply
Protection Overlay District which was zoned industrial as of January 1, 2006, the Conservation Commission hereby waives any of the § 337-10 performance
standards that are over and above state law with the exception of the setback
1 When sent via email attachment only, this legal opinion letter shall have the same force and effect as a signed hard copy original.
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requirements in Table (1). The reduced setback requirements in Table (1) shall apply.
* * * * * *
E. Work within upland areas adjacent to wetlands. A growing body of
research evidence suggests that even "no disturbance" areas reaching 100 feet from wetlands may be insufficient to protect many important wetland resource
characteristics and values. Problems with nutrient runoff, erosion, siltation, loss
of groundwater recharge, poor water quality, vegetation change and harm to wildlife habitat are greatly exacerbated by activities within 100 feet of wetlands.
These impacts may happen either immediately, or over time, as a consequence
of construction, or as a consequence of daily operation. Thus, in general, work
and activity within 100 feet of wetlands should be avoided and discouraged and reasonable alternatives pursued.
* * * * * *
(2) The City's general policy is no encroachment within 50 feet of wetlands. The Commission may allow work within the fifty-foot
nonencroachment zone in response to a written request for a
waiver, which shall include a written and plan view assessment as part of the application process as follows:
* * * * * * (b) Projects in certain infill areas, in accordance
with Table (1) in § 337-10, where development
includes mitigation measures that will improve the existing condition of the wetlands or adjacent upland
area and is otherwise permissible under the Massachusetts Wetlands Protection Act.
* * * * * [Table 1:]
Zoning District No-Encroachment Zone
* * * * *
Urban Residential-B 35 feet from wetlands
and 10 feet from wetlands may be allowed at the
Urban Residential-C discretion of the Conservation Commission if applicant provides extraordinary mitigation, replication, restoration or open space preservation
measures
The fact that Table 1 is not expressly labeled in the above quoted ordinance does not
mean there is any ambiguity about what constitutes that table. It does not, for example, open
the door to trying to claim that subsection E(2)(b) is somehow part of Table 1.
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Subsection B quoted above is a statement of public policy supporting “infill
development” that creates an exemption, which is implemented by the specific provisions of
Table 1. Table 1 specifies a 35 foot unqualified no-build zone around wetlands, and a 10 foot
no-build zone at the discretion of the Conservation Commission “if applicant provides
extraordinary mitigation, replication, restoration or open space preservation measures.” The
other performance standards of Section 337-10 are expressly rendered inapplicable by the
above quoted “infill development” exemption in subsection B to the extent they are “are over
and above state law with the exception of the setback requirements in Table (1). The reduced
setback requirements in Table (1) shall apply.”
(1) Any ambiguity, uncertainty or conflict in Northampton Wetlands Ordinance §
337-10, subsections B & E(2)(b) is resolved in favor of the land owner;
Any ambiguity, uncertainty, or conflict in the Northampton Wetlands Ordinance should
be resolved in favor of less restrictive regulation of land use, because local land-use
legislation should be construed strictly against the municipality.
Provisions in a land use regulation ordinance are considered ambiguous when they
are either undefined in the ordinance, or can be interpreted in more than one way. See Slater
v. U.S. Fidelity and Guaranty Co., 379 Mass. 801, 804, 400 N.E.2d 1256, 1259 (1980) (Use
of phrase in an insurance policy, “without giving a definition or other aid to help determine the
sense in which the words were used, gives rise to an ambiguity which must be construed
against the insurer, who wrote the policy.”); Panesis v. Loyal Protective Life Insurance Co., 5
Mass. App. Ct. 66, 71, 359 N.E.2d 319, 323 (1977) (“If an insurer chooses to use language in
a policy which permits two rational interpretations, that more favorable to the insured is to be
adopted.”).
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A leading Massachusetts legal treatise sums up the governing principles in these
words:
It is often stated in zoning treatises and cases from other jurisdictions that zoning
regulations shall be strictly construed against the municipality because they are
in derogation of the common law rights attached to the private ownership of land.
See, e.g., 6 P. Rohan, Zoning and Land Use Controls, § 36.03(2) (1994 & Supp.
1994) and the cases cited therein at n. 9. Generally, this formulation is not found
in Massachusetts cases. But see Manchester v. Phillips, 343 Mass. 591, 596,
180 N.E.2d 333, 337 (1962) (“[t]here is no such ambiguity about the language of the by-law as to lead us to interpret it strictly against the public interest
because it
will operate in derogation of the landowner’s ability at common law to make
unrestrained use of his property”). See also Moore v. Marblehead, Land Court, Misc. Case No. 124963 (Apr. 7, 1989) (where zoning bylaw silent on designation
of front lot line for lots that are not corner lots, determination of front line should be that most favorable to, or chosen by, the landowner).
Martin R. Healy (ed.), 1 Massachusetts Zoning Manual, § 12.2.4 “Strict vs. Liberal
Construction” at page 12-9 (4th ed. 2007).
Local wetland ordinances and bylaws are in derogation of common law property rights
because they are an exercise of the government’s police power. Lovequist v. Conservation
Commission of Town of Dennis, 379 Mass. 7, 19-20, 393 N.E.2d 858, 866 (1979) and cases
cited in the second paragraph of section 4 of the court’s decision entitled “Unconstitutional
taking.”
Manchester v. Phillips, supra, cited an earlier decision, which stated, “statutes and
building laws made in derogation of the common law are to be construed strictly.” Corcoran v.
S.S. Kresge Co., 313 Mass. 299, 303, 47 N.E.2d 257, 259 (1943). The Corcoran case was
cited by the Massachusetts Supreme Judicial Court in 2004 for the same proposition, in these
words: “[S]tatutes like MAPA [Massachusetts Art Preservation Act] that alter common-law
property rights and impose new obligations totally unknown at common law are ordinarily
construed strictly, Corcoran v. S.S. Kresge Co., 313 Mass. 299, 303, 47 N.E.2d 257 (1943),
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unless the obvious legislative purpose behind the statute would be defeated by doing so.”
Phillips v. Pembroke Real Estate, Inc., 443 Mass. 110, 119 n. 12, 819 N.E.2d 579, 585 n. 12
(2004). In the case of the Northampton Wetlands Ordinance, the stated purpose of the
exemption created by § 337-10, subsection B (quoted in full above in this memorandum) is as
follows:
To encourage infill development, which is considered more sustainable under the principles of smart growth and generally has a smaller environmental footprint
than development in outlying areas, … the Conservation Commission hereby
waives any of the § 337-10 performance standards that are over and above state
law with the exception of the setback requirements in Table (1). The reduced setback requirements in Table (1) shall apply.
To impose on an “infill development” the provisions of subsection 337-10 E(2)(b) would
defeat the above quoted legislative purpose of promoting such projects. Under these
circumstances, the exemption of subsection 337-10 B must prevail.
The holding in Corcoran v. S.S. Kresge Co., supra, is consistent with a canon of
statutory construction so well established that it is cited in the leading national treatise on the
subject, which states the rule in these words:
Statutes which impose duties or burdens or establish rights or provide benefits
not recognized by the common law have frequently been held subject to strict, or
restrictive, interpretation. Where there is any doubt about their meaning or intent
they are given the effect which makes the least, rather than the most, change in the common law. [FN1]
Norman J. Singer and J.D. Shambie Singer, 3 Sutherland Statutory Construction § 61:1
“Strict construction of statutes in derogation of common law” at note 1 (6th ed. & Supp. 2008).
The Land Court case cited above by the Massachusetts Zoning Manual presented the
court with a lot which fronted on two different roads. Moore v. Town of Marblehead, Misc.
Case No. 124963, Decision and Judgment dated April 7, 1989 (A copy of this case is
available from the Hampshire County Law Library collection as their Land Court Opinion No.
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660, or upon request from Michael Pill). The lot in question in the Moore case was bounded
on one side by a public way, and on the opposite side by a private way. The court was called
upon to determine which street line constituted the “front lot line” for zoning purposes:
As stated, there are two issues to be determined. First, whether the front lot line,
or “Lot Line, Front” as defined by the Zoning By-law, is at the southerly end
abutting on Redstone Lane, or on the northerly end abutting the right of way. The
Zoning By-law definitions are not particularly helpful in this determination. Section
II.1M defines “Lot Line, Front” as a “line separating the lot from a street or private
way.” The definition of “Lot Line, Rear”, as stated in Section II.1N of the Zoning
By-law, offers some guidance in establishing that for a corner lot “the rear lot line
shall be the line opposite from the street on which the principal building faces.” Of
course, the Plaintiff’s lot is not a corner lot nor does the building face either a
street or way. From the most recently filed plan, it appears that the building faces westerly, with its principal access, as noted by a Board member, apparently
being via the right of way along the northerly end of the property to Allerton
Place. Rather than determine the lot line by the placement of the building, or what appears to be the probable most convenient access route, a probability
which could vary, I determine the front lot line to be on the undisputedly public,
and most likely permanent access, Redstone lane. While, as I find below, the
northerly right of way is a private way, it is not a private way open to the public
nor one “used and maintained as a public way.” It is more in the nature of a
driveway than a public way. As noted, I find nothing in the Zoning By-law (except
for the inapplicable Section II.1N) which determines the “front” of the lot by the
facing of the building or the generally used access. Indeed it would appear that the southerly garages can be accessed from Redstone Lane only. Moreover,
where the Zoning By-law is specific as to corner lots and silent as to other lots,
the determination of the front line in instances such as this should be that most
favorable to, or chosen by, the land owner. [Underlining added.]
Moore v. Town of Marblehead, supra, at pages 3-4.
Under the rule adopted by the Land Court in Moore v. Town of Marblehead, supra, if
there is any remaining question about possible ambiguity in the Northampton Wetlands
Ordinance, it should be resolved in favor of the land owner who is the project applicant.
The authors of the Massachusetts Zoning Manual, quoted above, apparently missed
the court case of Clarke v. Board of Appeals of Nahant, 338 Mass. 473, 155 N.E.2d 754
(1959). There the court took the position that in order to compel a merger of two adjoining
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“back-to-back” lots with frontage on separate streets, the drafters of a local by-law “should
have expressed that intention more clearly, if that was their purpose.” 338 Mass. at 480, 155
N.E.2d at 757. The ambiguity in the zoning bylaw was resolved in the landowner’s favor. 338
Mass. at 480, 155 N.E.2d at 758. The Massachusetts Zoning Manual also omits Town of
Auburn v. Johnson, 11 Mass. App. Ct. 1037, 1037, 421 N.E.2d 88, 88-89 (1981) (“Had the
drafters of the by-law intended the term ‘existing trailer park’ to mean ‘existing trailer camps
occupying the same land as now occupied’, they should have made such intention clear.
They should have defined the term or otherwise indicated their purpose within the by-law.”)
citing Manchester v. Phillips, 343 Mass. 591, 595-596, 180 N.E.2d 333 (1962) and 3
Anderson, American Law of Zoning s 16.02 (2d ed. 1977).” Both Clarke v. Board of Appeals
of Nahant, supra, and Town of Auburn v. Johnson, supra, suggest that the Northampton City
Council may if it wishes clarify the Wetlands Ordinance, but in the meantime the ordinance is
to be interpreted in favor of the land owner.
(2) You may voluntarily comply with subsection E(2)(b) without waiving your right
to argue that it is rendered inapplicable by subsection B.
You may, if you wish, choose to show voluntarily that the Northern Avenue project
does satisfy subsection 10-337 E(b)(2) because it is a:
development [which] includes mitigation measures that will improve
[i] the existing condition of the wetlands or
[ii] adjacent upland area
and is otherwise permissible under the Massachusetts Wetlands Protection Act.
[Letters in brackets added as an aid in parsing subsection E(2)(b).] .
If you choose to do so, you reserve your right to argue that: subsection E(2)(b) is not part of
Table 1; or, subsection E(2)(b) is included in the exemption set forth in subsection B of §
337-10; or, both.
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To comply with the wording of subsection E(2)(b), you would have to show that the
“development includes mitigation measures that will improve” either “the existing condition of
the wetlands or adjacent upland area [italics added],” in addition to demonstrating that the
development “is otherwise permissible under the Massachusetts Wetlands Protection Act.”
Whether the Northern Avenue project will improve either “the existing condition of the
wetlands or adjacent upland area [italics added]” is a technical question to be answered by
qualified experts.
I can frame the issue for the question of whether the project “is otherwise permissible
under the Massachusetts Wetlands Protection Act.” The state wetlands regulations make
clear that the issue is whether activity in the buffer zone will have an impact on the wetland
resource area. 310 CMR 10.02 (2)(b) (“Any activity … proposed or undertaken within … the
Buffer Zone, which, in the judgment of the issuing authority, will alter an area Subject to
Protection under M.G.L. c. 131, § 40 is subject to regulation under M.G.L. c. 131, § 40 and
requires the filing of a Notice of Intent.”). The Department of Environmental Protection
“Commentary” at the end of 310 CMR 10.02 states that “The issuing authority shall not
require the filing of a Notice of Intent of it determines that the activity proposed within the
Buffer Zone will not alter an Area Subject to Protection under M.G.L. c. 131, § 40.”
The words “activity” and “alter” appearing in the above quoted state wetland
regulations are both technical terms defined this way in 310 CMR 10.04 “Definitions”:
Activity means any form of draining, dumping, dredging, damming, discharging,
excavating, filling or grading; the erection, reconstruction or expansion of any
buildings or structures; the driving of pilings; the construction or improvement of
roads and other ways; the changing of run-off characteristics; the intercepting or
diverging of ground or surface water; the installation of drainage, sewage and
water systems; the discharging of pollutants; the destruction of plant life; and any
other changing of the physical characteristics of land.
* * * * * *
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Alter means to change the condition of any Area Subject to Protection Under
M.G.L. c. 131, § 40. Examples of alterations include, but are not limited to, the following:
(a) the changing of pre-existing drainage characteristics, flushing characteristics, salinity distribution, sedimentation patterns, flow patterns and flood retention
areas;
(b) the lowering of the water level or water table;
(c) the destruction of vegetation;
(d) the changing of water temperature, biochemical oxygen demand (BOD), and other physical, biological or chemical characteristics of the receiving water.
Provided, that when the provisions of 310 CMR 10.03(6) and 10.05(3) or 333
CMR 11.03(9) have been met, the application of herbicides in the Buffer Zone in
accordance with such plans as are required by the Department of Food and Agriculture pursuant to 333 CMR 11.00: Right of Way Management, effective
July 10, 1987, is not an alteration of any Area Subject to Protection Under M.G.L.
c. 131, § 40.
Whether any proposed project “activity” will “alter” wetland resource areas on the
project site is a technical question to be answered by qualified expert consultants.
Conclusion
On the one hand, compliance with subsection E(2)(b) is not required for the reasons
set forth above in section (1) of this memorandum. On the other hand, voluntary compliance
with subsection E(2)(b), as outlined in section (2) infra, eliminates any legitimate basis for
legal challenge on that ground by project opponents.
Please let me know if you have questions or need additional information concerning
anything set forth above.
Very truly yours,
Michael Pill
MP/csh/L1.872.1.NorthernAve
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