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".
