Local Preemption and Wetlands in Massachusetts
The Massachusetts Appeals Court (the intermediate appellate court) has decided two cases this month addressing when a local conservation commission can impose conditions on development that affects wetlands in addition to conditions imposed by the Commonwealth’s Department of Environmental Protection. In both cases, the local commission did not grant an order (effectively a permit), but the DEP in a superseding decision did issue an order. When the local commission bases its denial on a local bylaw (that is, an ordinance) more environmentally protective than the Wetlands Protection Act, Mass. Gen. Laws ch. 130, § 40, the local denial governed. Dobinski v. Cons. Comm’n of Eastham, No. 20-P-1313 (Mass. App. Jan. 13, 2022)(unreported). When the local commission did not hold its hearing, however, within the statutory 21-day time frame, it lost its jurisdiction to deny the order of conditions even on the basis of a more protective bylaw. Boston Clear Water Co. v. Town of Lynnfield, No. 21-P-166 (Mass. App. Jan. 26, 2022).
Under the WPA, a person wishing to do any work in or near a regulated waterbody must first submit a notice of intent to do the work to the local conservation commission. The commission must hold a hearing within 21 days, and then either grants or denies an order of conditions. If the commission fails to act, denies an order, or issues an order on unfavorable conditions, a disappointed applicant can then apply to the DEP for a superseding order of conditions, presumably on less stringent terms. (A disappointed opponent to the work can apply to the DEP for a superseding order on more stringent terms.)
An applicant that obtains a satisfactory DEP order can proceed, unless the local commission enforces a more stringent condition of its local bylaw. The court applied that rule to Dobinski, who sought permission to construct a boardwalk across his dune to the beach on Cape Cod. Even though DEP issued a superseding order allowing the boardwalk, the commission could still prohibit the work because it was enforcing what the commission concluded was a more protective bylaw, and the court found that conclusion not to be arbitrary or unreasonable.
On the other hand, in Boston Clear Water, the applicant sought permission to repair a springhouse. The local commission could not assemble a quorum during the 21-day period. That caused the commission to lose all jurisdiction. Even though it ultimately denied the order of conditions, DEP’s superseding grant of an order governed.
DEP’s judgment about the appropriate measures to require to protect water resources forms a floor. See, e.g., Oyster Creek Preservation, Inc. v. Cons. Comm’n of Harwich, 449 Mass. 859, 865-66 (2007). The circumstances under which the contrary judgment of local regulators governs can turn on procedural details unrelated to the merits of the contrary judgment. So, prudent practitioners will bear in mind (1) that a deadline is a deadline (for good or ill) under this program and (2) that everything you need should be in the administrative record on time.
* Our new colleague Lauren A. Liss was very helpful in reviewing this post.