October 20, 2021

Volume XI, Number 293

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October 19, 2021

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October 18, 2021

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Mass. High Court: Three-Year Clock for Wetlands Protection Act Enforcement Actions Re-Starts With Every Sale of Property

The Massachusetts Supreme Judicial Court (SJC) recently handed a victory to a conservation commission seeking to impose an enforcement order on a property owner who bought land containing unauthorized fill placed there by a prior owner 35 years before.  The SJC ruled that the “statute of repose” in the state Wetlands Protection Act, which protects property owners from enforcement for prior violations in certain situations, does not run with the land.

The Wetlands Protection Act, M.G.L. c. 131, § 40 (the Act), generally prohibits removing, filling, or altering wetlands without an order of conditions from a local conservation commission.  The Act also provides that “[a]ny person” who acquires property on which work has been done in violation of the Act shall restore the property to its original or permitted condition; but the Act limits the time period during which an enforcement action against “such person” may be brought.  Specifically, an action must be brought within three years of the recording of the deed (or date of death) by which “such person” acquires the property.  The three-year time limit is known as a statute of repose.  In Conservation Commission of Norton v. Pesa (pdf), the SJC, by ruling that the repose is personal and does not run with the land, determined that the three-year clock re-starts each time a new owner acquires property.

In Pesa, in 1979 a property owner obtained permission to develop his parcel, which included placing fill for a parking lot.  A few years later the conservation commission informed the owner that the approved fill limits appeared to have been exceeded.  No further action was taken.  In 1996 the owner deeded the property to himself and his wife.  He died in 2006.

In 2014, prospective buyers of the property noted that no “certificate of compliance” had been obtained for the work authorized in 1979.  The seller (widow of the 1979 owner and herself the owner as of 1996) submitted an “as‑built plan” to the conservation commission and sought a certificate of compliance, which the commission was required to issue if the completed work on the property complied with the order of conditions issued in 1979.  Unfortunately, the plan and other investigations conducted by the conservation commission revealed that there was 11,000 square feet of excess, unauthorized fill on the property, and that vegetation had been cleared beyond the approved work limits.  The commission requested that the unauthorized fill be removed.

The buyers went ahead with their purchase of the property and attempted to negotiate with the conservation commission concerning the work done under the 1979 order of conditions.  They did not suggest they would undertake to remove any unauthorized fill.

The commission issued an enforcement order to the new owners in 2015, directing them to restore the affected areas to their “original condition.”  The new owners did not comply with the order and did not take legal action to challenge it.  The commission then commenced an action against them in superior court to enforce the enforcement order.

The superior court judge interpreted the statue of repose in the Wetlands Protection Act as requiring the commission to bring an enforcement action within three years of the first transfer of ownership in the property occurring after the unauthorized filling originally took place.  That was the transfer in 1996.  The Supreme Judicial Court disagreed.

In its decision, the SJC focused on the plain language of the Act, bolstered by its legislative history, and the overall statutory scheme to manage wetland projects.  The Act permits a conservation commission to bring an enforcement action against any person who acquires property on which work has been done in violation of the Act, not just the first person.  Therefore, the Act permits an action to be initiated against any subsequent owner, so long as it is brought within three years of that particular individual obtaining title to the property.

It is common in real estate transactions to see an order of conditions in the title search without a certificate of compliance, which was the case in Pesa.  Sellers frequently have to track down plans and get as-built plans done to obtain a certificate of compliance for past work. Those situations will be unaffected by this decision.  It is the unsuspecting buyer who has no way of knowing there is unauthorized fill or some other violation of the Wetlands Protection Act on the property who will be affected.  That buyer is not protected from enforcement for a three-year period after acquiring the property.  As a practical matter, this scenario may not occur very often.  For that new owner, however, the decision seems unfair.

©2021 Pierce Atwood LLP. All rights reserved.National Law Review, Volume XI, Number 264
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About this Author

Michelle N. O'Brien, Pierce Atwood, environmental attorney
Partner

Michelle O'Brien handles environmental and land use permitting and related litigation for various types of developments including residential homes, commercial buildings, waterfront properties, wind turbines, and solid waste facilities. She defends companies in environmental enforcement matters at the federal, state, and local levels. She represents private parties in cost recovery and property damage claims involving releases of oil and hazardous materials, and assists clients with real estate transactions involving contaminated properties.

An accomplished...

(617) 488-8146
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