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Monday, March 20, 2017

Appeals Court Gives Advice to Conservation Commissions on Making Decisions Tougher than State Law

By  Nathaniel Stevens

The Appeals Court in Parkview Electronics Trust, LLC v. Conservation Commission of Winchester, 88 Mass. App. Ct. 833 (2016), rejected a challenge to the well-established principle that a local
conservation commission can have regulatory authority under a local wetlands town bylaw or city ordinance (hereinafter “bylaw”) that is independent from, and in addition to, its authority under the state Wetlands Protection Act (“Act”).

The lesson of this court decision is that effective use of this municipal authority is contingent on the commission relying on bylaw provisions which are more stringent than those in the Act.  Also, the commission must comply with the decision timeframe in the Act (even if the local bylaw differs). Otherwise, the bylaw and commission decision are said to be preempted by the state.

Specifically, if a commission relies on a bylaw provision that is not stricter than state law, it risks having its decision superseded by the Massachusetts Department of Environmental Protection (“MassDEP”). The same thing can happen if it relies on the Act or MassDEP regulations rather than its local law provisions. Ditto if the commission issues its decision more than 21 days from the close of the public hearing.

To clarify this important implication of how a commission conducts its decision making, we will first review the relationship of Home Rule bylaws and ordinances to the state Act and MassDEP regulations, how and why the local rules can be stricter, and what happens when MassDEP overturns a commission on appeal under the Act.

Then we will look closely at the issues and logic of the Parkview decision and the Appeals Court’s practical advice it helpfully included for commissions.

Since at least the early 1970’s, Massachusetts courts have regarded the Act as setting forth only minimum statewide standards to protect wetlands and other inland and coastal resource areas, “leaving local communities free to adopt more stringent controls.” Golden v. Falmouth, 358 Mass. 519 (1970). More than 190 of the 351 cities and towns in the Commonwealth have Home Rule wetlands bylaws.

The interplay between local bylaws and the Act has been considered by the courts over the years, particularly when MassDEP entertains an appeal under the Act and reaches a different conclusion than a commission did under its bylaw. When a commission’s decision relies on a bylaw that is more stringent than the Act or the MassDEP Regulations (310 CMR 10.00), the commission’s decision under the bylaw will stand even if its decision under the Act is reversed by MassDEP.

In 2007, the Supreme Judicial Court in its Oyster Creek decision added an important procedural caveat: a commission must issue its decision under its bylaw within the time prescribed in the Act (21 days after the close of hearing). Otherwise, the SJC ruled, a commission can lose its authority under its bylaw if MassDEP issues a superseding order in an appeal under the Act.

In summary, be aware that MassDEP’s decision in an appeal under the Act controls if:  the bylaw is not more stringent than the Act in some key respect; the commission relies on a provision that is not more stringent; the commission relies on the the MassDEP regulations; or if commission is late in issuing the decision.

These types of legal claims can be raised by an unhappy applicant in a lawsuit against the commission, challenging the decision; in project plans designed to satisfy MassDEP regulations and not the local rules; or, in defending against commission enforcement.

If this “stricter bylaw” issue is raised in a court case, typically the court will determine whether indeed a bylaw is more stringent, in what respects, and if the commission relied on those. The bylaw is examined “as applied” with the court considering the particular provision(s) upon which a commission chose to rely.  This is instead of an “on its face” comparison of the local and state in whole and in the abstract.

If a commission simply failed to issue its decision within 21 days after the close of the public hearing, the typical applicant usually points this out to the commission, arguing the Oyster Creek decision means that a MassDEP permit is all that is needed.  Permit holders go to court if they want a definitive ruling on this score, as MassDEP rarely makes a determination of whether a bylaw is more stringent or if a Commission has acted in time.

In the Parkview case, the owner of an industrial park along the Aberjona River in Winchester, Parkview Electronics Trust, LLC (“Parkview”), argued unsuccessfully before the Appeals Court that a conservation commission must base its decision exclusively on a bylaw, instead of both a bylaw and state law, for the commission to avoid being pre-empted by MassDEP.

Relying on the Appeals Court’s Healer v. DEP decision in 2009, Parkview argued that a commission must choose to exercise authority under either the Act or its bylaw, but may not use both. Parkview seized on the Appeals Court’s use of the word “exclusively” in Healer when it ruled:

A local authority exercises permissible autonomous decision-making authority only when its decision is based exclusively on the specific terms of its by-law which are more stringent than the act... . The simple fact, however, that a local by-law provides a more rigorous regulatory scheme does not preempt a redetermination of the local authority’s decision by the DEP except to the extent that the local decision was based exclusively on those provisions of its by-law that are more stringent and, therefore, independent of the act. Healer v. Department of Environmental Protection, 73 Mass. App. Ct. 714, 718-19 (2009).

Parkview challenged the Winchester commission’s determination, in an Order of Resource Area Delineation and one or two later Enforcement Orders, that it had jurisdiction over its property under both its bylaw and the Act. The commission had found the property to be within Bordering Land Subject to Flooding under the Act as well as within “land subject to flooding” under Winchester’s wetlands protection bylaw, which has a more encompassing definition of that term.

MassDEP’s regulations promulgated under the Act define “bordering land subject to flooding” as presumed to be the area within the 100-year floodplain defined by the Federal Emergency Management Agency (“FEMA”) in its flood insurance rate maps and data. The Winchester Bylaw makes no reference to FEMA information, instead defining “flooding” as “temporary inundation of water or a rise in the surface of a body of water, such that it covers land not usually under water”. This covers more geographic area than in the presumptive FEMA line.

Parkview appealed the Winchester commission’s decision under the Act to MassDEP and under the bylaw to Superior Court. MassDEP reversed the Commission’s decision, finding that the property was not within the area mapped at the time by FEMA as 100-year floodplain. When issuing its decision, MassDEP explicitly stated its decision was only under the Act.

Parkview lost its bylaw appeal in Superior Court, and then tried to convince the Appeals Court that MassDEP’s decision preempted the Commission’s decision under the bylaw. Parkview argued the commission had violated the holding in the Healer case when it asserted jurisdiction under both state and local law (typical of most commissions with bylaws). Parkview maintained that the commission should have asserted jurisdiction only under the bylaw if it wanted to avoid being preempted by MassDEP.

The Appeals Court disagreed with Parkview and reaffirmed the long-established principle that, even when a commission bases its decision on both the Act and bylaw, MassDEP may review the decision and supersede any portion of the decision based on the Act. The Appeals Court stated that if were to adopt Parkview’s position, it effectively would expand MassDEP’s authority over bylaws, thus negating the principle that the Act sets minimum statewide standards.

The Appeals Court went on to advise that commissions “purporting to act under both State law and independently under local law should make it clear in their written decisions and orders that there is a dual basis for their determinations.”

That is good advice. Fortunately, this is what sophisticated commissions already do. Some issue two entirely separate decisions, using separate forms, findings, and conditions. Others utilize a single form modified to indicate the decision is under both the Act and bylaw, attaching one set of findings and conditions for its Act decision and another for its bylaw decision. Either way, they follow the Appeals Court suggestion to make clear the two different bases for jurisdiction and the decision, and where it is based on stricter local standards.

Nathaniel Stevens is a senior associate with McGregor & Legere, PC where he handles a broad range of environmental and land use maters including permitting, development, contamination, transactions, conservation, real estate restrictions, underground tanks, water supply, water pollution, subdivision control, tidelands licensing, Boston and state zoning, coastal and inland wetlands, stormwater, air pollution, and energy facility siting.  Nathaniel can be reached by email at

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