Monday, August 21, 2017

Appeals Court Finds Conservation Commission Inaction Cured by Previous Order of Conditions

Last July the Massachusetts Appeals Court issued a decision, Cave Corp. v. Conservation Commission of Attleboro, 91 Mass. App. Ct.

767 (2017), reinforcing the durability of a conservation commission’s Order of Conditions (OOC) issued under its municipal wetland ordinance.

The decision directly applied and tacked on an exception to the
Olympia A. Bowker, Esq.
Massachusetts Supreme Judicial Court’s rule from a leading Home Rule case, Oyster Creek Preservation, Inc. v. Conservation Commission of Harwich. The Court also clarified what would happen legally on a crucial “what if” scenario.

That scenario, as evinced by the facts in Cave, is: “What if a conservation commission failed to act on a Notice of Intent (NOI) in a timely manner, but already had imposed valid conditions under its municipal bylaw or ordinance on a previous NOI, for the same property?”

Two layers of law protect wetlands in Massachusetts. One is the Wetlands Protection Act (WPA), G.L. c. 131 § 40, which provides a statewide minimum of protection for all jurisdictional wetlands and other Resource Areas. The other is municipal wetland controls. These are typically in the form of bylaws or ordinances, should be more stringent than the state law, and only apply to specifically defined Resource Areas within the municipalities’ jurisdiction.

If a proposed project will alter a Resources Area, a proponent must seek permission from the conservation commission of the municipality where the land lies. Then, the commission makes a determination under both laws—the WPA and the municipal wetland bylaw or ordinance—and issues an Order of Conditions (OOC), which is a set of conditions protecting the Resource Areas. Unless appealed, the project must comply with those conditions if it goes forward.

A proponent may appeal an OOC to the Department of Environmental Protection (DEP). The DEP then reviews the OCC and can issue a Superseding Order of Conditions (SOC) which can trump the commissions original OOC. However, the DEP’s review is limited to conditions issued pursuant to the state law, or weaker than the state law. The DEP has no authority to review, second-guess, or change the conditions that a commission imposes pursuant to a more stringent local municipal wetlands bylaw or ordinance.

In the Cave case, the Cave Corporation filed its first NOI with the Attleboro Conservation Commission (Commission) in December 2013. The Attleboro City Council had enacted a wetlands protection ordinance a decade earlier, affording wetlands protection beyond that of the WPA. As a result, when Cave filed its first NOI, to develop the parcel, the Commission applied both state and municipal law to consider the project and determine what, if any, conditions to impose.

In that first NOI, Cave sought to build general infrastructure for a subdivision. That proposed project had the potential to impact a variety of Resource Areas—among them, two vernal pools that are protected under the Attleboro ordinance (but not the WPA). The Commission timely approved the work with an OOC. Notably, one condition, Condition 29, prohibited any work or disturbance within 125 feet of the two vernal pools on the subject property.

Cave appealed the OOC to the DEP, which eventually issued a SOC. However, as discussed in FIC Homes of Blackstone, Inc. v. Conservation Commission of Blackstone, the DEP cannot preempt a condition based on a more strict, local, wetlands provision. Therefore, Condition 29, as imposed in the local OOC, remained intact and effective.

In October 2014, Cave filed a second NOI with the Attleboro Conservation Commission—this time seeking permission to construct homes on lots within the proposed subdivision. Included in this second NOI was a plan to construct a driveway within 125 feet of one of the two vernal pools on the land.

The Commission failed to hold a timely hearing on the second NOI. Consequently, Cave appealed to DEP for a SOC. While this situation initially mirrored that in the Oyster Creek decision, the Appeals Court built on its analysis.

In Oyster Creek, the Harwich Conservation Commission failed to act on an NOI, under both state and local laws, within the statutory time frame of 21 days after the close of the public hearing. The Supreme Judicial Court in Oyster Creek ruled that when a municipal conservation commission fails to act timely on an NOI for work affecting wetlands, the applicant may seek a SOC from DEP and “it is appropriate that [the commission] should lose the right to insist on the provisions of its local bylaw, and that any superseding order issued by the DEP should apply in its stead.”

In Cave, when the Commission failed to timely act on the second NOI, Cave sought and received an SOC from DEP without the burden of any conditions based on local bylaws. Had the inquiry stopped there, Cave would be permitted to construct within 125 feet of one of the two vernal pools on the subject property.  However, there was an earlier OOC based on an earlier NOI that prevented work within 125 feet of the vernal pools. Which controls: the OOC based on the first NOI, or the later SOC based on the commission’s failure to act timely on the NOI?

Cave sued in court, claiming the later SOC governed the work and the first OOC was no longer applicable. How would the court apply Oyster Creek to this situation?

The Appeals Court determined that even though the Commission failed to timely act on Cave’s second NOI, the conditions of the first NOI applied to the same land. Therefore, the court found that Cave was still bound by Condition 29 of the first OOC because it was imposed earlier to protect the vernal pool habitat from human construction activities and remained in effect. The court reasoned that because the Attleboro Commission included explicit reasoning for including Condition 29 in the first OOC, the property was the same land in both NOIs, and the preliminary work was for a subdivision—the conditions in the first NOI were still in effect for all other phases of work for the same land.

The take-away: An SOC issued by DEP does not divest a conservation commission of all authority to regulate activity on land subject to the SOC, if the same land is also the subject of a separate and earlier NOI on which the commission acted timely in issuing its OOC.

Nonetheless, is wise for conservation commissions to act on all NOIs within the prescribed statutory time periods, issue clear decisions with specific and articulated findings justifying the conditions they impose, keep accurate and complete records of past NOIs and OOCs, and track whether the OOCs have been properly recorded (and complied with). This advice is especially so for those commissions administering Home Rule wetlands bylaws or ordinances. Otherwise, a careless commission may find itself up Oyster Creek without a paddle.

Olympia Bowker is an associate at McGregor & Legere, P.C. in Boston. She helps clients with a broad range of environmental, land use, and zoning matters. Olympia received both her J.D. and Masters of Environmental Law and Policy from Vermont Law School. She can be contacted by email at:

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