Paul F. Alphen
Take
a look at the decision in Boston Clear Water Co., LLC v. Town of Lynnfield,
No. 21-P-166, 2022 WL 220839, (Mass. App. Ct. Jan. 26, 2022). The Plaintiff
owns 1.3 acres of property in Lynnfield where it operates a spring contained
within a stone springhouse,
which needed repairs. The building is located
within wetlands area or within the buffer zone, so the Plaintiff filed a Notice
of Intent with the Conservation Commission.
“Within
twenty-one days of the receipt by a conservation commission of a written
request made by any person and sent by certified mail, said commission shall make
a written determination as to whether this section is applicable to any land or
work thereon.” Mass. Gen. Laws Ann. Ch. 131, § 40 (West)
It is common for commissions to need
additional time, and it is common for applicants to grant commissions the additional
time to conduct a hearing. See Garrity v. Conservation Comm'n of Hingham (2012)
for an explanation by the SJC of how waivers of the time periods are properly
effectuated. But
Boston Clear Water did not grant an extension to the Commission and did not
attend hearings that were held by the Commission; instead, they applied for,
and obtained, a superseding order of
conditions from DEP. Quoting the SJC decision in Oyster Creek Preservation,
Inc. v. Conservation Comm'n of Harwich (2007), the court stated that
“…. the timing provisions in the act are obligatory, and a local community is
not free to expand or ignore them,”
The
Appeals Court stated “[a]s a result, we are constrained under Oyster
Creek to conclude that, by failing to conduct a hearing within the
act's twenty-one day mandatory time period, the commission lost the authority
to regulate BCWC's project under the town bylaw. The DEP's superseding order of
conditions approving the project thus controls.” That conclusion means that under the
circumstances, an appeal to the Superior Court under the local wetland bylaw
was not necessary.
It
was good strategy for Boston Clear Water to not directly or implicitly grant
the Commission an extension, and to not attend the Commission meetings. By
appealing directly to the DEP, Boston
Clear was able to by-pass regulation by the local bylaw and the local
commission completely.
A
former REBA president, Paul Alphen currently serves on the association’s
executive committee and co-chairs the long-range planning committee. He is also a member of the Executive
Committee of the Abstract Club. He is a partner in the Westford firm of Alphen
& Santos, P.C. and concentrates in residential and commercial real estate
development, land use regulation, administrative law, real estate transactional
practice and title examination. As entertaining as he finds the practice of
law, Paul enjoys numerous hobbies, including messing around with his power
boats and fulfilling his bucket list of visiting every Major League
ballpark. Paul can be contacted at palphen@alphensantos.com.
