Thursday, April 14, 2022

21-Day Timing Provisions in the Wetlands Act Are Obligatory and Pre-Empt Local Wetland Bylaws

Gregor I. McGregor, Esq.

Local wetlands bylaw (or ordinance) jurisdiction over projects in and near resource areas depends on Conservation Commission


compliance with the 21-day deadlines for commencing public hearings and issuing decisions on Notices of Intent (NOI). Indeed, you may safely regard those timing provisions in the state Wetlands Protection Act (the Act) as binding on the Commission, with failure to meet them potentially fatal to any decision the Commission may render. 

Recall that a Commission loses its “Home Rule” wetland bylaw control (with the result that the applicant has no need for the local permit) if it fails to issue its denial, permit or other decision by the deadline of 21 days from the close of the public hearing and the applicant appeals this inaction to the Massachusetts Department of Environmental Protection (MassDEP) under the Act. This is by virtue of the Supreme Judicial Court’s 2007 decision in the Oyster Creek case. 

Now, by virtue of the Massachusetts Appeals Court’s decision in the 2022 Boston Clear Water case, the Commission loses its control, and the applicant does not need the local wetlands permit, if the Commission fails to convene the public hearing by the deadline of 21 days from the NOI being filed and the applicant appeals to MassDEP under the state Act. This is no matter what is the eventual result of any Commission hearing.

These two seminal cases, important in wetlands protection jurisprudence, are cited as Oyster Creek Preservation, Inc. v. Conservation Comm’n of Harwich, 449 Mass. 859, 866 (2007) and Boston Clear Water Company, LLC v. Town of Lynnfield, No. 21-P-166, 100 Mass. App. Ct. 657 (Mar. 23, 2022). 

The upshot of either untimely default by the Conservation Commission is that the project is no longer subject to the municipal bylaw and, in most situations where this comes up, the only wetlands permit needed for an applicant’s project is the Order of Conditions from the MassDEP on appeal under the state Act. 

These legal results are so clear from these two court cases that litigation between the applicant and city or town should not be needed in the typical situation to recognize the loss of Commission jurisdiction when it misses a deadline. A missed date to start the hearing or to issue the decision after the hearing is simply a matter of fact. 

Likewise, an appeal to MassDEP should not be needed in the occasional situations when the project is pending only under the bylaw or when the Commission has already approved (or agrees to approve) the project under the Act. A Superseding approval from the state is not necessary. Consult your counsel for tactical advice in these and other variations.

The results in Oyster Creek and Boston Clear Water came from applying the doctrine of preemption of municipal regulatory authority by the superseding authority of the Commonwealth, based on the intent of the 21-day time frames in the state Act. Home Rule authority of cities and towns, while regarded as very broad and deep in Massachusetts, is nonetheless subject to state preemption in certain circumstances. 

One such circumstance is when the Legislature has made specific provision for a procedure with which a city or town may not conflict.  The 21-day periods specified in the state Act for convening the hearing and issuing the decision, as interpreted in these two court decisions, are such specific provisions and thus critical timelines to meet for the municipality to be able to exercise its Home Rule wetlands power.

At issue in the Boston Clear Water case was whether the Lynnfield Commission’s failure to conduct a hearing within 21 days of receiving the Notice of Intent, pursuant to G. L. c. 131, § 40, and its town wetlands protection bylaw, caused it to lose its authority over the proposed project and as a result forfeit the right to apply and enforce its bylaw.

While under Home Rule principles enunciated in earlier decisions about the state Act and local bylaws, the general rule is that if provisions of a local wetland bylaw are more stringent than the Act, those provisions will apply, that freedom does not apply to the statutory time frames for opening hearings and issuing decisions. 

In other words, the Lynnfield Commission’s failure to commence its public hearing within 21 days was not discretionary, it could not unilaterally reschedule the date for later, and so the Commission lost its jurisdiction to MassDEP when the applicant appealed to the state agency. 

You may regard this as a legal forfeiture of the right which the municipality otherwise has to regulate work and activities under the Bylaw with its local requirements.  Consequently, MassDEP’s Superseding Order of Conditions controls. 

The Appeals Court described in detail the procedural setup under the Act and Lynnfield bylaw, both of which contain the 21-day period, saying:

Notably, the failure to conduct a timely hearing and the failure to issue a timely decision following a hearing result in the same consequence under the same provision of the act--in both instances, the act authorizes the applicant to request an order of conditions from the DEP. See G.L. c.131, §40.  In Oyster Creek, 449 Mass. 866, the court made explicit that “the timing provisions in the act are obligatory, and a local community is not free to expand or ignore them,” even where a conservation commission is seeking to enforce provisions of a local bylaw that are more protective than the act.

The Appeals Court saw the Supreme Judicial Court’s ruling in Oyster Creek as binding precedent as to the beginning of the public hearing, concluding: 

As 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.

It bears emphasizing what the Appeals Court found most significant in the Oyster Creek decision where that SJC observed that the Act’s "timing provisions" --in the plural--are "obligatory

The facts of the Boston Clear Water case were mostly uncontested. The applicant, owner of a public water supply, filed an NOI to construct improvements to an existing enclosed spring house that protects the spring. 

The Commission was unable to convene a quorum within 21 days, did not obtain from the applicant a waiver of the deadline, and commenced the hearing late. Even though the applicant did not participate and made clear its position that it did not need Commission approval, the Commission held several hearing sessions without the applicant and denied the OOC for lack of participation or lack of information. 

The applicant already had appealed to MassDEP the Commission’s failure to open the hearing in timely fashion, as per the Act and MassDEP Regulations, and MassDEP had issued a Superseding OOC approving the project. The court case arose because the applicant sued the Commission seeking a ruling to confirm the invalidity of its late hearing and decision. 

The Commission won in the Superior Court, but the Appeals Court overturned that short-lived victory, for the essential reason that the “timing provisions” in the Act are “obligatory,” under the Act an applicant may appeal noncompliance to the MassDEP, and the resulting Superseding OOC will govern. 


These Oyster Creek and Boston Clear Water holdings, both of which dealt with Commission disapprovals of proposed projects (either after the time for commencing the public hearing or after the time for issuing a decision), which unhappy applicants challenged, will apply as well to approvals, denials or other decisions that are late. Therefore, these cases warrant renewed close attention to the Commission’s timing of all its hearings, meetings, and decisions. 

Commissions, their staff, the applicants, their consultants, and any legal counsel involved should be sure to attend to these 21-day time periods, even though at times that can be challenging, inconvenient, difficult, and even impossible.

Fortunately, there is available the common practice, usually by mutual courtesy, where the applicant and Commission arrange to time the NOI filing to fit the Commission hearing schedule, agree to leave the hearing open (continuing it to dates certain) until all the relevant information is received for the administrative record, plan carefully the Commission meeting(s) for deliberations after the hearing has closed so as to not run out of time, manage efficiently the drafting and circulation of the OOC or other decision for vote, signature and issuance, leave time for the necessary hand delivery or US Postal Service mailing, or, if time is about to expire, secure the applicant’s written waiver of the legal deadline. We recommend it be in writing for a clear record to avoid any doubt or dispute. 

When the applicant’s consent to variation of a 21-day period is not possible, however, the Commission should attend to its obligations by some other means or risk losing its regulatory power over the project. 

We alert the reader that Oyster Creek and Boston Clear Water likely may be regarded as governing one other type of Commission action that is subject to the same 21-day deadline in the Act. The Commission must act on a Request for Determination of Applicability within 21 days of it being filed.  This does not involve convening and conducting a public hearing under the Act, as you know, just a meeting of the Commission. Because there is no hearing, this administrative task is easier to schedule. If needed, the Commission deal with it in an emergency meeting if the regular schedule does not allow.

Here is the phrasing in the Act which we think comprises the “timing provisions” the courts are referring to in making these preemption rulings: 

“If a conservation commission has failed to hold a hearing within the twenty-one day period as required, or if a commission, after holding such a hearing has failed within twenty-one days therefrom to issue an order, or if a commission, upon a written request by any person to determine whether this section is applicable to any work, fails within twenty-one days to make said determination….”

We advise that Oyster Creek and Boston Clear Water appear to govern RDAs because the 21-day deadline for the Determination of Applicability appears in the same text as the deadline for the hearing to commence and the decision to be issued which, if unmet, triggers a right to appeal the inaction to MassDEP for a superseding decision. 

We leave to another day the impact of these decisions, if any, on the other 21-day deadline in the Act, which is not appealable to MassDEP, for the Commission to act on a Request for a Certificate of Compliance. MassDEP does not entertain appeals from COC decisions. The remedy is likely an appeal to court for a writ of mandamus to compel this action by the Commission.

A founder and current co-chair of REBA’s Environmental Law Section, Greg McGregor is also the founder of the Boston-based environmental law firm, McGregor & Legere, PC, which handles environmental, land use, and real estate matters, plus related litigation. He is also a founding member of the Environmental Law Network, an alliance of specialty law firms in the United States and abroad, sharing expertise and experience for the benefit of their clients. Greg can be contacted by email at gimcg@mcgregorlaw.com.


No comments:

Post a Comment