Last month, in City of Boston v. Quincy Conservation Commission, the SJC held that the Quincy Conservation Commission’s denial of
Boston’s Long Island Bridge project was superseded by the Massachusetts Department of Environmental Protection’s Superseding Order of Conditions under the State Wetlands Protection Act. The SJC concluded that the local denials were preempted by the Act because the Commission did not rely on provisions of the Quincy Wetlands Protection Ordinance which are stricter than the Act.
Factual Background
In 2018, Boston submitted its permit application
under the Wetlands Protection Act—called a Notice of Intent—to the Quincy
Conservation Commission. The Commission
also reviewed the project under Quincy’s local Wetlands Protection Ordinance. As is permitted in most, if not all, other
cities and towns with local wetlands ordinances or bylaws, the Notice of Intent
triggered the Commission’s review under both the Wetlands Protection Act and
the local ordinance.
In September 2018, after public hearings,
the Commission denied the project under both the State Act and the local
ordinance. The Commission based its
denials on its perceived concerns over future repairs to the Moon Island Road
causeway and its belief that the Boston Public Works Department had not fully
quantified impacts to wetland resource areas.
Its concerns that Boston had not fully quantified impacts to wetlands
was not based on Boston’s project as proposed, but on pier repair methodologies
not proposed by Boston yet envisioned by the Commission’s consultants.
Boston pursued two parallel appeals. Boston brought a certioriari action in
Suffolk Superior Court, under Mass. Gen. Laws ch. 249, § 4, challenging the
denials under Quincy’s local ordinance.
Boston also filed an appeal to the Massachusetts Department of
Environmental Protection (MassDEP) – called a Request for a Superseding Order
of Conditions – to permit the project under the State Act. Importantly, while the Superior Court action
was pending, MassDEP issued a Superseding Order of Conditions, permitting the
project under the State Act. The MassDEP
Order superseded the Quincy Conservation Commission’s denial under the State
Act. In 2020, based on the MassDEP
Superseding Order of Conditions, the Superior Court entered judgment for
Boston, finding that the Superseding Order of Conditions preempted and
superseded the Quincy Conservation Commission’s denial under the local
ordinance.
The SJC Decision
In a unanimous decision, the SJC affirmed
the Superior Court judgment and held that the Quincy Conservation Commission’s
denials of the project under the local ordinance were superseded by MassDEP’s
Superseding Order of Conditions. While
the State Act sets the minimum standards for protection of wetland resource
areas and municipalities are free to implement stricter standards under local
ordinances, a MassDEP Superseding Order of Conditions will preempt and
supersede local decisions if they are not based on the stricter provisions of a
local wetlands protection ordinance. The
SJC goes on to say that the simple fact that a local ordinance is generally stricter
than the State Act does not matter.
Instead, the Commission will have had to rely on those stricter
provisions in order to avoid a Superseding Order of Conditions’ preemptive
effect.
In reaching its decision, the SJC pointed
out that the Quincy Conservation Commission relied on the State Act’s
implementing regulations—and not any regulations promulgated under the local
ordinance—in its denials. The SJC
further noted that the Commission did not describe in its denials or in its
appellate brief how its application of the general “cumulative effects”
language of the local ordinance to deny the project is different or stricter
than MassDEP’s review of the project under the State Act.
Best Practices for Conservation
Commissions After City of Boston
Following City of Boston, local
conservation commissions should take great care in crafting decisions that rely
entirely or in part on local ordinances or bylaws. Here are some key takeaways from the
decision:
1.
If a commission wishes to base its decision on stricter
provisions of its local ordinance or bylaw, it should both reference the
applicable provisions of its ordinance or bylaw and explain how the stricter
provisions apply to the particular project.
In
its decision, the SJC suggests that a reference to a provision of a local bylaw
or ordinance without an explanation of how the commission is applying that
provision to the project might be insufficient to avoid the State Act’s
preemptive effect.
2.
If a commission intends to rely on a local provision
stricter than the State Act, the best practice would be to describe in the
written decision how the specific provision differs from the State Act. In its decision, the SJC faults the Quincy
Conservation Commission, which attempted to rely on a local provision involving
a project’s cumulative effect, stating, “[t]he commission does not explain in
its brief, and did not explain in its decisions denying Boston’s application,
how its own analysis differs from the analysis that the DEP was authorized to
perform.”
3.
Unless there is explicit authority in a local
ordinance or bylaw, a commission should not deny a project based on concerns
over future permitting or potential violations that have not occurred. In its decision, the SJC reminds conservation
commissions that “prospective violations of a town by-law are not a legally
tenable ground for denial of a submission that on its face complies with
applicable law,” quoting the Massachusetts Appeals Court case Fafard v.
Conservation Commission of Reading.
4.
Municipalities that rely on provisions permitting the consideration
of a project’s “cumulative effect” as the reason why their ordinances or bylaws
are stricter than the State Act should consider revisiting how “cumulative
effects” are defined and analyzed. Boston successfully argued that Quincy’s local
ordinance, as applied to the project, was not stricter than the State Act,
despite the Commission pointing to vague language in its ordinance regarding a
project’s “cumulative effect.” Not only
did the Commission fail to describe how its analysis under this provision
differs from MassDEP’s review, the SJC noted comparisons with “cumulative
effect” provisions at issue in other cases which specifically defined cumulative
impacts.
Boston
is a good model for other communities.
In 2019, Boston enacted its own local wetlands protection ordinance, which
permits the Boston Conservation Commission to consider a project’s cumulative
effect. The ordinance defines
“cumulative effect” with specificity:
An effect that is significant when
considered in combination with other activities that have occurred, that are
occurring simultaneously, or that are reasonably foreseeable, whether such
other activities are contemplated as a separate phase of the same project, or
arise from unrelated but reasonably foreseeable future projects . . . Future effects of sea level rise, coastal or
inland flooding, or other future climate change effects are included among
cumulative effects.
A
partner at Rose Law Partners LLP, Sammy Nabulsi specializes in land-use, environmental, and
real estate permitting and litigation. He
has been permitting and litigation counsel to the City of Boston since 2018. Sami can be contacted at ssn@rose-law.net
