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Without Clearly Defined Performance Standards, A Local Wetlands Ordinance or Bylaw May Be Worthless Featured

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Hale Reservation Hale Reservation

The Massachusetts Appeals Court’s decision in Tremont Redevelopment Corporation v. Conservation Commission of Westwood, 73 Mass. App. Ct. 1127 (2009), provides guidance for municipalities concerned about the limits of Home Rule for local wetland protection ordinances or bylaws.   The Court applied the Home Rule Doctrine in light of several prior decisions1 and ruled that the Westwood Conservation Commission’s disapproval of a project under its Wetlands Protection Bylaw was invalid.2  

Specifically, the Appeals Court ruled that while municipalities may enact Home Rule ordinances or bylaws stricter than the state Wetlands Protection Act (the “Act”), such local controls must include a clear set of performance standards that can be objectively applied to projects that come before a Conservation Commission.

In Tremont Redevelopment, the Westwood Conservation Commission issued a denial under its bylaw because the project proposed work within thirty-five feet of isolated freshwater wetlands, a locally protected Resource Area.  Westwood’s bylaw creates a presumption that work in the inner thirty-five-foot Buffer Zone will alter the adjacent Resource Area.  Isolated freshwater wetlands are not protected by the Act, nor does the presumed alteration for work within thirty-five feet exist under the Act.  

The Appeals Court rejected the Commission’s argument that simply listing isolated freshwater wetlands as a protected Resource Area made its bylaw stricter than the Act, because the bylaw itself lacked standards to guide the Commission in weighing a project’s impacts on that Resource Area. The Court, for the same reason, rejected the position that the presumed alteration for work within thirty-five feet of a Resource Area made the bylaw stricter than the Act, and added that the bylaw provided no “guidelines” to instruct either an applicant or the Commission as to what was necessary to overcome this presumption.  

The Court stressed the Commission’s failure to promulgate implementing regulations with any performance standards.  Further, Westwood’s bylaw expressly adopted the performance standards in the Act until Westwood promulgated its own.  Thus, the Court ruled that the Act and DEP’s regulations were the Commission’s only tools for evaluating the project.

In other words, to use its own Home Rule bylaw to turn down a project for unacceptable impacts to a Resource Area (including the Buffer Zone), the Commission must have clear performance standards for work in that Resource Area.  Those standards must appear in the ordinance or bylaw, or in regulations, or both.  It is not enough for a local ordinance or bylaw to merely list things like extra jurisdictional Resource Areas, presumed alteration distances, or mandatory setbacks.

Tremont Redevelopment instructs municipalities that to be more stringent than the Act, an ordinance or bylaw must provide performance standards that can be applied “neutrally” by the Commission.  Otherwise, local controls intended to be stricter than the Act, even with language and provisions that appear to be stronger than the Act, will not be a valid basis for disapproval.

This drives home the importance of having regulations.  Previously, the Appeals Court rejected the Andover Conservation Commission’s reliance on an unwritten “policy” as a basis for denial in Fieldstone Meadows.  Now the same Court has rejected reliance on the bylaw language alone to support a denial.

Most ordinances and bylaws do not contain clear, detailed performance standards; they are skeletons to which a Conservation Commission adds flesh and muscles via regulations.

The Tremont Redevelopment case teaches us that a Commission with comprehensive regulations, setting forth Resource Area performance standards, design specifications, presumptions of significance, alteration, or unacceptable impacts, and criteria for rebutting presumptions, is on firm ground when issuing a decision under its bylaw.  

A Commission with partial regulations containing a few performance standards should be safe with respect to decisions for those particular Resource Areas.

A Commission with merely procedural regulations and no performance standards is on very thin ice.  

A Commission with no regulations or performance standards (or which incorporates by reference DEP’s performance standards) might as well have no local wetlands ordinance or bylaw at all.

TRC v. Westwood article LL .09.pages

1 Degrace v. Conservation Commission of Harwich, 31 Mass. App. Ct. 132 (1991); Hobbs Brook Farm Property Co. Ltd. Partnership v. Conservation Commission of Lincoln, 65 Mass. App. Ct. 142 (2005); and Fieldstone Meadows Development Corp. v.  Conservation Commission of Andover, 62 Mass. App. Ct. 265 (2004).

2 The Commission approved the project under the Act, and DEP later issued a Superseding Order of Conditions approving the project.  A further appeal to DEP is pending.

Read 5119 times Last modified on Thursday, 14 May 2015 18:21
Luke H. Legere, Esq.

LUKE H. LEGERE, Esq. is a Partner with McGregor Legere & Stevens, PC. He helps clients with a broad range of environmental, land use, and real estate issues including coastal and inland wetlands and waterways, zoning, subdivision, development agreements, conservation restrictions, state and local enforcement actions, stormwater, solid waste, hazardous waste, air pollution, site remediation, regulatory takings, affordable housing, and energy facility siting.

Mr. Legere routinely represents clients in permitting matters before conservation commissions, planning boards, zoning boards of appeals, boards of health, and other local environmental and land use boards and officials. He frequently represents clients in administrative enforcement proceedings and adjudicatory hearings before state agencies such as the Department of Environmental Protection (“DEP”). He regularly handles litigation in state and federal courts at both the trial and appellate levels.

Mr. Legere often writes and speaks on topics such as the Wetlands Protection Act, Chapter 91, Watershed Protection Act, Article 97, water pollution control, non-zoning wetlands bylaws, zoning and land use, regulatory takings, and brownfields. He has had articles published in newsletters for the Massachusetts Association of Conservation Commissions (“MACC”), Real Estate Bar Association (“REBA”), and Association of Massachusetts Wetlands Scientists (“AMWS”). He is the author of the Water Pollution Control chapter of the Massachusetts Continuing Legal Education’s (“MCLE”) treatise on Environmental Law.

Mr. Legere teaches a course on Legal Research and Writing at New England Law | Boston. He leads workshops for the Citizen Planner Training Collaborative (“CPTC”) offering guidance to members of local boards on the State Zoning Act, Special Permits and Variances, and Writing Reasonable and Defensible Decisions. He regularly serves as a panelist for MCLE’s “Practicing with Professionalism” program.

Mr. Legere has served as co-chair of the Boston Bar Association’s Wetlands, Waterways, and Water Quality Committee. He served two terms on the Board of Directors for the Queechy Lake Club, a non-profit corporation dedicated to the preservation and protection of Queechy Lake in Canaan, NY.

Mr. Legere is a graduate of Colgate University and New England Law | Boston, cum laude.

Mr. Legere has enjoyed success in court and agency administrative proceedings, and is often able to achieve his clients’ desired result by finding creative solutions to negotiate settlement for seemingly intractable disputes.

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