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Appeals Court Reaffirms Conservation Commissions’ Dual Authority Featured

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The Appeals Court in Parkview Electronics Trust, LLC v. Conservation Commission of Winchester, 88 Mass. App. Ct. 833 (2016), recently rejected a challenge to the well-established principle that a conservation commission can have regulatory authority under a local wetlands bylaw or ordinance that is independent from, and in addition to, its authority under the state Wetlands Protection Act (“Act”). This is so as long as a commission relies on a provision of its local wetlands law that is more stringent than the Act and complies with the timeframes set forth in the Act. Otherwise a commission risks having its decisions under both state and local laws superseded by MassDEP in an appeal under the Act.

Since at least the early 1970’s, Massachusetts courts have regarded the Act as setting forth only minimum statewide standards to protect wetlands and other inland and coastal resource areas, “leaving local communities free to adopt more stringent controls.” Golden v. Falmouth, 358 Mass. 519 (1970). More than 190 of the 351 cities and towns in the Commonwealth have home rule wetlands bylaws or ordinances (hereinafter “bylaw”).

The interplay between wetlands bylaws and the state Act has been considered by the courts over the years, particularly when MassDEP entertains an appeal under the Act and reaches a different conclusion than a commission did under its bylaw. When a commission’s decision relies on a bylaw that is more stringent than the Act (or the state Wetlands Regulations implementing the Act (310 CMR 10.00)), the commission’s decision under the bylaw stands even if its decision under the Act is reversed by DEP. In 2007, the Supreme Judicial Court in its Oyster Creek decision added an important caveat: a commission must issue its decision within the time allowed under the Act (21 days after the close of hearing) or it will lose its authority under its bylaw if DEP issues a superseding order in an appeal under the Act.

On the other hand, if the bylaw is not more stringent, then MassDEP’s decision under the Act controls, essentially pre-empting the commission’s decision under its bylaw. In determining whether a bylaw is more stringent, the bylaw is examined “as applied”, rather than “on its face”, with the court examining the particular provision(s) upon which a commission relies, rather than comparing the two laws in whole and in abstract. This analysis in practice need not occur if a commission fails to issue its decision within 21 days after the close of the public hearing, a deadline established by the Act. If an applicant has not voluntarily waived this statutory time requirement, a commission loses its authority under its bylaw.

The owner of an industrial park along the Aberjona River in Winchester, Parkview Electronics Trust, LLC (“Parkview”), argued unsuccessfully before the Appeals Court that a commission must base its decision exclusively on a bylaw, instead of both a bylaw and state law, for the commission to avoid being pre-empted by MassDEP. Relying on the Appeals Court’s Healer v. DEP decision in 2009, Parkview argued that a conservation commission must choose to exercise authority under either the Act or its bylaw, but not both. Parkview seized on the Appeals Court’s use of the word “exclusively” in Healer when it ruled:

A local authority exercises permissible autonomous decision-making authority only when its decision is based exclusively on the specific terms of its by-law which are more stringent than the act... . The simple fact, however, that a local by-law provides a more rigorous regulatory scheme does not preempt a redetermination of the local authority’s decision by the DEP except to the extent that the local decision was based exclusively on those provisions of its by-law that are more stringent and, therefore, independent of the act.

Healer v. Department of Environmental Protection, 73 Mass. App. Ct. 714, 718-19 (2009).

Parkview challenged the Winchester commission’s determination, in an Order of Resource Area Delineation and one or two later Enforcement Orders, that it had jurisdiction over its property under both its bylaw and the Act. The commission found the property to be within Bordering Land Subject to Flooding under the Act as well as within “land subject to flooding” under Winchester’s wetlands protection bylaw. The bylaw has a more encompassing definition of land subject to flooding that does the Act.

MassDEP’s regulations promulgated under the Act define “bordering land subject to flooding” as the area within the 100-year floodplain defined by the Federal Emergency Management Agency (“FEMA”) in its flood insurance rate maps and data. The Winchester Bylaw makes no reference to FEMA information, instead defining “flooding” as “temporary inundation of water or a rise in the surface of a body of water, such that it covers land not usually under water”. This covers more geographic area than in the FEMA maps.

Parkview appealed the Winchester commission’s decision under the Act to MassDEP and under the bylaw to Superior Court. MassDEP reversed the Commission’s decision, finding that the property was not within the area mapped at the time by FEMA as 100-year floodplain. When issuing its decision, MassDEP explicitly stated its decision was only under the Act.

Parkview lost its bylaw appeal in in Superior Court, and then tried to convince the Appeals Court that MassDEP’s decision also preempted the Commission’s decision under the bylaw. Parkview argued the commission had violated Healer when it asserted jurisdiction under both state and local law, which, by the way, is a common approach by commissions with bylaws. Parkview maintained that the commission should have asserted jurisdiction only under the bylaw if it wanted to avoid being preempted by MassDEP.

The Appeals Court disagreed with Parkview and reaffirmed the long-established principle that even when a commission bases its decision on the Act and bylaw, MassDEP may review the decision and supersede any portion of the decision based on the Act. The Appeals Court stated that if were to adopt Parkview’s position, it effectively would expand MassDEP’s authority over bylaws, thus negating the principle that the Act (and thus MassDEP) sets minimum statewide standards.

The Appeals Court went on to advise that commissions “purporting to act under both State law and independently under local law should make it clear in their written decisions and orders that there is a dual basis for their determinations.” This is something sophisticated commissions already do, some by issuing two entirely separate decisions using separate forms, findings, and conditions. Alternatively, many commissions utilize a single form modified to indicate the decision is under both the Act and bylaw, while attaching one set of findings and conditions for its decision under the Act and another for its decision under the Bylaw. These practices should satisfy the precepts of the Parkview decision.

Read 3665 times Last modified on Monday, 23 January 2017 13:12
Nathaniel Stevens, Esq.

NATHANIEL STEVENS, Esq. is a Partner of McGregor Legere & Stevens PC. Since being admitted to the Massachusetts Bar in 1996, he has handled a broad range of environmental and land use matters, from administrative law to litigation. He has helped clients with environmental issues including permitting, development, contamination, transactions, conservation, real estate restrictions, underground tanks, water supply, water pollution, subdivision control, tidelands licensing, Boston and state zoning, coastal and inland wetlands, stormwater, air pollution, and energy facility siting.

Mr. Stevens’ work includes state court litigation over liability for property damage, insurance claims for environmental damage, cost-recovery for contamination cleanups, and damage to municipal lands and public natural resources. His permit-related and administrative litigation includes bringing and defending challenges to conservation commission permits for wetlands work, interpreting and enforcing conservation restrictions, and reviewing decisions by the Department of Environmental Protection (“MassDEP”). He handles adjudicatory proceedings in MassDEP, the Division of Administrative Law Appeals (“DALA”), the Energy Facilities Siting Board, and the U.S. Environmental Protection Agency (“EPA”).

In addition to litigation, Mr. Stevens has utilized dispute resolution and other problem-solving skills to efficiently and effectively achieve his client’s goals. This includes working with land owners and land conservation organizations on a variety of permitting, land use, and management issues.

Mr. Stevens has conducted training through the Citizen Planner Training Collaborative (“CPTC”) for Planning Boards and Zoning Boards of Appeals on the Zoning Act and Subdivision Control Law. He has led Massachusetts Association of Conservation Commission (“MACC”) workshops and training units for Conservation Commissions on the Wetlands Protection Act, Home Rule, the Open Meeting Law, and the Public Records Law.

Mr. Stevens has written for legal and environmental publications on subjects including wetlands protection law at the local and state level, quorum requirements for local boards and commissions, MassDEP regulatory reforms, Home Rule and preemption, EPA programs, and state Brownfields Law. His articles on changes to the Wetlands Protection Act and to the Permit Extension Act have been published by the Real Estate Bar Association, MACC, and the American Council of Engineering Companies of Massachusetts (“ACEC-MA”).

Mr. Stevens is a member of the American, Massachusetts, and Boston Bar Associations. He recently served as Co-chair of the Public Policy Committee of the BBA's Real Estate Section.

Mr. Stevens is a member of the Arlington Conservation Commission on which he served as Chair for many years. He served on the Board of Directors of the Arlington Land Trust, Inc. and on the Executive Committee and the Board of Directors of the Lake Sunapee Protective Association, a New Hampshire member-supported nonprofit education and research watershed protection organization.

Prior to law school, Mr. Stevens was awarded a John Knauss Sea Grant Fellowship to study national marine policy in Washington, D.C. During and after this national fellowship, he worked on wetlands policy issues in EPA’s Wetlands Division. In his first year of law school, Mr. Stevens was awarded “Best Brief” in Moot Court Competition. In his second year of law school, he obtained through a writing competition a position on one of the school’s two law journals and published an article on hydropower.

Mr. Stevens is a graduate of Vassar College and Suffolk University Law School (cum laude), with a Masters of Science in Natural Resource Policy and Planning from the University of Michigan’s School of Natural Resources.

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