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Supreme Judicial Court Rejects Boilerplate Waiver of Wetland Protection Act's Deadline For Decision Featured

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The finished pier, validated, re-graded, reduced penalties, the area restored, and with improvements in design.. The finished pier, validated, re-graded, reduced penalties, the area restored, and with improvements in design..

An open-ended waiver of the state Wetlands Protection Act's twenty-one (21) day deadline for issuing a decision after the close of a public hearing is invalid when required as part of a Notice of Intent application package.

That is one of several important rulings in a recent Massachusetts Supreme Judicial Court ("SJC") case known as Garrity v. Conservation Commission of Hingham, Mass. (2012).

The SJC first ruled that an applicant may waive the requirement that a conservation commission issue an order of conditions within twenty-one days after closing a public hearing on a notice of intent. However, the Court clarified that "any waiver must be voluntary in fact, its duration must be defined and reasonable in length, and notice of the waiver's duration must be a matter of public record, available to all interested persons."

The relevant facts are as follows. The plaintiff, Michael Garrity, filed a notice of intent ("NOI") under the Act and Hingham's non-zoning wetlands bylaw proposing construction of a pile-supported pier at his oceanfront property. The pier would extend from a land-based platform to a pile-held floating dock approximately 175 feet from the mean high water line.

The Commission's guidelines for filings included a checklist for a complete NOI package, which stated "THE HINGHAM CONSERVATION COMMISSION WILL NOT ACCEPT INCOMPLETE FILINGS. You must check off all items applicable to your project, sign & return to [the Commission] with the completed [NOI]." The checklist included a waiver form entitled "Hingham Conservation Commission Waiver of 21–Day Deadline" and the statement, "I have read and signed the [Commission's] Waiver of 21–Day Deadline." Garrity's NOI package contained a completed checklist and a completed waiver form.

The Hingham Conservation Commission (the "Commission") received Garrity's NOI on March 9, 2009, and scheduled a public hearing for March 23. Garrity requested a continuance of the hearing to April 6, to allow the Commission's peer-review consultant to review the NOI. The public hearing was held on April 6, and the Commission closed the public hearing that same night.

The Commission met again twenty-one days later, on April 27, and voted to deny Garrity's proposal under the town bylaw. An Order of Conditions was issued the following day, on April 28, twenty-two days after the public hearing closed.

Garrity appealed to MassDEP. MassDEP issued a Superseding Order of Conditions (the "SOC") allowing Garrity's project, based on the Commission's failure to act within twenty-one days of the close of the public hearing, as required by the Act.

Before MassDEP issued the SOC, the Commission issued an Enforcement Order to Garrity. The Enforcement Order was based solely on observations made by Commission members and staff. No formal hearing was held, and Garrity presented no evidence; the Enforcement Order was issued by the Commission's agent on June 22 and ratified by the Commission on June 29. It alleged that Garrity violated the Act by installing a stairway, deck, granite steps, and stepping stones within jurisidictional Resource Areas, without an order of conditions.

Garrity appealed the Order of Conditions and Enforcement Order to Superior Court. There, the Commission argued that Garrity had waived the twenty-one day deadline for issuance of a decision. The Superior Court judge determined that Garrity's waiver of the twenty-one day deadline was ineffective, and the SOC controlled. The judge found that the record contained insufficient evidence to support the Enforcement Order, and reversed it. The Commission appealed.

The SJC ruled that the Commission's checklist "would reasonably be understood by an applicant to require submission of a signed waiver form as part of the application." The fact that Garrity knew that other checklist items did not apply to his project was irrelevant. Taken together, the waiver form and checklist did not demonstrate a clear waiver of Garrity's rights.

Thus, the SJC rejected the argument that Garrity voluntarily submitted the form, ruling that the Commission failed to meet its burden of proving that the deadline had been waived. The Order of Conditions was void, and the SOC controlled.

Turning to the Enforcement Order, the SJC reversed the trial judge's decision. The SJC clarified that the proper standard of review for a certiorari review of an administrative, discretionary decision not made in an adjudicatory proceeding is the "arbitrary and capricious" standard. The trial judge had incorrectly applied the "substantial evidence" standard. A critical factor was that the "enforcement order [was] not the product of an adjudicatory proceeding involving the presentation of evidence. Rather, the order constitutes discretionary action by the commission pursuant to its undisputed authority to enforce the act within the town." Therefore, it was not for the Court "to determine whether the record contains substantial evidence to support the commission's action but, rather, to decide whether the commission exercised its discretion arbitrarily and capriciously." Garrity had failed to sustain his burden of establishing that the Commission acted arbitrarily and capriciously.

This case provides two important lessons for conservation commissions. First, an applicant may waive the requirement that an order of conditions issue within twenty-one days after closing a public hearing on a notice of intent, so long as the waiver is voluntary in fact, of a defined and reasonable length, and notice of the waiver's duration is part of public record. Second, the standard of review governing an appeal of an enforcement order will be directly tied to the proceedings leading to that order. If the order is issued following a meeting or public hearing where evidence is taken, the court will look at the record to determine whether the order is supported by substantial evidence. Otherwise, the court will consider whether the commission exercised its discretion arbitrarily and capriciously.

Read 5351 times Last modified onFriday, 13 February 2015 16:12
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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