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Supreme Judicial Court Instructs Conservation Commissions on Home Rule Wetland Protection Power: Use It or Lose It

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Bridge pilings visible between Moon Island and Long Island, Boston, MA. Bridge pilings visible between Moon Island and Long Island, Boston, MA.

The Appeals Court in 2016 had taught the lesson well, but many boards, attorneys and clients apparently missed that class, so the Supreme Judicial Court has instructed us again, this time in a masterclass. 

In the case of Parkview Electronics Trust, LLC v. Conservation Commission of Winchester, 88 Mass. App. Ct. 833 (2016), the Appeals Court had reinforced that a local conservation commission can have regulatory authority under a local wetland protection town bylaw or city ordinance that is independent from, and in addition to, its authority under the state Wetlands Protection Act (“Act”).

Under the Parkview decision, the effective use of this municipal authority was made contingent on the commission relying on bylaw provisions which are more stringent than those in the Act. This test of reliance is important. Otherwise, the commission decision is said to be null and void as preempted by the state.

This rule of preemption in the field of municipal wetlands protection is sometimes (half-seriously) referred to as the DeGrace Doctrine, named after the case of DeGrace v. Conservation Comm'n of Harwich, 31 Mass. App. Ct. 132, 135-136 (1991). 

As the SJC enunciated in seminal cases since then, where a conservation commission "rests its determination on provisions of a local bylaw that are more protective than the act[,] . . . a superseding order of conditions issued by the DEP cannot preempt the conservation commission's bylaw-based determination." Oyster Creek Preservation, Inc. v. Conservation Comm'n of Harwich, 449 Mass. 859, 865 (2007). "This rule is [premised] on the recognition that the act establishes Statewide minimum wetlands protection standards, and local communities are free to impose more stringent requirements." Oyster Creek at 866.

It is established, therefore, that if a commission relies on a bylaw provision that is not stricter than state law, it risks having its decision superseded by the Massachusetts Department of Environmental Protection (“MassDEP”). The same thing can happen if a commission relies on the Act or MassDEP regulations rather than its local provisions.

The issue came before the SJC in City of Boston v. Conservation Commission of the City of Quincy, SJC No. 13244, July 25, 2022 (LW 10-092-22). Boston had filed an NOI with the Quincy Conservation Commission (Commission) to rebuild a bridge to Long Island in Boston, as the bridge work (specifically the piers and roadway) would alter wetlands in Quincy. The Commission denied Boston's application pursuant to the Act and Quincy's local wetlands ordinance. 

Boston appealed the denial to MassDEP for a Superseding Order of Conditions, which MassDEP granted as the project met the requirements of the Act and MassDEP Regulations. Boston also appealed to Superior Court, for review in the nature of certiorari (for any legal errors on the certified record), insofar as the denial was under the ordinance. The Superior Court overturned the Quincy denial and Quincy took appeal to the Massachusetts Appeals Court. 

The SJC took the case from the Appeals Court to decide it directly, likely due to the important principles of Home Rule at stake and the opportunity to pronounce definitively how municipal decisions (including denials) stand or fall on how they implement their local wetland laws. 

In the Boston-Quincy dispute, the issue for the SJC as usual was whether MassDEP's order supersedes the Commission's local ordinance denial decision. The Commission argued that it relied on its ordinance's reference to "cumulatively adverse effect[s] upon wetland values," and that this language is more stringent than the language in the Act. 

This stricter-than-the-Act language had been approved by the Appeals Court in an earlier case, as a basis for upholding a denial. Cave Corp. v. Conservation Comm'n of Attleboro, 91 Mass. App. Ct. 767, 771-772 (2017). 

Several cities and towns have this “cumulative effects” language in their Home Rule wetland protection bylaws and ordinances and sometimes take heart that the Cave Corp. case validates that wording and lets commissions consider and rely on it in evaluating and acting on projects. The lesson from the Boston-Quincy case, as we will shortly see, is that it matters whether they merely invoke it or actually utilize it. 

The SJC in this Boston-Quincy case distinguished the Cave Corp. case, saying that the Attleboro commission concluded that any disturbance to the 125-foot area on the subject parcels of land will result in cumulative adverse impacts upon the resource area values. This conclusion was appropriate despite a MassDEP superseding order of conditions "[i]n light of the commission's mandate to consider the cumulative effects of the proposed subdivision with regard to the purpose and the objectives of the ordinance, and the evidence before it." Cave Corp. at 771-772, 774. 

Specifically, in Cave Corp. the Attleboro ordinance itself, in so many words, specified the cumulative effects that the commission should consider. It directed the commission to "take into account the cumulative adverse effects of loss, degradation, isolation, and replication of protected resource areas throughout the community and the watershed, resulting from past activities, permitted and exempt, and foreseeable future activities.” Cave Corp. at 773.

The crux of the case before the SJC was whether the Quincy Commission actually relied on – and explained in its decision how it relied on – the provisions of its ordinance and any regulations to support its project denial. It did not. Therefore, the SJC here concluded that the MassDEP order supersedes the Commission’s denial. 

The SJC as well as the Appeals Court earlier had cautioned in this line of cases that "[t]he simple fact[] . . . that a local by-law provides a more rigorous regulatory scheme does not [prohibit] 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 Envtl. Protection, 73 Mass. App. Ct. 714, 718-719 (2009). 

A local conservation commission, then, that wishes to rely on a more stringent local bylaw or ordinance to deny a project must explain how the bylaw or ordinance applies to the facts presented. "[I]f a town conservation commission simply refers to a by-law without providing any indication that its protective provisions, and a commission's general reference to the by-law in its decision, without elaboration, would allow it to insulate the decision from scrutiny". Oyster Creek Preservation, Inc. v. Conservation Commission of Harwich, 449 Mass. 859 (2007), at 866 footnote 12. 

As applied to Quincy, the SJC ruled: “(T)he commission claims it relied on the local ordinance's reference to ‘cumulatively adverse effect[s] upon wetland values,’ and that this language is more stringent than the language in the act. According to the commission, it did not have enough information to determine the cumulative effects of the work that would occur on the piers and the access road. The 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. Accordingly, and as discussed further infra, we conclude that the DEP's superseding order of conditions preempts the commission's determination.”

It was relevant to the SJC that “the local ordinance is concerned almost entirely with the procedure for permit applications. Its substantive provisions are limited to broad ‘[p]urpose’ and ‘[s]cope’ sections, which merely prohibit several activities in protected areas without the commission's approval. These sections do not give the commission additional authority over fisheries, wildlife habitats, pollution, land under the ocean, or land containing shellfish that the DEP does not also have.”

On this score the SJC held that “the commission did not rely on cumulative effects when analyzing the piers. The commission relied on distinct factors that the DEP also could consider pursuant to the act and the regulations. Additionally, the ordinance at issue in Cave Corp., unlike the local ordinance here, specified the cumulative impacts that the commission should consider.”

In summary, since the Quincy Conservation Commission did not couch its stated concerns on wetland interests different than the Act, did not base its findings on any Regulations other than those of MassDEP, did not raise issues other than those within the purview of MassDEP, and did not have an ordinance stricter than the Act except in its general purpose and scope language, the Quincy denial was preempted. 

Legally, the Commission’s ordinance denial was null and void and thus of no legal effect, and hence the MassDEP permit governs the wetland aspects of the Long Island Bridge reconstruction. 


Mr. McGregor is the founding member of the Boston law firm McGregor Legere & Stevens PC and member of the MACC Board of Directors.  

 

Read 197 times Last modified on Wednesday, 31 August 2022 16:41
Gregor I. McGregor, Esq.

GREGOR I. McGREGOR, Esq. is the founder of New England’s oldest environmental law firm McGregor & Associates, PC in Boston, formed in 1975 and now McGregor Legere & Stevens,PC (formerly McGregor & Legere PC). The firm handles all aspects of environmental law, land use, real estate, and related litigation. The firm is a founding member of the Environmental Law Network (ELN), an alliance of specialty law firms, in the United States and abroad, sharing their legal expertise and practical experience for the benefit of their clients. Mr. McGregor enjoys Martindale-Hubbell’s highest rating for attorneys (AV).

In 45 years of environmental practice, Mr. McGregor's cases in court broke new ground in the law of Environmental Impact Statements under the National Environmental Policy Act (NEPA) and Massachusetts Environmental Policy Act (MEPA), wetland and floodplain protection under the Massachusetts Wetlands Protection Act, hazardous waste cleanup liability and cost-recovery under the Massachusetts Superfund, reduced taxes and tax exemptions for qualified land conservation transactions, constitutional protections for open space and parkland, Home Rule environmental ordinances and bylaws of cities and towns, law enforcement and contempt remedies, and the constitutional doctrine of Regulatory Takings.

Before 1975, Mr. McGregor was an Assistant Attorney General of Massachusetts and the first chief of the Attorney General’s Division of Environmental Protection. In that capacity he advised and represented the Commonwealth during the formative years of Massachusetts environmental statutes, agencies, regulations, enforcement and cases in court.

Mr. McGregor is editor of the two-volume treatise on Massachusetts Environmental Law, published by Massachusetts Continuing Legal Education, Inc.(MCLE). He is co-chair of MCLE’s annual Environmental, Land Use, and Energy Law Conference and MCLE’s Real Estate and Environmental Law Curriculum Advisory Committee. He received from MCLE in 2013 its Scholar-Mentor Award recognizing his dedication to legal scholarship and leadership.

Mr. McGregor chairs the Environmental Committee of the Real Estate Bar Association for Massachusetts (REBA) and serves as a member of the REBA Board of Directors. He is an active member of the Massachusetts Municipal Lawyers Association (MMLA), which honored him for his career contributions to legal education and effective advocacy on the Home Rule Doctrine. At the National CLE Conference in Vail, CO, Mr. McGregor co-chairs an annual seminar on Environmental Law, Land Use, Energy & Litigation for attorneys from across the United States.

Mr. McGregor is a long time member of the board of directors of the Massachusetts Association of Conservation Commissions (MACC) having served as Board President twice. He has handled several cases for MACC as amicus and is a regular presenter at their annual meeting.

Mr. McGregor is a graduate of Dartmouth College and Harvard Law School.

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