Local wetlands bylaw (or ordinance) jurisdiction over projects in and near resource areas depends on Conservation Commission compliance with the 21-day deadlines for commencing public hearings and issuing decisions on Notices of Intent (NOI). Indeed, you may safely regard those timing provisions in the state Wetlands Protection Act (the Act) as binding on the Commission, with failure to meet them potentially fatal to any decision the Commission may render. 

In its August 10, 2020, decision in the case of Wellesley Conservation Council, Inc. v. Pereira (AC 19-P-753), the Massachusetts Appeals Court addressed the scope of enforcement options available to the holder of a Conservation Restriction (CR), in particular whether injunctive relief (like restoration and replanting) is the holder’s sole remedy for violations of the CR’s terms, or does it include money damages, too. The answer is yes to damages.

(Revised July 27, 2020)

UPDATE: On July 1, 2020, the Governor issued COVID-19 Order No. 42, “Order Resuming State Permitting Deadlines and Continuing to Extend the Validity of Certain State Permits” which changes some of the deadlines discussed above. A summary of Order No. 42 can be found here. In essence, Order No. 42 replaces Order No. 19 which was the underpinning of several of the answers provided by DEP in its FAQ. Most notably, MassDEP’s deadline to appeal to itself an Order or Determination will now end on August 10, 2020.

The Massachusetts Legislature has enacted a legal framework for municipal boards, including conservation commissions, to receive and process applications, conduct meetings and hearings, make and issue decisions, take enforcement actions, and otherwise function during the state of emergency declared by Governor Baker on March 10, 2020.¹

At its Annual Environmental Conference (AEC) at Holy Cross College in Worcester on February 29, 2020, attended by 800 people, the Massachusetts Association of Conservation Commissions (MACC) gave our founding partner Gregor McGregor recognition for his long service to environmental law in general, conservation law especially, and wetlands protection law most particularly.

The Appeals Court in Parkview Electronics Trust, LLC v. Conservation Commission of Winchester, 88 Mass. App. Ct. 833 (2016), reinforced the well-established principle that a local conservation commission can have regulatory authority under a wetlands bylaw or ordinance (hereinafter “bylaw”) that is independent from, and in addition to, its authority under the state Wetlands Protection Act (“Act”).