McGregor & Legere PC

Switch to desktop

A conservation commission may want to enforce the Wetlands Protection Act (hereinafter,  the “Act”) and its wetland bylaw or ordinance (hereinafter, “bylaw”) against a project that was built a while ago without commission approval. The impetus might be a tip from a resident or new observation by a commissioner or agent.  A recent decision of the Massachusetts Appeals Court provides important guidance and useful reminders.

Published in Wetlands Protection

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”).

Published in Wetlands Protection

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 Otherwise a commission risks having its decisions under both state and local laws superseded by MassDEP in an appeal under the Act.

Published in Wetlands Protection

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  

Published in Wetlands Protection

We successfully defended a Cape Cod coastal homeowner from challenges by his neighbor to his state and local wetlands permits for home expansion on his waterfront lot, in the Town of Falmouth, which has a particularly comprehensive local Home Rule wetlands bylaw and Conservation Commission regulations, on a lot surrounded by wetland Resource Areas.

We successfully defended these permits through an adjudicatory hearing at DEP under the Wetlands Protection Act and in Superior Court and the Appeals Court under the bylaw, which upheld the Town.

 

Published in Featured Cases

We successfully overturned the Chatham Conservation Commission’s denial of a pond management plan proposed by our client, the Fox Run Property Owners, Inc. whose homes abut the privately owned pond suffering from advanced aquatic weed growth.

We prevailed in two separate appeals, winning approval from the DEP under the state Wetlands Protection Act, and settling litigation in Superior Court calling for the Commission’s approval of the project, as had been initially proposed, under Chatham’s Wetlands Protection Bylaw.

Our evidence included state of the art studies and documentation of the pond’s condition, prior management attempts, alternative management techniques, and the chosen combination of mechanical removal, chemical treatment, and conditions for pond restoration. The pond restoration plan is now being implemented successfully.

 

Published in Featured Cases

We successfully resolved enforcement actions taken by the local conservation commission as well as DEP under the Wetlands Protection Act and Chapter 91 against our client cottage owner in Southeastern Massachusetts for a pier allegedly constructed larger than permitted.

We negotiated validation of the pier construction and associated grading, mitigation and restoration of the affected area, reduction in the proposed monetary penalties, and modifications to make the structure stronger to face coastal storms. The matter was successfully resolved.

Published in Featured Cases

The state Appeals Court recently ruled that a Conservation Commission cannot deny work without explicit and objective reasons why the Commission is rejecting the applicant's uncontested evidence. In Pollard v. Conservation Commission of Norfolk, the Massachusetts Appeals Court (the "Appeals Court") said that the Commission, in disbelieving or rejecting uncontradicted evidence, cannot simply say that the applicants' evidence was "not credible" and that the applicants "failed to sustain their burden."

Published in Wetlands Protection

©1999-2018 McGregor & Legere, PC - This web site may contain attorney advertising under rules of the Supreme Judicial Court of Massachusetts.

Website by Azurelink.

Top Desktop version