Appeals Court Sets Limit on Wetlands Enforcement and Cautions on Imposing Fines Featured

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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.

By way of background, the Act was amended in 1989 to provide that each day someone violates the Act is a separate offense for as long as the violation continues.  This is commonly known as a “continuing  violation.”

For enforcement commenced long after the fact, especially if it goes to court, a proven “continuing violation” may avoid the expiration of a two-year period to enforce the Act (commonly called a statute of limitation). This two-year provision might otherwise block enforcement.

In a developer’s challenge to an enforcement order issued by the Bridgewater Conservation Commission, more than a decade after the subdivision was built, the Appeals Court recently held that a mere procedural violation of the Act is not a continuing violation and so is subject to the Act’s two year statute of limitations. That ended the Town’s effort to obtain compliance with its enforcement order and collect fines for not
obeying the enforcement order.

According to the Appeals Court, only conduct that alters Resource Areas can be a continuing violation.  Having invalidated the enforcement order for that reason, the Appeals Court held that there was no basis for the commission’s retroactive imposition of fines for failing to comply with that order.  The Court, while noting that the Commission’s procedure in imposing retroactive fines likely did not provide the alleged  violator sufficient constitutional “due process,” also seemed to question the authority of a Commission to impose fines at all. 

The Appeals Court decision, issued under its Rule 1:28, is Marcia Dubee, Trustee, vs. Conservation Commission of Bridgewater, Docket No. 15-P-981, April 13, 2017.  Although decisions issued under Rule 1:28 are not binding precedent like are other decisions of the Appeals Court, this case is still instructive for commissions as they carry out enforcement.

FACTS OF THE CASE

The Commission’s enforcement order here concerned the construction of a four-lot subdivision’s drainage system which allegedly was in the buffer zone to an abutter’s fish pond.  In 2002, the developer, a real estate trust, applied for and received subdivision approval from the Bridgewater Planning Board. The Commission’s agent was a member of the Planning Board at the time.  The Whispering Woods subdivision was constructed in 2005.

The owner of the fish pond and another neighbor say that they notified the Town many times over a ten-year period that the subdivision’s stormwater runoff was causing the pond to cave in, but no action was taken.  

Only after receiving a letter in January 2012 from the Massa-chusetts Inspector General, did the Commission begin enforcement action.  The Commission discussed the situation at
a February 2012 meeting with the pond owner and neighbor present.  At a second meeting without the developer present, the Commission viewed photos showing removal of fill in 2002 and 2003. The Commission reviewed a draft letter asking the developer to file an after-the-fact NOI or RDA. In early March 2012, the Commission sent a letter to the developer requesting that it file an after-the-fact RDA with a plan showing Resource Areas and work done for the subdivision.

The developer refused, citing four reasons in a letter to the Commission:  there was no attempt to circumvent any permitting; it had complied with all Planning Board requirements; no one had filed an appeal or an RDA since construction was completed; and there is a two-year statute of limitations under the Act.

The Commission discussed the developer’s response at April and May 2012 meetings.  Acting on its agent’s recommendation, it issued an enforcement order under both the Act and Bylaw directing the developer to file an RDA or NOI by May 24, 2012, or face additional legal action including imposition of civil and administrative penalties.
As the developer filed neither a RDA nor NOI, the Commission at late May and late June 2012 meetings discussed how to proceed. At the late June meeting, the Commission voted to impose fines of $100 per day, retroactive to May 24, 2012.  

Thirteen days later, the Commission notified the developer by letter of its action, by which time fines of at least $4,700 had accumulated.

Meanwhile, in mid-June, 2012, the developer filed suit in Superior Court challenging the enforcement order.  Ruling on the papers filed by the parties and without any trial, the Superior Court judge upheld the Commission’s enforcement order deciding that the developer’s violation was a continuing violation so the two-year statute of limitations did not apply. The Superior Court also upheld imposition of fines because the developer
“openly refuse[d] to comply with the enforcement order.”

APPEALS COURT DECISION

The Appeals Court reversed the Superior Court, deciding that the Act’s two year statute of limitations applied, thus making the Commission’s attempted enforcement too late.  Even if
there was construction in the buffer zone, the Appeals Court explained, there was no finding by the Commission that such work would alter, or had altered, Resource Areas.  

Photographs showing dirt removal for construction of the stormwater management system did not demonstrate to the Appeals Court that dirt removal had, in fact, altered the fish pond.  Without such a finding of alteration, the Appeals Court determined that the developer had committed only a procedural violation of the Act.  

The Appeals Court reasoned that a procedural violation is not a continuing violation because a continuing violation is limited to conduct that alters Resource Areas. The Appeals Court held that the two-year statute of limitations barred the enforcement
order because the developer’s procedural violation occurred on or before 2005.   

This reminds commissions that they should not wait to undertake enforcement actions, and, if they are serious, they should go to court before the two-year deadline.  An enforcement order should be issued well before the two year anniversary of a violation to provide enough time to see if a violator will comply and, if not, time for the Commission to go to court to seek compliance (and penalties). The two-year deadline is met only by commencement of a case in court, not by merely sending a letter, serving an enforcement order, or other administrative action.

Having held it lacked a valid enforcement order, the Appeals Court also held that the Commission’s decision to impose fines could not be sustained. In reviewing the Commission’s action, the Appeals Court made two noteworthy points.

First, the Appeals Court doubted whether the Commission’s procedures in imposing fines retroactively provided sufficient due process to the developer.  The Court suggested it did not do so where the Commission had not provided public notice or personal notice to the developer that it was considering imposing fines and had not provided an opportunity to be heard before voting to do so.  The Court frowned on the Commission taking thirteen days to notify the developer of its imposition of retroactive fines.

This point reminds commissions to involve alleged violators in enforcement action sooner rather than later to avoid running afoul of due process violations.  Another benefit is that this also helps to resolve enforcement issues sooner and more efficiently.

Secondly and perhaps more importantly, the Appeals Court in a footnote said the Commission did not cite the source of its authority to impose fines, and the developer did not raise it as an issue on appeal.  It is hard to tell from the Court decision itself, the meeting minutes, letters to the developer, and enforcement order what authority the Commission thought it had to impose fines.  

Some commissions believe that they can simply (by vote at a meeting) impose fines specified in a criminal statute, or issue citations or “tickets” (without the required specific authority or following the right procedure), or collect the criminal fines and civil penalties stated in the Act (up to $25,000 per day per violation). Such thinking is incorrect.  

A commission can seek and, if awarded by a court, collect money sanctions for violations of the Act and local wetland bylaw or ordinance, if there is one, in a number of ways.  MACC recommends that a commission ask to have its city or town grant its members and agent the authority to issue non-criminal citations, or “tickets”, under G.L. c. 40, § 21 D for wetland bylaw Protecting Wetlands and Open Space: MACC’s Environmental Handbook for Massachusetts Conservation Commissioners, p. 21.3.7.2 (hereinafter, Environmental Handbook
).

A commission can also prosecute in District Court proven criminal violations of its wetland bylaw.  It can bring its own civil action in Superior Court to enforce the Act and bylaw. Environmental Handbook, p. 21.3.5.4.  

A commission can ask others to assist with enforcement. Environmental Handbook, p. 21.3.6. It can enlist MassDEP to impose administrative penalties as prescribed in MassDEP regulations. It can ask the District Attorney, Attorney General, MassDEP, or Environmental Crimes Strike Force to seek civil penalties or criminal fines in state Superior Court lawsuits or prosecutions.  

A commission always should remember that the primary goal of enforcement is remediation of the harm to the resource area. Environmental Handbook, chapter 21.  Other purposes are to obtain prompt and continued compliance, and, when appropriate, seek penalties, criminal fines, or even imprisonment.

Nathaniel Stevens, Esq. is a Senior Associate with McGregor & Legere, P.C. and Chair of the Arlington Conservation Commission.

Read 4337 times Last modified on Tuesday, 17 October 2017 14:39
Nathaniel Stevens, Esq.

NATHANIEL STEVENS, Esq. is a Senior Associate of the Firm. 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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