According to the Wetlands Protection Act, when an applicant files a notice of intent with a local conservation commission to perform work that may impact wetlands, the commission has 21 days to open a public hearing to consider the impact of the proposed work on the wetlands. If a commission fails to open a public hearing within 21 days, an applicant may bypass the commission and apply directly to MassDEP for its approval in the form of a request for a superseding order of conditions. In such circumstances, the superseding order of conditions controls and the conservation commission loses all jurisdiction over the project described in the notice of intent. An advantage to filing a request for a superseding order from MassDEP is that state wetlands regulations are often less stringent than local regulations.

As one might imagine, applicants watch the 21-day clock closely. The plaintiff in a recently decided Appeals Court case, Cave Corporation v. Conservation Commission of Attleboro, was no different. The Attleboro Conservation Commission opened a public hearing on the evening of the 22nd day after Cave submitted to the Commission notices of intent to construct houses on Lots 4, 5, 6 and 7 in its subdivision. Because 21 days had passed, Cave, earlier in the day, requested a superseding order from MassDEP. Cave subsequently received a superseding order from MassDEP allowing construction of  the houses.

However, Cave’s satisfaction at being able to proceed with construction of the houses completely free of local regulation was short lived. Prior to filing its notice to build the houses, Cave had filed a separate notice with the Commission to build a roadway extension to service the entire subdivision. The Commission issued an order of conditions authorizing the roadway extension with a condition prohibiting any work within 125 feet of two vernal pools located on the property, which included the area containing the driveway proposed for Lot 7. MassDEP’s superseding order approved construction of the Lot 7 driveway because its vernal pool regulations are less stringent than the local regulations. Based on its previous prohibition of any work within the vernal pool buffer area, the Commission asserted that, notwithstanding MassDEP’s superseding order, Cave was precluded from building the Lot 7 driveway.  Cave unsuccessfully appealed the Commission’s decision in Superior Court, and then appealed to the Appeals Court.

Cave made three arguments on appeal, all of which amounted to the position that once Cave obtained MassDEP’s superseding order to build the houses, the Commission lost its jurisdiction within the lots, even if, as in the case of the Lot 7 driveway, the Commission prohibited the work in an earlier order of conditions. The Appeals Court disagreed, stating that it “would be anomalous indeed for the DEP’s superseding order of conditions for Lot 7 to abrogate the terms of a previously and validly issued Order of Conditions regulating that lot simply because the same land was the subject of additional work described in a subsequently filed Notice of Intent.”