Massachusetts Land Use Monitor

Massachusetts Land Use Monitor

Real-Time News & Commentary on Massachusetts Land Use & Real Estate Law

Category Archives: Wetlands

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No Damages to Owner Whose Lot Is Unbuildable Due to Wetlands Regulations

Posted in Eminent Domain, Environmental, Regulatory Takings, Wetlands, Zoning
When the Conservation Commission refused to permit the construction of a house on her residential lot in a Falmouth subdivision, Janice Smyth decided to take action and sought damages for a regulatory taking of her land under the U.S. Constitution and the Massachusetts Declaration of Rights.  She was successful initially, recovering damages of $640,000.  But,… Continue Reading

Regulatory Taking, Anyone?

Posted in Environmental, Police Power, Regulatory Takings, Waterfront Property, Wetlands
  A Cape Cod jury, after a scant one-hour deliberation, decided in favor of a Falmouth landowner who claimed that the Falmouth Conservation Commission’s refusal to grant variances from the Town’s Wetlands Protection Bylaw deprived her of all beneficial use of her property. The jury in Smyth v. Falmouth Conservation Commission and the Town of… Continue Reading

Supreme Court’s Koontz Decision May Help Landowners Fighting Mitigation Payments

Posted in Environmental, Regulatory Takings, Wetlands
Yesterday the United States Supreme Court issued its long-awaited decision in Koontz v. St. Johns River Water Management District (pdf).  The court split 5-4 along the usual lines.  According to the dissent, this decision may have a significant impact on real estate developers and the boards and commissions that regulate them. The plaintiff, Koontz, wanted to develop 3.7 acres of his… Continue Reading

SJC Nixes Forced Waiver Of Wetlands Protection Act Deadlines

Posted in Environmental, Wetlands
In a decision issued this morning in Garrity v. Hingham Conservation Commission (pdf), the Supreme Judicial Court (SJC) ruled that the Wetlands Protection Act’s (WPA) 21-day deadlines for local conservation commissions to hold a public hearing on a notice of intent and to issue a decision after the public hearing are waivable by the applicant, provided the waiver is (1) intentional, (2)… Continue Reading

If Not You, Then Who? Appeals Court Addresses Who Is Responsible for Protecting Wetlands

Posted in Environmental, Wetlands
The Appeals Court’s recent decision in Conservation Commission of Brockton v. Department of Environmental Protection presents a relatively rare instance where local and state regulators disagree about the administration of a statute under which they both have responsibilities.  The statute is the Wetlands Protection Act (WPA).  Under the WPA, a local conservation commission is the initial… Continue Reading

Certiorari Appeal Timeline Is A Trap For The Unwary

Posted in Miscellaneous, Wetlands
In an “unpublished” decision in the case of Carney v. Town of Framingham (pdf) (further appellate review denied), a panel of the Appeals Court ruled that the statutory 60-day period for filing a certiorari appeal starts on the date the administrative agency takes its “last administrative action” – in this case a vote – not when the agency later reduces its decision to writing. M.G.L. c. 249,… Continue Reading

Federal Wetlands Jurisdiction Still Murky

Posted in Legislation, Policy, Wetlands
The federal Clean Water Act (CWA) prohibits the discharge of pollutants from any point source into “navigable” waters of the United States without a Section 404 Permit issued by the Army Corps of Engineers (Corps).  Once this permit has been issued, the Environmental Protection Agency (USEPA) monitors permit compliance, sharing concurrent jurisdiction with the Corps. There has been a… Continue Reading

Conservation Commission’s Late “Determination of Applicability” Is DOA

Posted in Wetlands
In a recent unpublished decision, an Appeals Court panel again strictly applied the 21-day deadline for conservation commission action under the state Wetlands Protection Act (WPA) (see related commentary here).  In Huie v. Conservation Commission of Scituate (pdf), the plaintiffs sought certiorari review of a Determination of Applicability (DOA) that the Scituate Conservation Commission issued with regard to their neighbor’s beachfront property.  The… Continue Reading

Appeals Court Awards Attorneys’ Fees To Developer Harassed By “10 Citizens” Group

Posted in Environmental, Miscellaneous, Wetlands
The Appeals Court recently awarded nearly $20,000 in attorneys’ fees – the full amount sought – to a developer whose project was delayed for several years by the serial appeals of a so-called “10 Citizens” group opposed to the project.  (Disclosure:  I am real estate counsel to the developer, and my colleagues Don Pinto and… Continue Reading

SJC on Regulatory Takings: That Word Does Not Mean What You Think It Means

Posted in Policy, Regulatory Takings, Wetlands
It is a truth universally acknowledged that property owners don’t like restrictions on how they may use their land.  It is a truth equally acknowledged, however, that state and local governments can enact laws and regulations — zoning bylaws, environmental rules, nuisance statutes — that limit what landowners can do with their land.  Just when a… Continue Reading

Lyon v. Duffy

Posted in Wetlands
Plaintiffs bought a single-family residence and learned after closing that the property was subject to a recorded Order of Conditions (OOC) that required a substantial amount of work on an ocean-facing coastal bank.  The prior owners had not completed the required work.  The plaintiffs sued their lender’s attorney, who had certified that they were receiving good title to the property.  The Appeals Court held… Continue Reading

Missed Deadline Deprives Conservation Commission of Jurisdiction, Even if Project Plans Change

Posted in Wetlands
On August 26, 2010 in Regan v. Conservation Commission of Falmouth (pdf), a divided Appeals Court panel held that the Falmouth Conservation Commission didn’t have authority to review revised development plans where the Commission had earlier failed to act within the 21 days required under the local wetlands by-law.  The permitting process in Regan was not… Continue Reading