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, in Smyth v. Conservation Commission of Falmouth, the Appeals Court reversed the lower court’s decision.

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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 Ocean front summer vacation rental under a blue sky. Outer Banks. North Carolina. Horizontal]-For more bodies of water images, click here. OCEAN LAKE RIVER and SHOREproperty. The jury in Smyth v. Falmouth Conservation Commission and the Town of

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.A1029221.jpg

The plaintiff, Koontz, wanted to develop 3.7 acres of

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,

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).power plant  Under the WPA, a local conservation commission is the

In an “unpublished” decision in the case of Carney v. Town of Framingham (pdf) (further appellate review denied), a panel of the Appeals Court ruled that the statutory 60-day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

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.

DJB wetlands blog photoThere has

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

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