DJB wetlands blog photoOn 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 unusual.  The landowners applied for permission to construct a pier, ramp and floating dock.  The Commission denied the request,  but unfortunately (for the Commission) mailed the denial on the 22nd day after the close of the public hearing.  The landowner filed a request for a superseding order of conditions and appealed the local by-law denial to Superior Court.

The landowner then redesigned its plan during the course of the superseding order proceedings.  DEP issued a superseding order approving the revised plan.  The landowners asked the Commission to reconsider its earlier denial.  The Commission held a public hearing but decided to reject the revised plans.  This time, however, the Commission acted within 21 days following the close of the hearing.

The Superior Court found for the Commission, on the basis that the landowner had waived any procedural issue related to the first decision by going back to the Commission for approval of the revised plans.  The Appeals Court reversed, however, based on the Supreme Judicial Court’s 2007 decision in Oyster Creek Preservation v. Conservation Commission of Harwich (pdf).  The Appeals Court read Oyster Creek to mean that anytime a conservation commission fails to act within 21 days after the public hearing, it loses jurisdiction entirely – even over any changes to the development plan – and the superseding order of conditions controls.

Regan seems to be a very favorable decision for the landowner.  Read literally, it means that once a conservation commission loses jurisdiction, the superseding order of conditions controls, even if the landowner makes material changes to the development plans.  In this case the commission lost jurisdiction because it failed to timely act.  What happens, however, if the commission loses jurisdiction because a Superior Court finds that the local by-law is no broader than the Wetlands Protection Act?  Does Regan mean that in such a case the local commission has entirely lost jurisdiction over any changes to the project that occur during the superseding order proceedings?  Counsel for landowners will certainly argue that the commission has lost jurisdiction.