In Boston Clear Water Co., LLC v. Lynnfield, the Massachusetts Appeals Court examined the effect of a local conservation commission’s failure to hold a timely public hearing on a notice of intent under M.G. L. c.131, §40, the Wetlands Protection Act. Observing that it was constrained by the Supreme Judicial Court’s decision in Oyster Creek Preservation, Inc. v. Conservation Comm’n of Harwich, 449 Mass. 859 (2007), the Appeals Court concluded that the local conservation commission lost its authority over a proposed project and DEP’s Superseding Order of Conditions controlled.
Boston Clear Water Company, LLC (BCWC) had filed a notice of intent with the Lynnfield Conservation Commission for proposed work on property subject to the Act and the Town’s Wetlands Protection Bylaw. Both the Act and the Bylaw require that a public hearing be held within 21 days of receipt of a notice of intent. The Commission advertised the public hearing to occur just shy of the expiration of 21 days. When the Town’s Director of Planning and Conservation realized that the Commission would lack a quorum for the meeting—and would not have a quorum until after the 21 days expired—she asked the applicant to agree to a waiver of the timing provision. The applicant’s representative responded that he would seek permission from the applicant for a waiver, but never followed up. The Commission proceeded to hold the public hearing more than 21 days after BCWC filed its notice of intent.
When the Commission failed to act in 21 days, BCWC sought a Superseding Order of Conditions from DEP. The Commission proceeded to hold its hearing notwithstanding the pending appeal to DEP and denied the project. Thereafter, DEP issued the requested Superseding Order. BCWC’s suit against the town and the Commission followed. The Commission argued that its denial should stand and urged the Appeals Court to determine that the Commission retained authority over a project unless the failure to hold a timely public hearing arose from bad faith or otherwise prejudiced the applicant. The Appeals Court concluded that the Commission lost the authority to regulate the project when it failed to hold a public hearing within 21 days of receipt of an application for a notice of intent.
In Oyster Creek, the issue was not that the public hearing on a notice of intent was untimely, but that the local conservation commission failed to issue its decision within 21 days, as required by the Act. The SJC determined that the untimely decision foreclosed the local conservation commission from exercising authority over a project and DEP’s superseding conditions controlled. 449 Mass. at 866. The Appeals Court determined that the SJC ruling had explicitly foreclosed an alternative remedy.
The decision highlights one of the significant burdens that local conservation commissions members take on when they volunteer to serve. In this case, the adage that “eighty percent of success is showing up” certainly applies. The Lynnfield Conservation Commission learned the hard way what can happen when a quorum cannot be mustered in a short window of time.