Enforcement Actions Under the Wetlands Protection Act May Be Commenced against Subsequent Owners Long after the Act Is Violated
The Wetlands Protection Act, M.G.L. c.131, §40, prohibits the removal, filling, dredging, or alteration of wetlands without first obtaining an order of conditions from the local Conservation Commission, unless a statutory exemption exists. People who acquire real estate upon which work has been done in violation of the Act may be required to restore the property to its prior condition, but an enforcement action must be brought within three years of the date of acquisition. M.G.L. c.131, §40. In Conservation Commission of Norton v. Pesa, the Supreme Judicial Court considered the meaning of this statute of repose. A statute of repose differs from a statute of limitations because it does not specify that an action must be filed within a specific period of time after which the cause of action accrues, but rather prohibits the commencement of an action against any person after the occurrence of one or more other events—in this case, “the recording of the deed or the date of death by which such real estate was acquired by such person.” M.G.L. c. 131, §40. The Court ruled that conservation commissions may seek enforcement against subsequent owners of property on which violations have previously occurred, if the action is commenced within three years of the event through which the new owner acquired the property, regardless of the number of intervening transfers of ownership that may have occurred.
In the Pesa case, the owner of property in the Town of Norton filed a notice of intent with the local conservation commission in 1979 that, among other things, authorized the placement of fill on the property for the construction of a parking lot. The Commission issued an Order of Conditions, which the owner subsequently deviated from by adding approximately 11,000 square feet of excess fill. Years later (in 1996), the owner deeded the property to himself and his wife, and he died 10 years after that transfer. The defendants sought to purchase the property in 2014, at which point an attorney working on the closing requested a Certificate of Compliance from the Commission for the 1979 work. Finding multiple violations of the order, the Commission declined to issue the Certificate and requested that the unauthorized fill be removed.
The defendants nevertheless went forward with the property purchase and, when discussions failed to produce a satisfactory resolution, the Commission issued an enforcement order in 2015. The defendants ignored that order and, in 2016, the Commission filed an action in Superior Court seeking injunctive relief and civil penalties. The Superior Court judge granted summary judgment to the defendants, concluding that the three-year statute of repose barred the enforcement action. Specifically, the judge determined that any enforcement action must have been brought within three years of the first transfer of ownership of the property and that the Commission could not commence any action after 1999.
The SJC disagreed, pointing to the statutory language providing that “any person” is subject to an enforcement action for work done in violation of the act, as long as the action is commenced within three years after “such person” acquires the property. Based on this language, the Court concluded that the statute of repose was “personal” to each new property owner, and its protection could therefore not be transferred from property owner to the next.
The recitation of facts makes it clear that the defendants purchased knowing that there had been a violation of the Conservation Commission’s Order of Conditions by the prior owners. Quaere whether a purchaser in good faith, without knowledge of the violation, would have been treated differently. But prospective purchasers are now clearly on notice that the absence of a Certificate of Compliance may subject them to potential enforcement action under the Act if they proceed with the purchase.