By way of background, the Act was amended in 1989 to provide that each day someone violates the Act is a separate offense for as long as the violation continues.  This is commonly known as a “continuing  violation.”

For enforcement commenced long after the fact, especially if it goes to court, a proven “continuing violation” may avoid the expiration of a two-year period to enforce the Act (commonly called a statute of limitation). This two-year provision might otherwise block enforcement.

In a developer’s challenge to an enforcement order issued by the Bridgewater Conservation Commission, more than a decade after the subdivision was built, the Appeals Court recently held that a mere procedural violation of the Act is not a continuing violation and so is subject to the Act’s two year statute of limitations. That ended the Town’s effort to obtain compliance with its enforcement order and collect fines for not
obeying the enforcement order.

According to the Appeals Court, only conduct that alters Resource Areas can be a continuing violation.  Having invalidated the enforcement order for that reason, the Appeals Court held that there was no basis for the commission’s retroactive imposition of fines for failing to comply with that order.  The Court, while noting that the Commission’s procedure in imposing retroactive fines likely did not provide the alleged  violator sufficient constitutional “due process,” also seemed to question the authority of a Commission to impose fines at all. 

The Appeals Court decision, issued under its Rule 1:28, is Marcia Dubee, Trustee, vs. Conservation Commission of Bridgewater, Docket No. 15-P-981, April 13, 2017.  Although decisions issued under Rule 1:28 are not binding precedent like are other decisions of the Appeals Court, this case is still instructive for commissions as they carry out enforcement.

FACTS OF THE CASE

The Commission’s enforcement order here concerned the construction of a four-lot subdivision’s drainage system which allegedly was in the buffer zone to an abutter’s fish pond.  In 2002, the developer, a real estate trust, applied for and received subdivision approval from the Bridgewater Planning Board. The Commission’s agent was a member of the Planning Board at the time.  The Whispering Woods subdivision was constructed in 2005.

The owner of the fish pond and another neighbor say that they notified the Town many times over a ten-year period that the subdivision’s stormwater runoff was causing the pond to cave in, but no action was taken.  

Only after receiving a letter in January 2012 from the Massa-chusetts Inspector General, did the Commission begin enforcement action.  The Commission discussed the situation at
a February 2012 meeting with the pond owner and neighbor present.  At a second meeting without the developer present, the Commission viewed photos showing removal of fill in 2002 and 2003. The Commission reviewed a draft letter asking the developer to file an after-the-fact NOI or RDA. In early March 2012, the Commission sent a letter to the developer requesting that it file an after-the-fact RDA with a plan showing Resource Areas and work done for the subdivision.

The developer refused, citing four reasons in a letter to the Commission:  there was no attempt to circumvent any permitting; it had complied with all Planning Board requirements; no one had filed an appeal or an RDA since construction was completed; and there is a two-year statute of limitations under the Act.

The Commission discussed the developer’s response at April and May 2012 meetings.  Acting on its agent’s recommendation, it issued an enforcement order under both the Act and Bylaw directing the developer to file an RDA or NOI by May 24, 2012, or face additional legal action including imposition of civil and administrative penalties.
As the developer filed neither a RDA nor NOI, the Commission at late May and late June 2012 meetings discussed how to proceed. At the late June meeting, the Commission voted to impose fines of $100 per day, retroactive to May 24, 2012.  

Thirteen days later, the Commission notified the developer by letter of its action, by which time fines of at least $4,700 had accumulated.

Meanwhile, in mid-June, 2012, the developer filed suit in Superior Court challenging the enforcement order.  Ruling on the papers filed by the parties and without any trial, the Superior Court judge upheld the Commission’s enforcement order deciding that the developer’s violation was a continuing violation so the two-year statute of limitations did not apply. The Superior Court also upheld imposition of fines because the developer
“openly refuse[d] to comply with the enforcement order.”

APPEALS COURT DECISION

The Appeals Court reversed the Superior Court, deciding that the Act’s two year statute of limitations applied, thus making the Commission’s attempted enforcement too late.  Even if
there was construction in the buffer zone, the Appeals Court explained, there was no finding by the Commission that such work would alter, or had altered, Resource Areas.  

Photographs showing dirt removal for construction of the stormwater management system did not demonstrate to the Appeals Court that dirt removal had, in fact, altered the fish pond.  Without such a finding of alteration, the Appeals Court determined that the developer had committed only a procedural violation of the Act.  

The Appeals Court reasoned that a procedural violation is not a continuing violation because a continuing violation is limited to conduct that alters Resource Areas. The Appeals Court held that the two-year statute of limitations barred the enforcement
order because the developer’s procedural violation occurred on or before 2005.   

This reminds commissions that they should not wait to undertake enforcement actions, and, if they are serious, they should go to court before the two-year deadline.  An enforcement order should be issued well before the two year anniversary of a violation to provide enough time to see if a violator will comply and, if not, time for the Commission to go to court to seek compliance (and penalties). The two-year deadline is met only by commencement of a case in court, not by merely sending a letter, serving an enforcement order, or other administrative action.

Having held it lacked a valid enforcement order, the Appeals Court also held that the Commission’s decision to impose fines could not be sustained. In reviewing the Commission’s action, the Appeals Court made two noteworthy points.

First, the Appeals Court doubted whether the Commission’s procedures in imposing fines retroactively provided sufficient due process to the developer.  The Court suggested it did not do so where the Commission had not provided public notice or personal notice to the developer that it was considering imposing fines and had not provided an opportunity to be heard before voting to do so.  The Court frowned on the Commission taking thirteen days to notify the developer of its imposition of retroactive fines.

This point reminds commissions to involve alleged violators in enforcement action sooner rather than later to avoid running afoul of due process violations.  Another benefit is that this also helps to resolve enforcement issues sooner and more efficiently.

Secondly and perhaps more importantly, the Appeals Court in a footnote said the Commission did not cite the source of its authority to impose fines, and the developer did not raise it as an issue on appeal.  It is hard to tell from the Court decision itself, the meeting minutes, letters to the developer, and enforcement order what authority the Commission thought it had to impose fines.  

Some commissions believe that they can simply (by vote at a meeting) impose fines specified in a criminal statute, or issue citations or “tickets” (without the required specific authority or following the right procedure), or collect the criminal fines and civil penalties stated in the Act (up to $25,000 per day per violation). Such thinking is incorrect.  

A commission can seek and, if awarded by a court, collect money sanctions for violations of the Act and local wetland bylaw or ordinance, if there is one, in a number of ways.  MACC recommends that a commission ask to have its city or town grant its members and agent the authority to issue non-criminal citations, or “tickets”, under G.L. c. 40, § 21 D for wetland bylaw Protecting Wetlands and Open Space: MACC’s Environmental Handbook for Massachusetts Conservation Commissioners, p. 21.3.7.2 (hereinafter, Environmental Handbook
).

A commission can also prosecute in District Court proven criminal violations of its wetland bylaw.  It can bring its own civil action in Superior Court to enforce the Act and bylaw. Environmental Handbook, p. 21.3.5.4.  

A commission can ask others to assist with enforcement. Environmental Handbook, p. 21.3.6. It can enlist MassDEP to impose administrative penalties as prescribed in MassDEP regulations. It can ask the District Attorney, Attorney General, MassDEP, or Environmental Crimes Strike Force to seek civil penalties or criminal fines in state Superior Court lawsuits or prosecutions.  

A commission always should remember that the primary goal of enforcement is remediation of the harm to the resource area. Environmental Handbook, chapter 21.  Other purposes are to obtain prompt and continued compliance, and, when appropriate, seek penalties, criminal fines, or even imprisonment.

Nathaniel Stevens, Esq. is a Senior Associate with McGregor & Legere, P.C. and Chair of the Arlington Conservation Commission.