A conservation commission may want to enforce the Wetlands Protection Act (hereinafter, the “Act”) and its wetland bylaw or ordinance (hereinafter, “bylaw”) against a project that was built a while ago without commission approval. The impetus might be a tip from a resident or new observation by a commissioner or agent. A recent decision of the Massachusetts Appeals Court provides important guidance and useful reminders.
The Appeals Court in Parkview Electronics Trust, LLC v. Conservation Commission of Winchester, 88 Mass. App. Ct. 833 (2016), reinforced the well-established principle that a local conservation commission can have regulatory authority under a wetlands bylaw or ordinance (hereinafter “bylaw”) that is independent from, and in addition to, its authority under the state Wetlands Protection Act (“Act”).
Boston Children’s Hospital (BCH) has had a world-class healing garden. It was built and endowed over 60 years ago by popular author Olive Higgins Prouty of Brookline, MA in memory of her two daughters who died in childhood.
An annual National CLE Conference hosted by the Colorado Bar Association CLE program brings together hundreds of attorneys from all over the US for current developments and professional networking. Mr. McGregor has presented and co-chaired the environmental law seminar at the conference, most recently January 8-10, 2017 at Aspen Snowmass.
This list of important facts regarding the Boston Children's Hospital DofN Application was prepared by the Anne Gamble Ten Taxpayer group and The Friends of Prouty Garden.
On August 10, 2016 Governor Baker signed HB 4569 into law. It is titled, “An Act Relative to Job Creation and Workforce Development,” and appears as Chapter 219 of the Acts of 2016. Despite declining to approve two sections of the Bill, Governor Baker approved Section 48, which will have confusing implications for environmental regulation in municipalities, and likely lead to a slew of doubt, disputes, and even lawsuits.
Our firm is active with the Massachusetts Municipal Lawyers Association (MMLA). We have been honored to present at the MMLA annual meeting a review of the year’s developments in environmental law and related land use, energy law, and litigation.
On August 9, 2016 Governor Baker approved HB 4565, “An Act Modernizing Municipal Finance and Government,” signing into law what is now Chapter 218 of the Acts of 2016. This newly enacted legislation tweaks, modifies, and streamlines several existing statutes governing cities and towns.
Following a two day trial, Hon. Robert Foster of the Land Court recently rejected an abutter’s claim to the portion of a Falmouth family’s lot where they plan to build an addition to their seasonal cottage. The Court found that the presumption of land ownership to low water, derived by the Colonial Ordinances, did not apply. The Court invoked the doctrine of adverse possession by color of title to find for the Falmouth family on an alternative claim.
On three days in June, the U.S. Supreme Court decided cases making new law on signs and free speech, fair housing litigation, and air pollution regulation, and. We look at them in turn, in brief.
Environmental law at the local level is surprisingly well established and comprehensive. It deals with the universe of environmental problems, needs and opportunities that have come before Town Meetings and City Councils over the years, leading to legislation enacted in the form of bylaws and ordinances. In addition, innumerable municipal boards and officials have long list of policies, rules and regulations they have promulgated within their statutory or charter powers. Then there are property law principles and constitutional provisions imposing limits or conferring rights of an environmental nature. In summary, these local environmental laws and principles can range from “A to Z” (namely Air Pollution to Zoning). Every community has the basics on the books. Most have tailored them to their needs. Some are being artful and creative. None have taken full advantage of the legal powers that are available to protect the environment.
The Appeals Court in Parkview Electronics Trust, LLC v. Conservation Commission of Winchester, 88 Mass. App. Ct. 833 (2016), recently rejected a challenge to the well-established principle that a conservation commission can have regulatory authority under a local wetlands bylaw or ordinance that is independent from, and in addition to, its authority under the state Wetlands Protection Act (“Act”). This is so as long as a commission relies on a provision of its local wetlands law that is more stringent than the Act and complies with the timeframes set forth in the Act. Otherwise a commission risks having its decisions under both state and local laws superseded by MassDEP in an appeal under the Act.
The stated purpose of the MassDEP Regulatory Reform Initiative is to streamline the permitting process and maintain MassDEP's high standards of environmental protection. Following a review over two years, all MassDEP Bureaus changes to take effect soon, if not already.
In an important victory for the state’s vulnerable wildlife species, the Massachusetts Supreme Judicial Court (“SJC”) recently upheld the Massachusetts Endangered Species Act (“MESA”) regulations in all respects. The case, known as Pepin v. Division of Fisheries and Wildlife, 467 Mass. 210 (2014), challenged the procedural and substantive jurisdiction implemented by the state Division of Fisheries and Wildlife (“DFW”) under MESA.
Citizen groups may sue project proponents using the so-called Citizen Suit Statute, G.L. c. 214, §7A, to challenge decisions allowing projects that would allegedly cause damage to the environment in violation of the Massachusetts Environmental Policy Act ("MEPA").
The Massachusetts Appeals Court’s decision in Tremont Redevelopment Corporation v. Conservation Commission of Westwood, 73 Mass. App. Ct. 1127 (2009), provides guidance for municipalities concerned about the limits of Home Rule for local wetland protection ordinances or bylaws. The Court applied the Home Rule Doctrine in light of several prior decisions1 and ruled that the Westwood Conservation Commission’s disapproval of a project under its Wetlands Protection Bylaw was invalid.2
An open-ended waiver of the state Wetlands Protection Act's twenty-one (21) day deadline for issuing a decision after the close of a public hearing is invalid when required as part of a Notice of Intent application package.
The Massachusetts Appeals Court recently decided the question of when the clock begins running to file a court appeal for certiorari review under M.G.L. ch. 249, §4, specifically against a conservation commission that had issued an enforcement order.
The state Appeals Court recently ruled that a Conservation Commission cannot deny work without explicit and objective reasons why the Commission is rejecting the applicant's uncontested evidence. In Pollard v. Conservation Commission of Norfolk, the Massachusetts Appeals Court (the "Appeals Court") said that the Commission, in disbelieving or rejecting uncontradicted evidence, cannot simply say that the applicants' evidence was "not credible" and that the applicants "failed to sustain their burden."
Calculate When Your Permits Expire If Issued Before or During the Covid Emergency: 462 Extra Days?
What the Lifting of the COVID-19 State of Emergency in Massachusetts Will Mean for Boards and Commissions
Legislature Revises Local and Regional Permitting Deadlines as COVID-19 Pandemic Continues
MassDEP and EPA Guidance on Waste Site Cleanups and Compliance during COVID-19 Emergency: Some Flexibility but Important Deadlines and On-Site Obligations Still Apply
Across the spectrum of environmental law we offer advice and representation
with practical, results-oriented lawyering.