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Cave Corp. v. Conservation Commission of Attleboro

Appeals Court of Massachusetts, Plymouth

July 14, 2017

CAVE CORPORATION
v.
CONSERVATION COMMISSION OF ATTLEBORO.

          Heard: April 6, 2017.

         Civil action commenced in the Superior Court Department on January 9, 2015.

         The case was heard by Richard J. Chin, J., on a motion for judgment on the pleadings, and a motion for clarification or reconsideration was considered by him.

          Matthew Watsky for the plaintiff.

          Rebekah Lacey for the defendant.

          Green, Blake, & Lemire, JJ.

          GREEN, J.

          When a municipal conservation commission fails to act timely on a notice of intent for work affecting wetlands, the applicant is entitled to seek relief from the Department of Environmental Protection (DEP). G. L. c. 131, § 40. If, on the applicant's request for relief, the DEP thereafter issues a superseding order of conditions authorizing the work described in the notice of intent, the superseding order controls the work under the Wetlands Protection Act (act), G. L. c. 131, § 40, notwithstanding any more restrictive provisions of an otherwise applicable municipal wetlands ordinance or by-law. See Oyster Creek Preservation, Inc. v. Conservation Commn. of Harwich, 449 Mass. 859, 865 (2007). Cave Corporation (Cave), the plaintiff in the present case, contends that such a superseding order operated to divest the conservation commission of Attleboro (commission) of all authority to regulate activity on the land subject to the superseding order, even if the same land is also the subject of a separate notice of intent on which the commission acted timely.[1] A judge of the Superior Court disagreed, and we affirm.

         Background.

          The Attleboro city council adopted the Attleboro wetlands protection ordinance (ordinance) on October 2, 2001, and the commission, acting pursuant to authority delegated by the ordinance, promulgated rules and regulations thereafter. Section 18-1.1 of the ordinance recites as its purpose:

"to protect the wetlands, water resources, and adjoining land areas in Attleboro by controlling activities deemed by the Conservation Commission likely to have a significant or cumulative effect upon resource area values, including but not limited to the following: public or private water supply, groundwater, flood control, erosion and sedimentation control, storm damage prevention including coastal storm flowage, water quality, water pollution control, fisheries, wildlife habitat, rare species habitat including rare plant species, agriculture, aquaculture, and recreation values, deemed important to the community (collectively, the 'resource areas or values protected by this ordinance')."

         Among other provisions, § 18-1.8 of the ordinance imposes a requirement that any application for a permit to perform work in any area potentially affecting wetlands delineate and maintain "a 25-foot wide continuous and undisturbed Wetlands Protection Zone measured from and parallel to the [wetlands] resource area boundary."[2]

         On December 18, 2013, Cave filed a notice of intent with the commission proposing construction of a roadway, drainage, infrastructure, and utilities associated with a subdivision development. The proposed project included 175 linear feet of new roadway, with connections to a water main to serve seven new lots, but did not propose any work on the individual lots related to the construction of houses on the lots.

          The notice of intent acknowledged the presence of vegetated wetlands along the westerly side of the project site and a twenty-five-foot wetlands protection zone along the boundary of those vegetated wetlands; it also recognized two vernal pools to the south of the proposed roadway, a 125-foot protected area surrounding each of the vernal ...


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