Heard: April 6, 2017.
action commenced in the Superior Court Department on January
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.
Blake, & Lemire, JJ.
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. A judge of the Superior Court disagreed,
and we affirm.
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
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."
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.
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 ...