The Massachusetts Appeals Court recently held that a Superseding Order of Conditions issued by the MassDEP under the Wetlands Protection Act (WPA) does not divest a municipal Conservation Commission from all authority to regulate activity on the land subject to the Superseding Order of Conditions.  Cave Corporation v. Conservation Commission of Attleboro, 91 Mass. App. Ct. 767 (2017).  Specifically, where a local Conservation Commission issues an Order of Conditions under the authority of a by-law or ordinance that is more stringent than the WPA, the terms of the Conservation Commission’s Order of Conditions remain enforceable even if the MassDEP subsequently issues, in relation to a different Notice of Intent, a Superseding Order of Conditions regulating work on the same land.

In Cave Corporation, Cave filed a Notice of Intent with the Conservation Commission of Attleboro in connection to the proposed construction of a subdivision development.  The Notice of Intent proposed the construction of a new roadway and water main connections to serve certain lots but did not propose any work on the individual lots within the subdivision.  In November 2014, the Commission approved the roadway project and issued an Order of Conditions which, among other conditions, prohibited any disturbance within 125 feet of two vernal pools located to the south of the proposed roadway.

While the Notice of Intent for the roadway construction was under review by the Commission, but before the Commission’s approval, Cave filed additional Notices of Intent proposing construction work on specific lots within the subdivision.  One of these included construction of a driveway that cut through a section of the 125-foot “no-touch” area near a vernal pool.  The Commission failed to take action on this Notice of Intent within the 21-day period allowed by M.G.L. c. 131, § 40; therefore, Cave sought a Superseding Order of Conditions from the MassDEP, which MassDEP ultimately issued.  However, because the Commission’s original Order effectively precluded the driveway’s construction, Cave filed suit seeking a declaration that MassDEP’s Superseding Order, and not the Commission’s Order, applied to the proposed driveway construction.   

The Superior Court held that while MassDEP’s Superseding Order governed the performance of the work described in the Notice of Intent for the driveway construction, the Commission’s Order remained enforceable.  Cave appealed, arguing that (1) the Commission’s ordinance was no more stringent than the WPA; (2) the Commission lost authority to impose conditions on the driveway construction when it failed to timely take action on the Notice of Intent; and (3) the evidence in the record did not support the Commission’s imposition of the condition relating to the 125-ft. vernal pool protection area.

The Massachusetts Appeals Court rejected each of Cave’s arguments.  First, the Appeals Court affirmed the Superior Court’s conclusion that Attleboro’s ordinance imposes more stringent controls than those required under the WPA, and, therefore, the Commission’s Order was not preempted by the MassDEP’s Superseding Order.  Second, the Appeals Court determined that it would be “anomalous” for the MassDEP’s Superseding Order to preempt the conditions of a previously and validly issued Order of Conditions regulating the same land.  Third, the Appeals Court held that Attleboro’s ordinance required the Commission to consider the cumulative effects of the proposed subdivision and that there was evidence in the record that any disturbance of the 125-foot area near the vernal pools would be detrimental to the interests protected by the ordinance. 

In summary, the Massachusetts Appeals Court reasoned that project developers may seek relief from the MassDEP when a local Conservation Commission fails to timely act on a Notice of Intent, and the MassDEP’s Superseding Order of Conditions for the project would control the performance of the work on the subject land.  However, if the same land is also the subject of a previously issued Order of Conditions, that Order remains enforceable.