Municipal oversight boards–including Select Boards, Planning Boards, and Zoning Boards of Appeals–are very often governed by strict timelines. What happens if a town fails to meet a deadline? In a case handed down today, the Massachusetts Court of Appeals held that a Conservation Commission that fails to hold a timely hearing can lose its authority to impose conditions on projects to alter wetlands. In Boston Clear Water Company v. Town of Lynnfield, the Court explained the issue:
Prior to undertaking any project that will remove, fill, dredge, or alter wetlands, a person must file a notice of intent
with the local conservation commission, pursuant to G. L. c. 131, § 40. The town bylaw also requires an application to be filed with the commission in such circumstances, but the commission may accept a notice of intent under § 40 as the application. Once a notice of intent or application is filed, both the act and the town bylaw require the commission to conduct a public hearing on the proposed activity within twenty-one days. The act requires the local conservation commission to issue a decision within twenty-one days of its hearing. See G. L. c. 131, § 40. Where it does so, to the extent that the decision relies on the act, it may be appealed to the DEP, which may impose a superseding order of conditions based on its own interpretation of the act. See G. L. c. 131, § 40. To the extent a decision of the local conservation commission rests on bylaw provisions that are more protective than the act, the commission’s decision, as a practical matter, controls.
. . .
Because the commission failed to conduct a public hearing within twenty-one days of receiving BCWC’s notice of intent, and the DEP subsequently issued a superseding order of conditions, the commission forfeited its authority to
regulate BCWC’s project under the town bylaw and the DEP’s superseding order controls.
If you are dealing with an issue relating to municipal oversight boards, DWPM’s Municipal Practice attorneys may be able to help.
Author: Diana Day, Esq.