Cave Corporation v. Conservation Commission of Attleboro (Lawyers Weekly No. 11-088-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   16-P-944                                        Appeals Court   CAVE CORPORATION  vs.  CONSERVATION COMMISSION OF ATTLEBORO.     No. 16-P-944.   Plymouth.     April 6, 2017. – July 14, 2017.   Present:  Green, Blake, & Lemire, JJ.     Municipal Corporations, Conservation commission, By-laws and ordinances.  Wetlands Protection Act.       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, 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, […]

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