Parkview Electronics Trust, LLC v. Conservation Commission of Winchester (Lawyers Weekly No. 11-006-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   13-P-276                                        Appeals Court   PARKVIEW ELECTRONICS TRUST, LLC  vs.  CONSERVATION COMMISSION OF WINCHESTER. No. 13-P-276. Middlesex.     November 6, 2014. – January 12, 2016.   Present:  Trainor, Agnes, & Maldonado, JJ. Municipal Corporations, Conservation commission, By-laws and ordinances.  Wetlands Protection Act.  Department of Environmental Protection.  Jurisdiction, Administrative matter.  Zoning, By-law, Wetlands.     Civil action commenced in the Superior Court Department on June 25, 2004.   The case was heard by Mitchell H. Kaplan, J., on motions for judgment on the pleadings.     Jill Brenner Meixel (Vincent J. Pisegna with her) for the plaintiff. Wade M. Welch (Melissa C. Donohoe with him) for the defendant.     AGNES, J.  The Wetlands Protection Act, G. L. c. 131, § 40 (act), sets forth “minimum wetlands protection standards, and local communities are free to impose more stringent requirements.”  Oyster Creek Preservation, Inc. v. Conservation Commn. of Harwich, 449 Mass. 859, 866 (2007).  As we noted in Fafard v. Conservation Commn. of Reading, 41 Mass. App. Ct. 565, 568 (1996), it is not uncommon for a town, under its local by-law, to establish wetland protection standards that are more demanding than those under State law.  In such a case, when a local commission concludes that a project meets the requirements of State law, but does not satisfy the requirements of municipal law, it “introduces no legal dissonance and violates no principle of State preemption.”  Ibid.  In Healer v. Department of Envtl. Protection, 73 Mass. App. Ct. 714, 718 (2009), we explained the requirements that must be met by a local conservation commission that decides to act independent of State law by exercising jurisdiction over wetlands exclusively on the basis of a more stringent local by-law.[1] In the present case, the by-law of the town of Winchester (local by-law) has a more expansive standard for “land subject to flooding” than does the act.[2]  Nevertheless, the plaintiff, Parkview Electronics Trust, LLC (Parkview), contends that an order of resource area delineation (ORAD) issued by the conservation commission of Winchester (commission) is invalid under Healer because it was not based “exclusively” on the more stringent provisions of local law.[3]  In effect, Parkview maintains that Healer requires a local commission to choose between reliance on State law or local law.  For the reasons that follow, we reject this reading of Healer and affirm the judgment. The essential facts are […]

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