Posts tagged "Conservation"

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NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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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Posted by Massachusetts Legal Resources - July 14, 2017 at 7:19 pm

Categories: News   Tags: , , , , , , ,

Aqua King Fishery, LLC v. Conservation Commission of Provincetown (Lawyers Weekly No. 11-081-17)

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-1366                                        Appeals Court   AQUA KING FISHERY, LLC  vs.  CONSERVATION COMMISSION OF PROVINCETOWN.     No. 16-P-1366.   Barnstable.     April 13, 2017. – June 16, 2017.   Present:  Kafker, C.J., Grainger, & Kinder, JJ.     Shellfish.  Municipal Corporations, By-laws and ordinances, Conservation commission, Shellfish.  Wetlands Protection Act.  Fisheries.       Civil action commenced in the Superior Court Department on February 13, 2015.   Motions for judgment on the pleadings and a special motion to dismiss counterclaims were heard by Gary A Nickerson, J.     Stephen M. Ouellette for the plaintiff. Gregg J. Corbo for the defendant.     GRAINGER, J.  Aqua King Fishery, LLC (Aqua King), the owner of the commercial fishing vessel Sentinel, appeals from a judgment of the Superior Court entered pursuant to an order denying, in part, its motion for judgment on the pleadings.  At issue is Aqua King’s failure to obtain a permit from the conservation commission of Provincetown (commission) for the use of hydraulic dredge fishing gear in its commercial sea clam fishing operation on areas of the ocean floor near Provincetown’s shore.  Aqua King contends that the activity at issue is controlled by the Division of Marine Fisheries (DMF) and is thus exempt from municipal and other State regulations.  Aqua King consequently sought to reverse the enforcement order issued by the commission.[1]  Aqua King also appeals from the judge’s partial allowance of the commission’s cross motion for judgment on the pleadings with respect to its counterclaim  based on an asserted violation of § 40 of the Wetlands Protection Act, G. L. c. 131 (WPA).[2] In its cross appeal, the commission, Provincetown’s local authority enforcing the WPA and regulations of the Department of Environmental Protection (DEP), appeals from the judge’s rulings that (1) denied its motion for judgment on the pleadings insofar as he concluded that article 8 of the Provincetown wetlands by-law was unenforceable, and (2) denied its request for imposition of a $ 25,000 fine, the maximum penalty allowed under the WPA. We address the judge’s rulings in the context of the limited scope of judicial review applicable to an agency decision challenged, as is the case here, by a petition for certiorari pursuant to G. L. c. 249, § 4.[3]  Judicial review of an agency decision in the nature of certiorari “allows a court to ‘correct only a substantial error of law, […]

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Posted by Massachusetts Legal Resources - June 16, 2017 at 3:05 pm

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Nelson v. Conservation Commission of Wayland (Lawyers Weekly No. 11-113-16)

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   15-P-1437                                       Appeals Court   KENNETH TODD NELSON  vs.  CONSERVATION COMMISSION OF WAYLAND.     No. 15-P-1437.   Middlesex.     May 16, 2016. – August 31, 2016.   Present:  Rubin, Milkey, & Neyman, JJ.     Zoning, By-law, Wetlands.  Municipal Corporations, Conservation commission, By-laws and ordinances.  Practice, Civil, Action in nature of certiorari.     Civil action commenced in the Superior Court Department on December 3, 2014.   The case was heard by Peter B. Krupp, J., on a motion for judgment on the pleadings.     George F. Hailer for the plaintiff. Mark J. Lanza for the defendant.     RUBIN, J.  The plaintiff[1] appeals from a judgment of the Superior Court affirming a determination by the conservation commission of Wayland (commission) that there are wetlands on his property.[2]  That determination was made under Wayland’s wetlands and water resources protection by-law.  See chapter 194 of the Wayland town code (2015) (by-law).  Under the by-law’s definition, wetlands are protected more broadly than they are under the Wetlands Protection Act and the accompanying regulations.  See § 194-1 of the by-law (“The purpose of this chapter is to provide a greater degree of protection of wetlands, buffer zones, and related water resources, than the  protection of these resource areas provided under [G. L.] c. 131, § 40, and the Wetlands Regulations promulgated thereunder by the Massachusetts Department of Environmental Protection”).  Compare § 194-2 of the by-law, with G. L. c. 131, § 40, and 310 Code Mass. Regs. §§ 10.01 et seq. (2014). The plaintiff agrees that the town has the authority to provide such broader protection, but argues that the commission’s decision here was not supported by substantial evidence.  The plaintiff brought an action in the nature of certiorari (G. L. c. 249, § 4) in the Superior Court.  The plaintiff moved for judgment on the pleadings pursuant to Mass.R.Civ.P. 12(c), 365 Mass. 754 (1974).  The judge denied the motion and upheld the commission’s decision.  This appeal followed. The commission made two findings supporting its conclusion that the property at issue contains wetlands within the meaning of the by-law.  These findings, in full, provide that “[p]lants including [r]ed [m]aple, American [e]lm, skunk cabbage, and other hydrophilic vegetation comprise at least 50% of the vegetational community.”  Further, “[r]unoff water from surface drainage frequently collects above the soil surface.” Section 194-2 of the by-law defines “wetland” as “[w]et meadows, marshes, swamps, bogs, and other areas where groundwater, flowing […]

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Posted by Massachusetts Legal Resources - August 31, 2016 at 8:56 pm

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Murray, et al. v. Department of Conservation and Recreation (Lawyers Weekly No. 10-115-16)

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   SJC-12002   ELAINE K. MURRAY & another[1]  vs.  DEPARTMENT OF CONSERVATION AND RECREATION.       Suffolk.     April 5, 2016. – August 4, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[2]     Land Court, Jurisdiction.  Jurisdiction, Land Court.  Railroad.  Easement.  Real Property, Easement.       Civil action commenced in the Land Court Department on September 19, 2011.   The case was heard by Gordon H. Piper, J., on motions for summary judgment.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     David A. Murray (Peter M. Schilling with him) for the plaintiffs. Frances S. Cohen, Assistant Attorney General, for the defendant.          SPINA, J.  The plaintiffs appeal from a judgment of the Land Court dismissing without prejudice their action to quiet title under G. L. c. 240, §§ 6-10, for lack of subject matter jurisdiction.[3]  The thrust of their action is that a railroad easement formerly owned by the Pennsylvania Central Transportation Co. (Penn Central) across portions of their lands was abandoned when the United States Railway Association (USRA), acting pursuant to the Regional Rail Reorganization Act of 1973, devised a final system plan which designated certain profitable rail lines that were to be transferred from eight bankrupt regional rail carriers in the northeast and the midwest regions of the country to the Consolidated Rail Corporation (Conrail), but not the rail line over the easement that encumbered their lands.  The plaintiffs contended that the railroad easement over their lands was abandoned by virtue of its nondesignation for transfer to Conrail in the final system plan.  The judge in the Land Court disagreed and concluded that a certificate of abandonment from the Federal Surface Transportation Board (STB) was necessary before a State court could exercise jurisdiction to determine State law claims regarding easements, and that STB’s jurisdiction was both exclusive and primary.  The plaintiffs appealed, and we transferred the case to this court on our own motion.  We affirm the judgment of the Land Court. Facts.  The following facts are undisputed.  Boston and Worcester Railroad (B&W) was created in 1831.  In 1847 it filed a “Plan of Location of the Newton Railroad” with the Middlesex County commissioners.  The easement over the plaintiffs’ properties appears as part of the proposed railroad line depicted on the […]

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Posted by Massachusetts Legal Resources - August 4, 2016 at 2:12 pm

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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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Posted by Massachusetts Legal Resources - January 12, 2016 at 6:20 pm

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