SJC Determines Conservation Commission’s Failure to Timely File Produces a Null Decision but not Constructive Approval

Beveridge & Diamond, P.C. - Massachusetts Environmental & Land Use Alert, November 2007

The Supreme Judicial Court recently held that a conservation commission decision denying an order of conditions under a local wetlands bylaw has no effect where the commission failed to act within 21 days as required by both state and local procedure rules.  That failure, however, did not result in the constructive approval of the notice of intent.  In Oyster Creek Preservation, Inc. v. Conservation Commission of Harwich, SJC-09886 (Botsford, J., October 23, 2007), the Court found that while both the Wetlands Protection Act, G.L. c. 131, § 40 (the “Act”) and local bylaw at issue required the conservation commission to issue its decision within 21 days of the close of the public hearing, the Act does not provide for a constructive approval mechanism.  Instead, where the conservation commission failed to act timely, the superseding order of conditions issued by the Department of Environmental Protection (“DEP”) controlled. 

This case arose out of a dredging proposal to allow improved boat access in the Town of Harwich.  The applicant, Oyster Creek Preservation, Inc. (“OCP”), filed a notice of intent as required under by the Act and local bylaw.  At the close of the fourth public hearing on the application, the conservation commission voted to close the public hearing.  After the hearing closed, however, the conservation commission received correspondence in opposition to the project from an abutter.  At its next meeting, the conservation commission voted to reopen the hearing on OCP’s notice of intent, received the evidence in opposition, voted to again close the public hearing, and then voted to deny the project. 

The conservation commission issued its decision within 21 days of the second vote to close the public hearing — not within 21 days of its first vote to close the hearing.  The Court ruled the public hearing was closed after the first vote where the local bylaw contained no provision for reopening a public hearing.  Therefore, the 21-day limitations period expired prior to the conservation commission issuing its decision.

The Court concluded that although the decision was not issued in a timely manner, there was no constructive grant of OCP’s notice of intent because such a mechanism is not provided by the Act.  Rather, the Act dictates that when a conservation commission fails to act, an applicant should seek relief by appealing to DEP for a superseding order, which controls.  Any late decision filed by the commission simply has no effect. The superseding order obtained by the applicant controlled.

For further information, please contact Brian Levey at blevey@bdlaw.com, Marc Goldstein at mgoldstein@bdlaw.com, or Krista Hawley at khawley@bdlaw.com.