SUMMARY OF 2010 WETLAND LEGAL CASES & ISSUES PRESENTED BY GLENN A. WOOD, ESQ.

Transcription

1 SUMMARY OF 2010 WETLAND LEGAL CASES & ISSUES PRESENTED BY GLENN A. WOOD, ESQ ASSOCIATION OF MASSACHUSETTS WETLANDS SCIENTISTS ANNUAL MEETING NOVEMBER 12, 2010 RUBIN AND RUDMAN LLP 50 ROWES WHARF BOSTON, MA (direct)

2 Permit Extension Act, M.G.L. c.240, 173 Act Relative to Economic Development and Reorganization enacted in August, 2010 comprehensive legislation. Automatic extension of expiration of permits in effect at any time between August 15, 2008-August 15, 2010 for 2 additional years no issuing agency review needed. Includes any permit, certificate, order, excluding enforcement orders, license, determination variance, waiver, building permit from any municipal, regional or state governmental entity concerning the use or development of real property. Excludes Chapter 40B comprehensive permits and all Federal permits; does not include pre-development activities such as Chapter 21E hazardous waste remediation. 2

3 Permit Extension Act Mass Housing and Economic Development issued a guidance document this week - DEP may issue supplemental guidance. Permits that lapsed during 2 year window are revived under PEA. Timely request to extend OOC/SOC/Final Order remains in discretion of issuing authority (local Con Comm/DEP). Can lapsed and now revived OOC/SOC permits be extended under WPA? 3

4 Permit Extension Act Issuing agencies not required to issue written notices of extension to approval holders. Permits allowed in 2 year window but which remain under judicial/administrative appeal not available for extension, until permit is live. If ultimately approved, permits are extended from date of permit approval. Permits cannot be revoked/suspended by issuing agency to avoid 2 year extension under PEA. Issuing agencies cannot amend/modify/condition permits due solely to automatic extension. 4

5 Permit Extension Act All permits are automatically extended, even if the project is in noncompliance Con Comm/DEP retains enforcement powers. All extended permits are eligible for extension under the PEA 3 year extension under WPA. With 40B projects, all associated non-40b permits are extended (e.g. building permits, wastewater, wetlands). Most significant issues raised under Subdivision Control Law - involving construction conditions, covenants, automatic recession provisions, zoning freezes, Preliminary Subdivision approvals. 5

6 Federal/Mass Wetlands Delineation/ Corps of Engineers Wetland Delineation Manual amended in 2009 by Interim Regional Supplement: Northcentral/Northeast Region. Appendix C to Supplement includes new, required COE Wetland Delineation Data Form. Mass DEP continues to use 1995 Handbook Delineating BVW under the WPA. 6

7 Federal/Mass Wetlands Delineation DEP will accept delineations utilizing methodology/forms, in COE Supplement for WPA filings. DEP two factor approach vegetation (50%) and hydrology (saturated/inundated conditions) will control under WPA in limited instances of differences with Supplement. For Section 401 Water Quality Certification, DEP advises use of Federal methodology. 7

8 Wetlands Alteration 5,000 s.f. or Bust: In the Matter of Marrette & Sons, Docket No. WET (2010) DEP SOC approved single family house/final lot in subdivision. Petitioners argued DEP precluded from allowing additional BVW fill; already over 5,000 s.f. from original 18 lot project (306 s.f. driveway crossings-lapsed OOC). Petitioners claimed over 10,000 s.f. alterations allowed since 1998 threshold applies to land in common ownership. DEP could view minor BVW fill as a Limited Project driveway. 8

9 In the Matter of Marrette & Sons, Inc. DEP Magistrate: 5,000 s.f. wetlands alteration limitation applies to each OOC 310 CMR 10.55(4)(a) may allow alteration/discretionary standard. Considerations: Magnitude of alteration, significance of project site, avoidance/minimization of impact, mitigation measures. Phased development through sequential NOI applications allowed under WPA. Recommended Final Decision upheld DEP SOC awaiting Final Decision. 9

10 To Bank or Not to Bank On v. Over: Ten Local Citizens Group v. New England Wind, LLC, 457 Mass. 222 (2010) Proponent of 20 wind turbines proposed 2 gravel roads with 12 intermittent stream crossings in Florida, Mass. 10 streams would be bridged with open bottom culverts no physical work on Inland Bank. Con Comm and DEP approved the projects; citizens appealed. DEP Magistrate, in 78 page Recommended Final Decision, determined that most Bank work was improperly reviewed needed wildlife habitat evaluation. Open bottom culverts would block sunlight, kill plants with roots in Bank/an alteration. 10

11 New England Wind, LLC DEP Commissioner rejected Magistrate s decision, as footings of culverts in buffer zone, not Inland Bank. Commissioner reviewed project in context of existing DEP stream crossing policies, which sought use of open bottom culverts. Superior Court judge, on appeal, affirmed the Final Decision. SJC deferred to DEP Commissioner s interpretation of regulations as conclusive at agency level. 310 CRM 10.54(4)(a): work on the Bank means physical alteration accord words their usual and ordinary meaning. 11

12 Cement Streams DEP Style: In the Matter of Pyramid Mall of Hadley, OADR Docket No (2010) Jurisdictional issues regarding large historic stormwater detention basins at Hampshire Mall, Hadley previously approved/enlarged/maintained. DEP Magistrate held that basins did not contain vegetated wetlands that border on a stream. Basins contain wetlands (cattails, loosestrife) function as stormwater management detention basins. Magistrate determined culverted outlet not a stream/no hydraulic gradient with sump no direct flow. 12

13 In the Matter of Pyramid Mall DEP Commissioner reversed/determined Eastern Basin bordered a stream definitive channel in the ground due to a hydraulic gradient. Stream may flow through culvert/under a bridge; can be intermittent flow. Eastern Basin water flows out basin through control structure to 24 inch pipe, across berm into 110 foot outflow channel in ground, to a drainage ditch that flows into a pond. 13

14 In the Matter of Pyramid Mall Streams can begin in culvert that borders /touches the BVW under express definition of steam manmade or natural. Hydraulic gradient existed when the water was flowing the cause of the water movement. Western Basin outflow pipe discharges directly into municipal subsurface drainage system not a stream. 14

15 40B Lives: What is a Local Concern?: Holliston ZBA v. Housing Appeals Committee, , (Mass Land Ct. 2010) Land Court affirmed HAC approval of 200 unit Chapter 40B project. Portion of property was former tire/construction debris disposal site, with residual TCE groundwater contamination. Property has significant DEP monetary lien for past State-funded remediation. ZBA claimed remaining environmental issues as viable local concerns. Land Court found local concerns did not outweigh regional need for affordable housing under 40B review standard. DEP will adequately address environmental issues under Chapter 21E program. Wetlands issues under WPA would be the same. 15

16 General Background/Superior Court Wetlands Cases Appeals of projects under Home Rule Wetlands Bylaws filed in Superior Court or, in limited cases, Land Court. Review by Court is on Administrative Record generated in public hearing process. Appeals are brought under M.G.L.c. 249, 4, Certiorari statute. Court s review limited to corrections, substantial errors of law that affect material rights and are apparent on the Record. 16

17 General Background/Superior Court Wetlands Cases Arbitrary and capricious and substantial evidence standards applied based on nature of action. A&C appropriate when action alleges that commission applied improper criteria in reaching decision. SE standard utilized when action alleges evidence cannot support Commission s decision. 17

18 Bylaw Review - The Local Gaunlet: Conroy v. Lexington Conservation Commission, 73 Mass. App. Ct. 552 (2009) Applicant sought approval for single family residence on lot bisected by an intermittent stream. Local Bylaw regulated BZs and established presumption that work would adversely affect wetlands unless clear/convincing evidence presented to obtain waiver. Bylaw placed burden of proof by preponderance of credible evidence that work proposed will not cause significant individual or cumulative harm effects to interests sought to be protected. 18

19 Conroy v. Lexington Con Comm NOI denied, and on appeal, approved by DEP under WPA. Applicant refiled solely under Bylaw to Con Comm. Denied again burden not met. Appeals Court determined that Bylaw Regulation review standard ( clear/convincing evidence ) was higher/inconsistent with Bylaw standard ( preponderance of evidence ), meaning more probable than not. Case remanded to Con Comm for review under Bylaw lower standard. 19

20 Oyster Creek Prodigy: Watch the Calendar: Regan v. Falmouth Conservation Commission, 77 Mass. App. Ct. 485 (2010) Waterfront property owner denied a pier/float under WPA and local Bylaw (Variance/hardship needed) based on local shellfish regulations. Con Comm issued denial one day late under WPA statutory deadline 21 days to issue OOC from close of hearing. Appeals to both DEP and Superior Court, then parties voluntarily stayed litigation and revised plan remanded to Con Comm under Bylaw only. Commission denied revised plan and issued second timely denial under Bylaw. DEP approved revised project under WPA. 20

21 Regan v. Falmouth Con Comm Superior Court upheld FCC s second denial Plaintiff waived procedural protection of Oyster Creek Preservation, Inc. v. Harwich Con Comm by voluntary remand. Appeals Court ruled that under Oyster Creek, Commission lost its right to enforce provisions of Bylaw, therefore the DEP SOC controls. Timing provisions are obligatory. Appeals Court found that plaintiff could not have anticipated impact of later Oyster Creek on remand decision. Prudent decision to remand case should not prohibit ability to take advantage of statutory protections/dep SOC override. 21

22 Regan v. Falmouth Con Comm Dissenting opinion: Remand from Superior Court recreated Con Comm Bylaw jurisdiction second denial was timely issued. No abuse of discretion /second denial based upon substantial evidence. Variance standard required demonstration of hardship. Colonial times rights to construct piers do not translate to present day legal rights. No substantial economic loss shown under hardship standard by Plaintiff. 22

23 2010 Mass Taking Case: Not: Blair v. Mass Dept. of Conservation and Recreation, 457 Mass. 634 (2010) Lakefront property owner sought Variance from Mass. Watershed Management Act for lawn/beach increase, tree removal within 200 foot buffer to drinking water supply. Mass. Supreme Judicial Court ruled denial of Variance not a regulatory taking. Plaintiff argued that regulatory impact analysis should only be on affected property (totally unusable without Variance). SJC held that the relevant parcel is the parcel as a whole. No regulatory taking if economic benefit is derived from property in its entirety. 23

24 Bring Lawyers, Sand and Money: Dr. Warren Woods v. Brimm et al, 27 Mass L. Rptr. No. 20, 389 (2010) Superior Court action brought claiming coastal rock revetments damaged Plaintiff s downdrift oceanfront property in Wellfleet. Claims include intentional tort, failure to conduct beach nourishment, negligence, private nuisance, declaratory judgment. Defendants property owners then brought cross-claims against each other/engineering firm for contribution/indemnification. Historic revetments constructed on eroding coastal bank Plaintiff claims property receives much less sand deposition and thus increased erosion from storm events. 24

25 Woods v. Brimm, et al All revetments had WPA Orders and if applicable Chapter 91 Waterways Licenses, but some Orders did not impose any sand renourishment conditions. Defendants brought Summary Judgment Motion to dismiss action no genuine issue as to any material fact, and where the moving party is entitled to judgment as a matter of law. Defendants claimed Statute of Limitations defense Superior Court judge determined trespass/private nuisance claims based on continuous tortious/wrongful conduct/damage. Plaintiff cannot sue engineer under 6 year State of Repose damages due to deficient/negligent design of an improvement to property. 25

26 Woods v. Brimm, et al Lummis v. Lilly, 385 Mass. 41 (1982) - Common law doctrine of reasonable use of property applies to coastal littoral owners, in addition to riparian owners. Judge held that Plaintiff s experts Summary Judgment affidavits supported assertion that littoral owners have duty of reasonable care to downdrift owners failure to advance shoreline renourishment breached duty and caused erosion. Case advancing under private nuisance/trespass/negligence (maintenance) genuine issues of material fact for jury to decide at trial. 26