- Miyares and Harrington, LLP
A Reminder to Boards and Commissions to Write Your Decisions Carefully
In City of Boston v. Conservation Commission of Quincy, the Supreme Judicial Court held that a superseding order of conditions that DEP issued to the city of Boston preempted the Quincy Conservation Commission’s denial of Boston’s application to reconstruct a bridge to Long Island.
As background, the existing bridge to Long Island was closed for safety reasons and the superstructure was removed, but the piers remained. Boston sought to repair and replace the existing piers, construct a new superstructure, and repair the access road to the bridge. The access road is in Quincy and the proposed work to repair the access road and piers would impact wetlands in Quincy. The Commission denied the application pursuant to both the Wetlands Protection Act (WPA) and Quincy’s local wetlands ordinance. Boston applied to DEP for a superseding order of conditions, which DEP allowed.
It is well established that a superseding order of conditions from DEP cannot preempt a local conservation commission’s decision if the local ordinance or bylaw has provisions that are more stringent than the WPA’s provisions. See, e.g., Hobbs Brook Farm Property Co. Ltd. Partnership v. Conservation Comm’n of Lincoln, 65 Mass. App. Ct. 142, 149 (2005). However, in this case, the SJC emphasized that, in order to avoid preemption by DEP, a conservation commission’s decision must expressly explain how the local wetlands ordinance or bylaw is more stringent than the WPA and indicate that the basis for the decision was in reliance on the more stringent requirements.
Here, in relation to both the piers and access road, the Court found that the Commission’s decision used “vague and general” terminology such as “wetlands interests” and even cited DEP’s regulations issued under the WPA. The SJC noted that the Quincy wetlands ordinance heavily focuses on procedural aspects of the permitting process, which is not enough; local regulations must provide more stringent requirements over substantive factors. The Court therefor concluded that nothing in Quincy’s wetlands ordinance conferred additional authority on the Commission beyond DEP’s authority under the WPA. As such, the SJC concluded that DEP’s superseding order of conditions preempted the Commission’s denial.
In a footnote, the SJC added that, to the extent the Commission argued in its appellate brief that it was concerned about future impacts of the piers, the local wetlands ordinance did not expressly allow for consideration of future impacts and a denial on such basis would not be legally tenable.
The decision provides an important reminder of the need for care when drafting a decision that relies on a local bylaw. The decision must be clearly drafted and expressly provide the reasoning for the result, as well as the supporting bases in the bylaw.