The Conservation Commission That Couldn’t Shoot Straight

It’s easy enough to complain about EPA; I’ve even been known to do it on occasion. However, in Massachusetts, we have a different problem. We let local municipalities regulate all sorts of matters in which they have no expertise.  We even delegate to municipalities the implementation of our state Wetlands Protection Act. That’s how we end up with cases such as Lippman v. Conservation Commission of HopkintonLippman didn’t make any new law, but it does illustrate what havoc local boards can wreak. 

The Lippmans wanted to build a single family house on land subject to the WPA. They filed the requisite notice of intent. The Conservation Commission held several hearings. On June 16, 2008, there was a motion to close the hearing and issue an order of conditions. It failed. On June 30, there was motion to deny the order. That too failed. The chair announced that the commission was deadlocked and would not decide. On July 14, the Lippmans received a formal letter announcing the deadlock and notifying them of their appeal rights. On July 28, the commission decided to deny the order, but failed to issue any decision

On July 30, 2008, the Lippmans requested a superseding order of conditions from DEP, which is the appropriate course when the local commission fails to act. On September 11, the commission “purported” – the court’s word – to issue a formal denial. Notwithstanding this purported denial, DEP issued a superseding order on September 22, 2008.

Faced with the commission’s denial and DEP’s superseding order, the Lippmans’ sought a declaratory judgment that the commission action was void and the superseding order controlled. Although the Lipmman lost in Superior Court, the Appeals Court reversed:

Where a conservation commission does not issue its decision within the required twenty-one day period and the applicant appeals to the DEP, it is the DEP’s superseding order that controls; any late-issued decision of the commission is without effect.

Why does this fairly trivial case matter? For one thing, it’s worth remembering that the Lippmans sought authority to build one single-family house more than three years ago. The commission failed to act more than three years ago. Only now has a court decided in their favor. Indeed, an appeal was filed concerning the superseding order. That appeal was stayed pending the court decision, but now will have to be heard before the Lippmans can actually build.

My firm anecdotal view is that this case is emblematic of the types of results one gets from local boards. However much one may complain about EPA, its decisions are more comprehensible, more predictable, and more transparent than one often gets from local boards. 

Three or four years to get approval to build one single-family house? Cases such as this are recruitment ads for the Tea Party.

2 thoughts on “The Conservation Commission That Couldn’t Shoot Straight

  1. I’m interested in the “decision by indecision” tactic, which I’ve seen at the federal level as well (EPA, specifically). Here, at least, there seems to be a process in place for dealing with the failure to respond (DEP issues a superseding order). We have encountered an instance where a formal denial from the agency is required before the formal appeals process can be set in motion – so the agency’s continued delay in issuing a response (yay or nay) prevents us from moving forward. There, I suppose the only higher power left is the courts.
    Cheers,
    AK

  2. After purchasing our home from a developer and living in our house for 3 years we found the Conservation Commission in Ayer failed to provide the developer with the Orders of Conditions on our house which were never filed with the Registry of Deeds. The Conservation Commission required the builder to record the Orders of Condition on our home even though the developer did not own the house for 3 years. We as the owners had no say or input into this process. It was done without our knowledge. We now have an open order of conditions on the House. Lovely situation. Tea Party yes yes yes.

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