The Massachusetts Supreme Judicial Court (SJC) decided a case this week clarifying the limitation on a municipality’s ability to regulate wetlands and waterway construction more stringently than would the Department of Environmental Protection. City of Boston v. Conservation Comm’n of Quincy, No. SJC-13244 (Mass. July 25, 2022). Interestingly, this decision follows closely on the heels of Armstrong v. Sec’y Energy & Envtl. Affairs, No. SJC-13210 (Mass. July 12, 2022), which limited municipalities’ ability to be less restrictive than DEP about waterfront development. See DEP’s Municipal Harbor Plan Regulations Invalid.

Massachusetts requires an “order of conditions” under the Wetlands Protection Act, Mass. Gen. L. ch. 131, § 40, before anyone can do work affecting wetlands or nearby areas. The local conservation commission typically issues that order of conditions, but a disappointed applicant may seek a superseding order from the Department of Environmental Protection. The DEP order preempts the local conservation commission decision unless the more restrictive local order is based on a local ordinance that is more stringent than the Wetlands Protection Act. We addressed this scheme in Local Preemption and Wetlands in Massachusetts.

But how does one know that the local ordinance is more stringent than the Wetlands Protection Act and that that enhanced stringency is the basis for a local decision either to deny an order of conditions or to issue an order with more restrictive conditions than DEP would impose?

In City of Boston, the SJC held that the City of Quincy Conservation Commission’s denial of an order of conditions was preempted by DEP’s superseding order of conditions even though the local ordinance was arguably more stringent, because the commission did not explain in its decision or in any briefing in the case why the denial was required by more stringent local provisions. Boston sought to reconstruct a bridge in Boston Harbor that was located partially in Quincy. The Quincy Conservation Commission refused to issue an order of conditions, thus prohibiting the project. Boston sought, and DEP granted, a superseding order of conditions that permitted the construction Boston planned. The Quincy Conservation Commission appealed the issuance of the superseding order, arguing that its denial should be enforced since it was based on more stringent local provisions. But the language in the denial to which the Commission pointed did not clearly support the more stringent conditions.

This outcome puts a thumb on the scale in favor of preemption. However, the weight of that thumb depends critically on the local provisions, the details of the administrative record, and the local conservation commission decision. Will this lead to more and messier litigation, requiring courts to parse local provisions and determine their stringency vis-à-vis the Wetlands Protection Act, or will the thumb itself cause more local conservation commissions to acquiesce in DEP superseding orders of conditions? Stay tuned.

Photo of David Mandelbaum David Mandelbaum

David G. Mandelbaum represents clients facing problems under the environmental laws and serves as Co-Chair of the firm’s Environmental Practice. He regularly represents clients in lawsuits and has also helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. David teaches Superfund…

David G. Mandelbaum represents clients facing problems under the environmental laws and serves as Co-Chair of the firm’s Environmental Practice. He regularly represents clients in lawsuits and has also helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. David teaches Superfund, and Oil and Gas Law in rotation at the Temple Law School. He teaches the Superfund course at Suffolk (Boston) Law School as well. David is a Fellow of the American College of Environmental Lawyers.

Concentrations

  • Air, water and waste regulation
  • Superfund and contamination
  • Climate change
  • Oil and gas development
  • Water rights
Photo of Edward S. Hershfield Edward S. Hershfield

Edward S. Hershfield focuses his practice on representing clients throughout the United States in all aspects of complex real estate transactions, including acquisitions, financings, restructurings, zoning and land use matters, development and permitting processes, workouts, and dispositions. His clients include institutions, national real…

Edward S. Hershfield focuses his practice on representing clients throughout the United States in all aspects of complex real estate transactions, including acquisitions, financings, restructurings, zoning and land use matters, development and permitting processes, workouts, and dispositions. His clients include institutions, national real estate developers, private equity funds, hedge funds, foreign investors, pension fund advisors, publicly traded corporations, national banks, and other lenders.

Ed is regularly involved in all facets of structuring real estate acquisitions, developments, financings and dispositions, including working with clients to create development entities, analyze potential sites and projects, and obtain traditional and innovative financing, including preferred equity and mezzanine loans. He also works with owners and lenders to develop and implement financing workouts and restructures of real estate loans. He has been involved in creating numerous “shared appreciation” restructurings where lenders and other creditors obtained equity interests and additional payments based on future property performance and sales value. His experience includes working with owners, private equity funds, hedge funds, and other investors in identifying value in real estate assets, developing strategies to give his clients competitive advantages, and acquiring assets or loans to enable his clients to take full advantage of opportunities.

Photo of Lauren A. Liss Lauren A. Liss

Lauren A. Liss focuses her practice on environmental law and policy as well as real estate development. Lauren has deep public and private sector experience, having served in a variety of governmental roles, including as president and CEO of the Massachusetts Development Finance…

Lauren A. Liss focuses her practice on environmental law and policy as well as real estate development. Lauren has deep public and private sector experience, having served in a variety of governmental roles, including as president and CEO of the Massachusetts Development Finance Agency. In this role, she led the state’s quasi-public finance and development agency, working with businesses, nonprofits, banks, and communities to stimulate economic growth across the Commonwealth. She previously served as commissioner of the Department of Environmental Protection for the Commonwealth of Massachusetts, and as general counsel and deputy secretary for Environmental Policy at the Executive Office of Transportation and Construction for the Commonwealth of Massachusetts. Additionally, she was senior environmental counsel for the Central Artery/Ted Williams Tunnel project.