Attorney Kraus Overturns Conservation Commission decision from Massachusetts Appeals Court - Article from Massachusetts Lawyers Weekly (May 2017)

Appeals Court - May 2017

Plymouth business litigator Robert Kraus figures he just beat some pretty long odds in obtaining the reversal of a town conservation commis- sion’s order and fines against a residential real estate devel- oper for alleged violations of the Wetlands Protection Act.

“It is rare to overturn or otherwise change a decision of a conservation commis- sion because their authori-

ty is almost irreversible,” says Kraus, of Kraus & Hummel.

Kraus’s client is Marcia Dubee, trustee of RETEP Re- alty Trust. Twelve years ago, the trust built Whispering Wood, a four-lot subdivi- sion in Bridgewater. The trust obtained all the necessary permits and approvals for

the project.

At least that’s what every- one thought at the time.

Neighbors soon started complaining that water from the development’s drainage system was causing a near-

by fishing pond to cave in. The Wetlands Protection Act, G.L.c. 131, §40, regulates ac- tivities within 100 feet of pro- tected areas.

The town now claims that Whispering Wood’s drainage system was constructed with- in the pond’s statutorily pro- tected “buffer zone” without the trust first filing a “notice of intent” or “request for de- termination of applicability” as required by the statute and

its implementing regulations. Motivated by years of com-

plaints from neighbors, in 2012 the town conservation commission requested that the trust file an “after-the- fact” notice of intent or re- quest for determination of applicability with respect to the construction of the drain- age system.

The trust refused, con- tending it had complied with all conditions required by the town at the time

of construction.

The commission respond- ed by issuing an enforcement order under the wetlands act and the town’s wetlands pro- tection ordinance. The trustee challenged the commission’s action in Plymouth Superi-

or Court, arguing that the en- forcement order was barred by the two-year statute of lim- itations in G.L.c. 131, §9.

The commission levied fines for the trust’s noncom- pliance with the enforcement order and moved for judg- ment on the pleadings. Supe- rior Court Judge Cornelius J. Moriarty II granted the com- mission’s motion, concluding the trust’s alleged violation of the act constituted a continu- ing violation.

But last month an Ap- peals Court panel comprised of Judges Elspeth B. Cy- pher, Judd J. Carhart and Andrew R. Grainger re- versed the lower court in an

KRAUS

unpublished decision. The Appeals Court con-

cluded that the commission failed to make predicate find- ings to establish a continuing violation, noting in particu- lar the record was “devoid”

of a commission finding that installation of the drainage system would alter or had al- tered an area protected by the statute.

“Absent (1) a finding that development of Whispering Wood ‘has in fact altered’ the pond, or (2) proof ‘that the specific activity within the buffer zone ... cause[d] ... the alteration,’ the only viola- tion the trust committed was its procedural failure to file [a notice of intent],” the pan- el concludes.

“That procedural failure occurred in or before 2005, and the enforcement order is- sued some ten years later is

peal.

— Pat Murphy

Hearsay

Conservation order ‘all wet’

Volume 46 Issue No. 19 May 8, 2017

barred by the statute of lim- itations contained in G. L. c. 131, §91.”

According to Kraus, it was important for the Appeals Court to enforce the statute of limitations in his client’s case, particularly in light of evidence that the town con- servation commission con- ducted meetings on the abut- ting landowners’ complaints without the developer receiv- ing appropriate notice.

“The case stands for the proposition that the conser- vation commission and any boards overseeing permitting should address all of the is- sues associated with devel- opment at that point in time. Otherwise, the statute of lim- itations will be honored by the courts,” Kraus says.

Bridgewater attorney Ja- son Rawlins represented the town.

According to Rawlins, there is precedent from the Appeals Court for the tolling of the statute of limitations in his client’s case.

“Basically, those cases say that it’s equivalent or analo- gous to a continuing nuisance where someone has altered a wetland without filing a no- tice of intent or request for determination of applicabili- ty,” he says.

Rawlins could not say whether the town would ap-