SBQ 10-10998

September 4, 2014

Plymouth, ss.




Plaintiff Dana Junior, as trustee of the Dri-Seal Trust, is the owner of the registered land at 605 Plymouth Avenue in Marshfield. Part of that property was fresh water wetland, which Mr. Junior’s predecessor, Clarke Phillips, filled, paved, and used as a parking lot without first obtaining the necessary permits. [Note 1] This activity did not go unnoticed, and Mr. Phillips was ordered to cease and desist. He subsequently filed a Notice of Intent for retroactive approval of that work, and an Order of Conditions was issued by the defendant Conservation Commission allowing the filling and paving to remain, conditioned, in relevant part, on (1) the performance of the work “in strict conformance with the conditions [set forth in the Order] and with the Notice of Intent and plans unless modified by said conditions,” (2) a conservation restriction prohibiting all future building in the area, (3) the recording of the Order in the property’s chain of title, and (4) “upon completion of the work described herein, the applicant shall forthwith request, in writing, that a Certificate of Compliance be issued stating that the work has been satisfactorily completed.” Order of Conditions (Oct. 2, 1978). Since the property is registered land, the “recording of the Order in the property’s chain of title” consisted of the registration of the Order on the certificate of title’s memorandum of encumbrances. This was done. Neither Mr. Phillips nor Mr. Junior, however, has ever placed the promised conservation restriction on the property, and neither has ever sought or obtained a Certificate of Compliance with the Order. The fill and paving are still there, and the wetlands have never been restored. Put simply, the landowners have taken, and continue to take, full advantage of the benefits of the Order, but have never complied with its burdens.

Despite this, Mr. Junior now seeks to have the Order removed from his certificate, contending that it has expired or become obsolete “by statute and the operation of law.” See Land Court Guidelines on Registered Land No. 21 (restrictions and conditions which expire by statute or have expired by their terms). The Commission disagrees, contending that the Order must remain on the property’s title records. The issue is now before me on cross-motions for summary judgment. For the reasons set forth below, I DENY Mr. Junior’s motion and ALLOW the Commission’s. The Order of Conditions is properly on the Certificate — indeed, it is statutorily required to be so — and shall remain there.

Material Facts, Not In Genuine Dispute

Summary judgment is appropriate when, “viewing the facts in the light most favorable to the non-moving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.” Augat Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991), citing Mass. R. Civ. P. 56(c). The facts material to this case, none of which are in genuine dispute, are as follows.

* The land in question is registered. Mr. Junior, as trustee of the Dri-Seal Trust, is its current owner of record.

* The land’s prior owner, Clarke Phillips, Jr., operated a school bus service, parking his vehicles at the site.

* In the spring of 1975, Mr. Phillips expanded his existing parking lot by filling and paving the adjacent wetlands.

* He neither applied for, nor received, the permit needed for that work (an Order of Conditions). [Note 2]

* The Marshfield Conservation Commission learned of the filling and paving and sent Mr. Phillips a Request for Compliance (Mar. 4, 1975), directing him to cease until an appropriate Order of Conditions was applied-for and issued.

* Despite that request, Mr. Phillips continued to fill and pave the wetlands area.

* Accordingly, on April 18, 1975, the Commission served Mr. Phillips with a Cease and Desist Order.

* Whether Mr. Phillips complied with the Cease and Desist Order at that time is unknown. The record indicates, however, that he was filling and paving in the wetlands area in September/October 1976, when he was again discovered by the Commission. Mr. Phillips’ excuse was that he was simply “level[ing] off” the previous fill at the back of the parking lot. The Commission did not find this an acceptable excuse.

* On October 7, 1977, Mr. Phillips applied to the Marshfield Zoning of Appeals for a special permit “to fill approximately 31,800 square feet” on his property. That application was denied. [Note 3] Thereafter, on April 22, 1978, he filed a Notice of Intent with the Conservation Commission “to fill area to provide adequate parking facilities for Bus operation.” The work was described as the “removal of some vegetation, filling and paving” of 31,800 square feet of tidal marsh. As noted above, much, if not all, of that work had already been done, and the permission sought was retroactive.

* While the Notice of Intent was pending, Mr. Phillips continued to dump and level more truckloads of fill. The material being dumped came from the site of the town’s sewerage treatment plant. In response, the Conservation Commission issued another Cease and Desist Order on August 9, 1978. Mr. Phillips then filed a new Notice of Intent on August 22, 1978, using the same description of work as his previous Notice (“removal of some vegetation, filling and paving” in the wetlands area, adding 31,800 square feet of impervious surface). As noted above, this activity had already occurred, and Mr. Phillips was seeking its retroactive approval.

* The Commission held a public hearing and issued an Order of Conditions on October 2, 1978. That Order (the Order at issue in this case) allowed the filling and paving to remain, conditioned on (1) the performance of the work “in strict conformance with the conditions [set forth in the Order] and with the Notice of Intent and plans unless modified by said conditions,” (2) a conservation restriction prohibiting all future building in the area, [Note 4] (3) the recording of the Order in the property’s chain of title, [Note 5] and (4) “upon completion of the work described herein, the applicant shall forthwith request, in writing, that a Certificate of Compliance be issued stating that the work has been satisfactorily completed.” [Note 6] Order of Conditions, introductory paragraph and ¶¶7, 8 and 11(g). As previously noted, the building prohibition was imposed “due to the flood damage potential because of the below sea level condition of [the] lot.” Id. at ¶11(g).

* Mr. Phillips registered the Order on his Certificate of Title’s Memorandum of Encumbrances. He did not, however, enter into the conservation restriction required by the Order, nor did he seek or obtain a Certificate of Compliance.

* Mr. Phillips apparently did additional filling in September 1979, but removed it when informed it was beyond the scope of fill permitted by the Order. See letter to Clarke Phillips Jr. from H. Warren Harrington, Conservation Administrator (Oct. 4, 1979). In October 1986, he ceased construction of a stockade fence when informed by the Commission that it violated the Order’s building prohibition. See letter to Clarke Phillips Jr. from H. Warren Harrington, Conservation Administrator (Oct. 7, 1986).

* At some point in 2003 (the record does not indicate when), Mr. Phillips filed a Notice of Intent to construct a single family home on the property. By order dated September 17, 2003, the Conservation Commission denied that application, basing its denial on its determination that “the restriction placed on the property prohibiting the future construction of any buildings as set forth in the Order of Conditions dated 10/2/1978 condition #g. issued for DEP file #SE42-53 [was] still in effect [and] the Commission has determined to uphold the prohibition of construction of any buildings…” WPA Form 5(d) Order of Denial (Sept. 17, 2003).

* No appeal was taken from that denial.

* By Transfer Certificate of Title dated July 29, 2005, plaintiff Dana Junior, as trustee of the Dri-Seal Trust, became the registered owner of the property. The October 2, 1978 Order of Conditions remained on the property’s Memorandum of Encumbrances, and remains there today.

* Mr. Junior has not entered into a conservation restriction, and has neither sought nor obtained a Certificate of Compliance.

* The wetlands have never been restored, and the fill and paving remain there today.


At issue is an Order of Conditions that retroactively approved the filling and paving of wetlands conditioned on a prohibition of future construction in that area. By statute, for recorded land, the Order must be recorded in the property’s chain of title and, for registered land (as here), it must be registered on the property’s certificate of title. G.L. c. 131, §40. The reason for this is simple: “[a]ny person who purchases, inherits or otherwise acquires real estate upon which work has been done in violation of this section or in violation of any order issued under this section shall forthwith comply with any such order or restore such real estate to its condition prior to any such violation,” [Note 7] and the registration gives notice to those persons. Such record notice is particularly important for registered land where, with only limited exceptions, “[e]very plaintiff receiving a certificate of title in pursuance of a judgment of registration, and every subsequent purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free from all encumbrances except those noted on the certificate.” G.L. c. 185, §46.

It is undisputed that the Order of Conditions was issued, that it was registered (as required) on the property’s certificate of title, and that the then-landowner, Mr. Phillips, took advantage of its benefits: he filled in and paved 31,800 square feet of wetlands — nearly three- fourths of an acre. It is also undisputed that he never complied with the quid pro quo for that permission: the placement of a conservation restriction on the property prohibiting all future building in that former wetland area.

Despite this, Mr. Junior now contends that the Order should be removed from his certificate of title because, he says, it has expired or become obsolete “by statute and the operation of law.” He is incorrect. The Order was statutorily required to be put on the certificate, and is statutorily required to remain. The only subsequent act that statute permits is the registration of a Certificate of Compliance containing a finding by the issuing authority (here, the Conservation Commission) “that the activity, or portions thereof, has been completed in accordance with such order.” G.L. c. 131, §40. [Note 8] Both the Order of Conditions and the Certificate of Compliance remain on the certificate of title in perpetuity, showing clearly, on the record, (1) the scope of the otherwise-illegal work, (2) that it was duly authorized, and (3) that it was performed in compliance with that authorization. If the Certificate of Compliance is not on the certificate, [Note 9] the presumption (correct in this case) is that the work was not compliantly performed, subjecting successor landowners to the responsibility for either compliance or the restoration of the land to its prior condition. Id. [Note 10]

Mr. Junior argues otherwise, relying on the language of 310 CMR 10.05(6)(d), which provides, in relevant part:

Except as provided in M.G.L. c. 131, §40 for maintenance dredging, an Order of Conditions, Order of Resource Area Delineation, or Notification of Non-significance shall be valid for three years from the date of its issuance; provided, however, that the issuing authority may issue an Order for up to five years where special circumstances warrant and where those special circumstances are set forth in the Order.

In Mr. Junior’s view, under that provision, the failure to fully comply with the Order, and then register a Certificate of Compliance within three years of the date the Order issued, negates all aspects of the Order, making it an “expired or obsolete encumbrance” which must be stricken pursuant to Land Court Guidelines for Registered Land No. 21. That is not, however, what 310 CMR 10.05(6)(d) says. When that regulation states that the Order of Conditions remains valid for three years from its date of issuance, it means (and only means) that the landowner has three years within which he may legally perform the work so permitted. It does not mean, and it would be absurd to mean, that where (as here) the work has been performed (here, the filling of the wetlands), the quid pro quo for that work (here, the building prohibition) disappears if a Certificate of Compliance is not timely filed. See Martha’s Vineyard Land Bank Comm’n v. Bd. of Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 27-28 (2004) (statutes construed to avoid “absurd results”). Mr. Junior attempts to remove that absurdity by arguing that a negation of the Order still leaves the Commission with the option of seeking full restoration of the wetland. But not only is that a mis-reading of the regulation and completely illogical, [Note 11] it is also directly contrary to the language of G.L. c. 131, §40 which, as noted above, allows actions against successor owners “for violation of any order issued under this section” so long as the action is brought within three years of that owner’s date of acquisition. (emphasis added). In any event, “expired” or not, G.L. c. 131, §40 requires the Order to remain on the Certificate. See discussion above. Guideline 21 cannot contradict a statutory command. See Schiffenhaus v. Kline, 79 Mass. App. Ct. 600 , 605 (2011) (“It is axiomatic that a by-law cannot conflict with the statute”).

In the alternative, Mr. Junior contends that, had the Order had been followed and the “no build” restriction placed on the property, that restriction would have expired at the end of thirty years pursuant to G.L. c. 184, §§ 23 or 27 and should thus be stricken under Guideline No. 21. That too is incorrect. G.L. c. 184, §§23 and 27 do not apply because the “no build” restriction (condition 11(g) in the Order of Conditions) is a “conservation restriction” governed by G.L. c. 184, §31, which has no time limits. [Note 12] See Planning Bd. of Hingham v. Hingham Campus LLC, 438 Mass. 364 , 367 (2003) (“to the extent a conflict between two statutes exists, the more specific statute controls over the more general one.”) (internal citations and quotations omitted).


For the foregoing reasons, plaintiff Dana Junior’s motion for summary judgment is DENIED and the defendant Conservation Commission’s cross-motion for summary judgment is ALLOWED. The Order of Conditions is properly on the property’s Certificate of Title and shall remain there.

Judgment shall enter accordingly.


[Note 1] The permit required for such filling and paving is an “Order of Conditions” (in Marshfield, under the jurisdiction of the town’s Conservation Commission), and the application necessary to obtain such an Order is called a “Notice of Intent.” See G.L. c. 131, §40 (“No person shall remove, fill, dredge or alter any bank, riverfront area, freshwater wetland, coastal wetland, beach, [etc.] … without filing written notice of his intention to so remove, fill, dredge or alter, including such plans as may be necessary to describe such proposed activity and its effect on the environment and without receiving and complying with an order of conditions and provided all appeal periods have elapsed….” “Freshwater wetlands” are defined as “wet meadows, marshes, swamps, bogs, areas where groundwater, flowing, or standing surface water or ice provide a significant part of the supporting substrate for a plant community for at least five months of the year; emergent and submergent plant communities in inland waters; [and] that portion of any bank which touches any inland waters.” G.L. c. 131, §40. In this instance, the Conservation Commission determined that the area at issue was “inland [fresh water] wetlands because it [was] isolated from the sea and ha[d] only fresh water plants.” See letter from H. Warren Harrington, Marshfield Conservation Administrator, to the Marshfield Zoning Board of Appeals (Sept. 13, 1978).

A public hearing is held on the Notice of Intent and “[i]f [,] after said hearing [,] the conservation commission, selectmen or mayor, as the case may be, determine that the area on which the proposed work is to be done is significant to public or private water supply, to the groundwater supply, to flood control, to storm damage prevention, to prevention of pollution, to protection of land containing shellfish, to the protection of wildlife habitat or to the protection of fisheries or to the protection of the riverfront area consistent with the following purposes: to protect the private or public water supply; to protect the ground water; to provide flood control; to prevent storm damage; to prevent pollution; to protect land containing shellfish; to protect wildlife habitat; and to protect the fisheries, such conservation commission, board of selectmen or mayor shall by written order within twenty–one days of such hearing impose such conditions as will contribute to the protection of the interests described herein, and all work shall be done in accordance therewith….” G.L. c. 131, §40.

[Note 2] See n.1, above.

[Note 3] The record does not indicate why such a special permit was needed or the reason for the denial, but it was likely due to the lack of an Order of Conditions from the Conservation Commission.

[Note 4] In accordance with the provisions of G.L. c. 131, §40 cited above (n.1), the Commission determined that the building prohibition was necessary “due to the flood damage potential because of the below sea level condition of [the] lot.” Order of Conditions, ¶11(g). No appeal was taken from this determination, or from any other aspect of the Order.

[Note 5] Such a recording is also required by statute. G.L. c. 131, §40 (“No work proposed in any notice of intention shall be undertaken until the final order, determination or notification with respect to such work has been recorded in the registry of deeds, or if the land affected thereby be registered land, in the registry section of the land court for the district wherein the land lies.”).

[Note 6] This too is required by statute. “Within twenty-one days of the receipt of a written request, by the applicant or the owner of the property, for a certificate of compliance, the issuer of the final order shall grant such request if the activity, or portions thereof, complies with such final order. The certificate of compliance shall state that the activity, or portions thereof, has been completed in accordance with such order.” G.L. c. 131, §40.

[Note 7] G.L. c. 131, §40.

[Note 8] See Lyon v. Duffy, 77 Mass. App. Ct. 860 , 866 n. 8 (2010) (“…an OOC [Order of Conditions] requires recording and a certificate of compliance to remove the impairment…”).

[Note 9] Or, in the case of recorded land, if it is not recorded in the property’s chain of title.

[Note 10] The statute has a three-year limitations period for actions against a new owner. See G.L. c. 131, §40. But that limitation protects only that owner. Id. (limitations period applies only to “such person”). His or her successors become liable for compliance when ownership changes to them, and must wait out their own three years, and so on and so on. Id. The Order remains “of record” to give notice to such successors.

[Note 11] The practical effect of Mr. Junior’s interpretation would be to force the Conservation Commission to commence and pursuecomplex and expensive legal proceedings in which it would have to show both the existence and scope of the pre-existing wetland and the measures needed to restore it — surely an “illogical result” and not the statute’s intent. See Sullivan v. Brookline, 435 Mass. 353 , 360 (2001) (statutes to be interpreted to avoid “illogical results”). In contrast, an action to enforce the conditions in the Order enables the Commission to narrowly focus on the specific conditions breached.

[Note 12] The restriction required by condition 11(g) is a “conservation restriction” within the meaning of G.L. c. 184, §31 because (1) the Order specifically identifies it as such (“To prohibit the construction of buildings in the future on this parking lot due to the flood damage potential because of the below sea level condition of lot, the owner of land shall place a Conservation Restriction on the lot to be administered by the Commonwealth and the Town of Marshfield”) (Order of Conditions, condition 11(g)), and (2) it fits squarely with the definitions in §31. Specifically, it maintains the land in an open condition and “forbid[s] or limit[s] any or all construction or placing of buildings, roads, signs, billboards or other advertising, utilities or other structures on or above the ground” because of flood damage potential. G.L. c. 184, §31. Massachusetts Port Authority v. Basile, 17 LCR 185 (2009), cited by Mr. Junior, is inapposite because the restriction in that case allowed building and was thus outside the statutory definitions. Collins v. Mass. Dep’t of Conservation and Recreation, 20 LCR 164 (2012) is inapposite for the same reason. The restriction at issue in that case simply prohibited the use of the land as “a transportation, communication, electrical or other corridor or right of way” and, beyond those specified limitations, “the Commonwealth [was] free to use the land for any other lawful purpose.” 20 LCR at 166, 170-171.