OYSTER CREEK PRESERVATION, INC., & others [Note 1] vs. CONSERVATION COMMISSION OF HARWICH.

BOTSFORD, J. The principal issue in this case is the effect of a conservation commission's failure to issue its decision denying a requested order of conditions within the statutorily prescribed time period. [Note 2] The plaintiff Oyster Creek Preservation, Inc. (OCP),

Page 860

seeks permission to dredge Allen's Harbor Inlet, also called Oyster Creek (Oyster Creek), in the town of Harwich (town). On July 5, 2003, OCP filed a notice of intent with the town's conservation commission (commission), seeking an order of conditions allowing it to dredge Oyster Creek to improve boat access. The commission eventually denied the order of conditions, invoking both regulations promulgated pursuant to the Wetlands Protection Act (act), and the town's wetlands protection bylaw (town bylaw). In a decision on the plaintiffs' appeal from the denial, a judge in the Superior Court concluded that the commission's decision was preempted by a superseding order of conditions that had been issued by the Department of Environmental Protection (DEP), because, the judge determined, the town bylaw and its implementing regulations were not more stringent than the act. The judge noted the failure of the commission to issue its denial within the prescribed twenty-one day period, but did not base his decision on the point. In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed the Superior Court judgment, also without reaching the question of the commission's timeliness in issuing its denial. Oyster Creek Preservation, Inc. v. Conservation Comm'n of Harwich, 67 Mass. App. Ct. 1105 (2006).

We granted the commission's application for further appellate review. We conclude that the commission's denial, issued after the expiration of the twenty-one day period mandated by the act as well as the town bylaw, is without effect, and for this reason, the DEP's superseding order of conditions controls. We affirm the judgment of the Superior Court in part.

1. Background. The pertinent facts are these. In response to OCP's July 5, 2003, notice of intent for the Oyster Creek dredging project, the commission held a public hearing, as it was required to do under the act and the town bylaw. See G. L. c. 131, § 40. The public hearing commenced at the commission's meeting on July 15, 2003, and was continued to August 5, with the consent of OCP. On August 5 and then on August 19, the commission

Page 861

heard the matter, on each date accepting additional evidence and voting to continue the hearing to receive more information, again with the consent of OCP. At the close of the fourth hearing, held on September 16, the commission voted unanimously to close the public hearing.

Thereafter, on September 29, 2003, the commission received a letter from an attorney representing Henry E. and Mary Davidson, and Lawrence and Mary McKevitt, abutting property owners on the south side of Oyster Creek; the letter expressed concerns about the proposed project's impact on the abutters' land. At its next meeting held on September 30, the commission voted unanimously to reopen the public hearing on the Oyster Creek dredging project to accept the abutters' letter in evidence. This vote was followed directly by another vote to close the hearing to further evidence, and the commission then voted unanimously to deny the dredging project and order of conditions.

OCP appealed to the DEP pursuant to the act for a superseding order of conditions on October 8, 2003, twenty-two days after the commission had first closed the public hearing. On October 9 or 10, 2003, the commission issued its written decision denying the requested order of conditions. [Note 3] In that decision, the commission divided its statement of reasons for denial into two parts. The first part considered the proposed project in relation to the act and set out specific findings that referenced and were based on particular regulations that the DEP promulgated under the act. In the second part, the commission purported to review the project under the town bylaw and its implementing regulations. [Note 4]

Following the issuance of the commission's denial, OCP and

Page 862

three of its individual members initiated this action in the Superior Court on October 20, 2003. The plaintiffs' complaint included a count seeking review in the nature of certiorari of the commission's decision pursuant to G. L. c. 249, § 4, but also included a count for declaratory relief and one alleging violation of the State open meeting law, G. L. c. 30A, § 11A 1/2 . [Note 5] The commission filed the administrative record as its answer, and thereafter, the parties filed cross motions for judgment on the pleadings. [Note 6] After hearing, the judge granted the plaintiffs' motion and denied the commission's cross motion. The judge concluded that the town bylaw was no more stringent that the act, and ruled that the DEP's superseding order of conditions preempted the commission's decision.

2. Discussion. The act sets out a comprehensive scheme to govern activities, work, or projects that entail the removal, filling, dredging, or altering of wetlands and lands bordering waters. G. L. c. 131, § 40. The act requires any person who seeks to undertake such a project to file a notice of intent with the appropriate conservation commission or other official, with a copy

Page 863

to the DEP, and then mandates that the conservation commission hold a public hearing on the proposed project within twenty-one days after receiving the notice. Id. The act further prescribes that the conservation commission "shall . . . within twenty-one days of such hearing" issue a written order that imposes conditions on the proposed work to be done (including denial of the project), or that determines no conditions are necessary. This twenty-one day time limitation on the commission's decision is repeated in the town bylaw. [Note 7]

The commission contends that its decision complied with the statutory and town bylaw time requirements because the public hearing on the OCP dredging project did not close until September 30, 2003. The argument fails. The record shows that the commission voted to close the public hearing on September 16, 2003. While the town bylaw allows for the continuance of a public hearing in certain defined circumstances, none of those circumstances obtained in this case. [Note 8] Furthermore, there is no

Page 864

provision in the town bylaw for reopening a public hearing that the commission has already voted to close. September 16, 2003, is therefore the beginning date for measuring the twenty-one day limitations period.

The commission's alternate argument is that even if September 16 is the operative beginning date, the commission issued its denial within the requisite twenty-one days because the date of issuance was October 7, exactly twenty-one days after September 16. The record is to the contrary. The commission's decision expressly states in four separate places that the date of issuance is October 9, 2003, which is twenty-three days after September 16. [Note 9] Moreover, the applicable DEP wetlands protection regulations define the date that an order is issued as "the date an [o]rder is mailed, as evidenced by a postmark." 310 Code Mass. Regs. § 10.04 (1997). The record here is clear that the commission's decision carried a postmark dated October 10, 2003, twenty-four days after September 16. [Note 10]

Given that the commission's decision was not timely, what is the remedy? Here and in the Superior Court, the plaintiffs' position -- which the Superior Court judge incorporated into the judgment -- is that the failure of the commission to meet the twenty-one day time requirement results in the constructive grant of OCP's notice of intent. We disagree. The act contains no provision deeming a notice of intent granted if a decision on that notice of intent is not issued within twenty-one days. [Note 11] Rather, the act instructs an applicant aggrieved by a conservation

Page 865

commission's failure to act within the requisite time to seek relief from the DEP. G. L. c. 131, § 40. Thus, the act states that

"if a [local conservation] commission, after holding such a hearing has failed within twenty-one days therefrom to issue an order . . . any person aggrieved by said commission's . . . failure to act . . . may, . . . within ten days from said commission's . . . failure to act, request the [DEP] to determine whether the area on which the proposed work is to be done is significant [to interests protected by the act] . . . . Upon receipt of such request the [DEP] shall make the determination requested and shall by written order . . . impose such conditions as will contribute to the protection of the interests described herein . . . . Such order shall supersede the prior order of the conservation commission . . . and all work shall be done in accordance therewith . . . ."

Id. The import of this provision is that 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.

The failure of a conservation commission to issue a timely decision presents a different case than one in which the commission is timely with its decision but rests its determination on provisions of a local bylaw that are more protective than the act. In the latter case, a superseding order of conditions issued by the DEP cannot preempt the conservation commission's bylaw-based determination. See, e.g., Rodgers v. Conservation Comm'n of Barnstable, 67 Mass. App. Ct. 200, 206, further appellate review

Page 866

granted, 447 Mass. 1111 (2006); FIC Homes of Blackstone, Inc. v. Conservation Comm'n of Blackstone, 41 Mass. App. Ct. 681, 686-687 (1996). This rule is based on the recognition that the act establishes Statewide minimum wetlands protection standards, and local communities are free to impose more stringent requirements. See Golden v. Selectmen of Falmouth, 358 Mass. 519, 526 (1970). See also 310 Code Mass. Regs. § 10.01(2) (2005) ("nothing contained herein should be construed as preempting or precluding more stringent protection of wetlands or other natural resource areas by local by-law, ordinance or regulation"). But the timing provisions in the act are obligatory, and a local community is not free to expand or ignore them. Thus, where a conservation commission issues its decision after the statutory deadline, it is appropriate that it should lose the right to insist on the provisions of its local bylaw, and that any superseding order issued by the DEP should apply in its stead. Accordingly, in this case, the superseding order of conditions issued by the DEP on January 7, 2005, governs OCP's proposed dredging project, and OCP is entitled to proceed in accordance with the terms of that order. [Note 12]

3. Conclusion. We affirm the judgment of the Superior Court to the extent it declares that the proposed dredging project is effectively governed by the DEP's superseding order of conditions. The other two aspects of the Superior Court judgment

Page 867

are vacated. [Note 13] The case is remanded to the Superior Court for entry of a judgment consistent with this opinion.

So ordered.