On July 25, 2022, in City of Boston v. Quincy Conservation Commission, the Massachusetts Supreme Judicial Court held that the Quincy Conservation Commission’s denial of Boston’s Long Island Bridge project was superseded by the Massachusetts Department of Environmental Protection’s Superseding Order of Conditions under the State Wetlands Protection Act. The SJC concluded that the local denials were preempted by the Act because the Commission did not rely on provisions of the Quincy Wetlands Protection Ordinance which are stricter than the Act.
In 2018, Boston submitted its permit application under the Wetlands Protection Act—called a Notice of Intent—to the Quincy Conservation Commission. The Commission also reviewed the project under Quincy’s local Wetlands Protection Ordinance. As is permitted in most, if not all, other cities and towns with local wetlands ordinances or bylaws, the Notice of Intent triggered the Commission’s review under both the Wetlands Protection Act and the local ordinance.
In September 2018, after public hearings, the Commission denied the project under both the State Act and the local ordinance. The Commission based its denials on its perceived concerns over future repairs to the Moon Island Road causeway and its belief that the Boston Public Works Department had not fully quantified impacts on wetland resource areas. Its concerns that Boston had not fully quantified impacts to wetlands were not based on Boston’s project as proposed, but on pier repair methodologies not proposed by Boston yet envisioned by the Commission’s consultants.
Boston pursued two parallel appeals. Boston brought a certiorari action in Suffolk Superior Court, under Mass. Gen. Laws ch. 249, § 4, challenging the denials under Quincy’s local ordinance. Boston also filed an appeal to the Massachusetts Department of Environmental Protection (MassDEP) – called a Request for a Superseding Order of Conditions – to permit the project under the State Act. Importantly, while the Superior Court action was pending, MassDEP issued a Superseding Order of Conditions, permitting the project under the State Act. The MassDEP Order superseded the Quincy Conservation Commission’s denial under the State Act. In 2020, based on the MassDEP Superseding Order of Conditions, the Superior Court entered judgment for Boston, finding that the Superseding Order of Conditions preempted and superseded the Quincy Conservation Commission’s denial under the local ordinance.
The SJC Decision
In a unanimous decision, the SJC affirmed the Superior Court judgment and held that the Quincy Conservation Commission’s denials of the project under the local ordinance were superseded by MassDEP’s Superseding Order of Conditions. While the State Act sets the minimum standards for the protection of wetland resource areas and municipalities are free to implement stricter standards under local ordinances, a MassDEP Superseding Order of Conditions will preempt and supersede local decisions if they are not based on the stricter provisions of a local wetlands protection ordinance. The SJC goes on to say that the simple fact that a local ordinance is generally stricter than the State Act does not matter. Instead, the Commission will have had to rely on those stricter provisions in order to avoid a Superseding Order of Conditions’ preemptive effect.
In reaching its decision, the SJC pointed out that the Quincy Conservation Commission relied on the State Act’s implementing regulations—and not any regulations promulgated under the local ordinance—in its denials. The SJC further noted that the Commission did not describe in its denials or in its appellate brief how its application of the general “cumulative effects” language of the local ordinance to deny the project is different or stricter than MassDEP’s review of the project under the State Act.
Best Practices for Conservation Commissions After City of Boston
Following the City of Boston, local conservation commissions should take great care in crafting decisions that rely entirely on or in part on local ordinances or bylaws. Here are some key takeaways from the decision:
- If a commission wishes to base its decision on stricter provisions of its local ordinance or bylaw, it should both reference the applicable provisions of its ordinance or bylaw and explain how the stricter provisions apply to the particular project. In its decision, the SJC suggests that a reference to a provision of a local bylaw or ordinance without an explanation of how the commission is applying that provision to the project might be insufficient to avoid the State Act’s preemptive effect.
- If a commission intends to rely on a local provision stricter than the State Act, the best practice would be to describe in the written decision how the specific provision differs from the State Act. In its decision, the SJC faults the Quincy Conservation Commission, which attempted to rely on a local provision involving a project’s cumulative effect, stating, “[t]he commission does not explain in its brief and did not explain in its decisions denying Boston’s application, how its own analysis differs from the analysis that the DEP was authorized to perform.”
- Unless there is explicit authority in a local ordinance or bylaw, a commission should not deny a project based on concerns over future permitting or potential violations that have not occurred. In its decision, the SJC reminds conservation commissions that “prospective violations of a town by-law are not a legally tenable ground for denial of a submission that on its face complies with applicable law,” quoting the Massachusetts Appeals Court case Fafard v. Conservation Commission of Reading.
- Municipalities that rely on provisions permitting the consideration of a project’s “cumulative effect” as the reason why their ordinances or bylaws are stricter than the State Act should consider revisiting how “cumulative effects” are defined and analyzed. Boston successfully argued that Quincy’s local ordinance, as applied to the project, was not stricter than the State Act, despite the Commission pointing to vague language in its ordinance regarding a project’s “cumulative effect.” Not only did the Commission fail to describe how its analysis under this provision differs from MassDEP’s review, but the SJC also noted comparisons with “cumulative effect” provisions at issue in other cases which specifically defined cumulative impacts.
Boston is a good model for other communities. In 2019, Boston enacted its own local wetlands protection ordinance, which permits the Boston Conservation Commission to consider a project’s cumulative effect. The ordinance defines “cumulative effect” with specificity:
An effect that is significant when considered in combination with other activities that have occurred, that are occurring simultaneously, or that are reasonably foreseeable, whether such other activities are contemplated as a separate phase of the same project, or arise from unrelated but reasonably foreseeable future projects . . . . Future effects of sea level rise, coastal or inland flooding, or other future climate change effects are included among cumulative effects.Sammy S. Nabulsi is a partner and specializes in land-use, environmental, and real estate permitting and litigation. He has been permitting and litigation counsel to the City of Boston since 2018, when former Mayor Marty Walsh announced the City’s intentions to rebuild the Long Island Bridge and reestablish access to existing public health facilities on Long Island. Sammy briefed and argued this case on behalf of the City of Boston at the SJC. Project proponents or municipal officials may contact Sammy S. Nabulsi at firstname.lastname@example.org or at (617) 536-0040 if they have questions about the SJC decision, wetlands regulation or permitting, or other environmental or land-use issues.