Murtha Means More

SJC Invalidates Forced Waiver of Wetlands Protection Act Deadlines

July 19, 2012

In a decision issued on Monday of this week, the highest court in the Commonwealth, the Supreme Judicial Court (SJC), ruled in Garrity v. Hingham Conservation Commission (see complete 12 page decision here) that the Wetlands Protection Act’s (G.L. c. 131, section 40, “WPA”) 21-day deadlines for local conservation commissions to open and hold a public hearing on a notice of intent and to then issue a decision after close of the public hearing are waivable by an applicant, provided that the waiver is (1) intentional, (2) “voluntary in fact,” (3) of a reasonable and definite duration, and (4) publicly-noticed.  In the Garrity case, the SJC held that the plaintiff applicant’s purported waiver of the 21-day decision issuance deadline, which was based on the signing of a form that the defendant Hingham Conservation Commission required all applicants to sign, was invalid because it was not voluntary. Because the waiver of the deadline or grant of an extension was not voluntary, there was no valid waiver or extension and the commission’s decision to deny the plaintiff’s application under the local bylaw, issued 22 days after the close of the public hearing, was null and void. (Note this decision also involved an enforcement order that the SJC upheld on different grounds).

While this decision appears in many respects to simply confirm the statutory and regulatory language (see 310 CMR 10.05(5)(b) ) about extensions, it is helpful to have SJC direction on that point, particularly given a practice by many commissions of using such waiver forms. Some local commissions have used the practice of requesting extensions, or deadline waivers, to allow themselves sufficient time to assemble a quorum of members to hear all of the information and vote on an application. This can be particularly helpful to a commission that meets infrequently, or that has difficulty maintaining a “Mullin Rule” quorum on a hearing that may span several meetings. The practice of requesting an extension is acceptable provided the applicant agrees to it in accordance with 310 CMR 10.05(5)(b). The problem arises when a commission uses
a waiver form that becomes or is perceived as mandatory, thus steering away from the intent of the WPA and its regulations that any extension be agreed to by the applicant, i.e. voluntary. Of course, commissions can still request an extension of a hearing where necessary - whether to assist the Commission in reviewing the information or to help an applicant to have all the time necessary to provide its information. If the applicant agrees
to the extension of the deadline for a commission to issue a decision, the later deadline will not be considered “missed.”

If you have any questions regarding this issue, please contact Kathleen E. Connolly at 617.457.4096 or

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