SJC: Involuntary Waiver of Wetlands Decision Deadline Invalid

A common practice by conservation commissions in which they preemptively extend their own deadlines under the state Wetlands Protection Act has been struck down by the Supreme Judicial Court.

In this week’s Garrity v. Conservation Commission of Hingham decision, the Supreme Judicial Court (SJC) ruled that when an applicant is given no choice but to grant a waiver of their right to a timely decision, the waiver is invalid.

The Wetlands Protection Act requires that a conservation commission must issue a written decision within 21 days after closing a public hearing. Failure to meet this deadline gives the applicant the right to seek a superseding order of conditions from the Department of Environmental Protection (DEP), in place of a local decision.

When crunched for time, conservation commissions often ask applicants to grant waivers of the 21-day deadline. Some conservation commissions go so far as to include in their application packets a standard form granting an open-ended waiver, and require that the waiver form be completed before taking up the application.

In Garrity, the applicant was required to complete one of these standard waiver forms as part of his application to construct a pier on his oceanfront property. The Hingham Conservation Commission denied his application and issued its written decision 22 days after the close of the hearing.

The SJC held that the conservation commission’s late decision was moot, and properly superseded by a subsequent DEP order approving the project, because the applicant’s waiver did not meet the following four-part test to determine whether a waiver of a statutory right is valid:

  1. The waiver must be voluntary;
  2. The waiver must have a defined duration;
  3. The waiver must be reasonable in length; and
  4. The waiver’s duration must be a matter of public record.

Because the applicant in Garrity had no choice but to grant an open-ended waiver as part of the application process, the SJC ruled that the waiver was ineffective.

Although Garrity puts applicants in a stronger position to obtain timely decisions, the case may not have a huge impact on the number of waivers granted. Applicants are often sympathetic to the time constraints imposed on volunteer conservation commissions, and waiving the 21-day deadline can help generate a decision that benefits both the applicant and the community.

However, Garrity should serve as a caution to conservation commissions that they can not rely on waivers that are not truly voluntary.

About Brian Falk

Brian is an attorney in Mirick O'Connell's Land Use and Environmental Law Group. In his municipal practice, he counsels towns and cities in all areas of municipal law. He also represents private clients in land use permitting matters and real estate transactions. Brian lives in Milford with his wife and three sons.
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