In a recent unpublished decision, an Appeals Court panel again strictly applied the 21-day deadline for conservation commission action under the state Wetlands Protection Act (WPA) (see related commentary here). In Huie v. Conservation Commission of Scituate (pdf), the plaintiffs sought certiorari review of a Determination of Applicability (DOA) that the Scituate Conservation Commission issued with regard to their neighbor’s beachfront property. The Superior Court dismissed the plaintiffs’ action on the ground that it had not been timely filed. The Appeals Court panel affirmed, but on a different ground: the Conservation Commission’s failure to issue the DOA within 21 days of the landowner’s request for it, as required by the WPA. The panel noted that the DOA was postmarked 28 days after the landowner’s request, and, citing the Supreme Judicial Court’s 2007 decision in Oyster Creek Preservation v. Conservation Commission of Harwich (pdf), ruled that the DOA was therefore “a nullity.” This means that the town’s wetlands by-law is no longer in play, and further proceedings will be governed solely by the WPA and any superseding determination that may be issued by the Massachusetts Department of Environmental Protection.
