Attorneys Alex Weisheit and Devan Braun Successfully Defend Conservation Commission Cases

Town of Norton Conservation Commission v. Pesa 

Attorneys Alex Weisheit and Devan Braun recently earned a key victory before the Massachusetts Supreme Judicial Court in Town of Norton Conservation Commission v. Pesa, Slip Op. SJC 13058 (Aug. 31, 2021). The SJC’s decision includes an important interpretation of a provision of the Wetlands Protection Act relative to the authority of a conservation commission, following transfers of property, to seek enforcement for past violations.  The SJC held for the first time that Wetlands Protection Act contains a statute of repose that is personal to each new owner of property with existing violation(s) of the Act.  Accordingly, Commissions may pursue enforcement for past violation(s) against each new owner of the property where the violation(s) occurred, so long as such enforcement action is commenced within three years of each new owner’s purchase of the property.  In so ruling, the SJC affirmed the broad enforcement authority of Commissions across the Commonwealth.

Maier v. Eastham Conservation Commission

Attorneys Alex Weisheit and Devan Braun successfully defended the Eastham Conservation Commission’s denial of an order of conditions to construct a driveway and parking lot in the buffer zone to a protected coastal bank and important wildlife corridor near Cape Cod Bay without providing sufficient mitigation for erosion, flood control, water pollution, and storm damage. In Maier v. Eastham Conservation0 Commission v. Pesa, Barnstable Sup. Ct. No. 1872CV00502 (Aug. 31, 2021), a judge of the Barnstable Superior Court (Pasquale, J.) agreed with the Conservation Commission that the local bylaw was more stringently protective of wetlands than state law, particularly with respect to wildlife and erosion control, and that any superseding determination by MassDEP could not preempt the Commission’s decision as it was based on protecting those values under the bylaw.  The judge also agreed with the Commission that the local bylaw is more protective than state law because it directly regulates work in a buffer zone to a resource area and provides sufficient standards by which to evaluate potential harm to wetlands. 

Accordingly, the Superior Court concluded that the Commission’s decision was not arbitrary and capricious, unsupported by the record evidence, or otherwise contrary to law, and upheld the Commission’s order of conditions denial decision.

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