Enforcement and Inspection, Environmental Permitting

Massachusetts Wetland Ruling Creates Complications for Property Buyers

The Massachusetts Supreme Judicial Court (Mass SJC) ruled on August 31 that the local conservation commission can sue new owners of real estate to require them to restore wetlands that were filled illegally, even decades after the illegal filling occurred. With this ruling in Conservation Comm’n of Norton v. Pesa, SJC-13058, the triggering event becomes each new transfer of the property and remains valid for three years after each property transfer. Granting this power to local conservation commissions presumably means the State of Massachusetts will also have the power to sue new property owners to restore wetlands that were illegally filled.

Massachusetts was the first state to adopt wetlands protections laws in the 1960s, according to Greenberg Traurig’s E2 Law Blog. “Municipal conservation commissions generally regulate work in wetlands under the Massachusetts Wetlands Protection Act, Mass. Gen. Laws chap. 131, § 40. One can fill or otherwise alter a wetland under the Act pursuant to an approval granted by a conservation commission known as an ‘order of conditions.’ A property owner must restore a wetland altered without that authorization, and that obligation continues to a subsequent owner.”

Background

In the Pesa case, John Texeira purchased a 3.2-acre tract of land in 1967. In 1979, he filed a notice of intent with the conservation commission that he intended to construct a store, install a sanitation system, and place fill on the land for a parking lot. The commission issued an order of conditions approving the project, according to the submitted plans.

The amount of land Texeira subsequently filled exceeded the square footage submitted in his plan by 11,000 square feet. In 1984, the commission asked Texeira to submit an updated sketch of the filled areas. He did not respond to the request.

In 1996, Texeira deeded the land to himself and his wife, Ann. He died in 2006. In 2014, Ann decided to sell the property to Robert and Annabella Pesa.

“An attorney working on the closing contacted the commission to request a ‘certificate of compliance,’ which the commission was required to grant if the completed work on the property complied with the order of conditions issued to John Teixeira in 1979,” state the court documents. “In conjunction with that request, an ‘as-built plan’ was submitted on behalf of Ann Teixeira, delineating the areas of the property that had been filled.”

Because the fill area exceeded the approved area, the commission requested that the unauthorized fill be removed. The Pesas wrote to the commission in November 2014 and asked it to give them time to solicit bids and provide a solution that “best meets the regulations as set forth in the [act].”

Even though the issue regarding the unauthorized fill area on the property was not yet resolved, the Pesas, as trustees of the Pesa 2000 Realty Trust, proceeded with the purchase in December 2014.

Although the Pesas made other suggested solutions to resolve the issue, none was accepted by the commission, which ultimately issued an enforcement order directing “the defendants to cease all activities in the affected areas and to restore the affected areas to their ‘original condition,’” as stated in the court documents. “The defendants did not comply with the order and did not commence legal action to challenge it.”

Because the Pesas did not comply, the commission sued them in Superior Court. In June 2020, that Court granted the Pesas motion for summary judgment and denied the commission’s summary judgment ruling.

The Superior Court judge determined that “because G. L. c. 131, § 40, contains a statute of repose, the commission’s action was prohibited. The judge viewed the provision as requiring the commission to bring an enforcement action within three years of the first transfer of ownership [of] the property occurring after the unauthorized filling originally took place. Because the unauthorized filling occurred no later than 1984, when John Teixeira owned the property, and because he transferred the property to himself and his wife in 1996, the judge determined that the statute of repose barred enforcement actions commencing after 1999, and thus denied the commission’s motion for summary judgment. The commission appealed from this portion of the decision ….”

The ruling

The Mass SJC disagreed with the lower court on its decision regarding the statute of repose.

“A statute of repose has the effect of ‘abolishing’ a cause of action after a certain date,” the Mass SJC wrote. “Thus, the defendants’ argument that the present action is barred by the statute of repose in essence states that the statute of repose has abolished the cause of action the commission purported to enforce, and that the enforcement order was issued outside the commission’s authority.”

The Court’s determination was based upon long-standing legal precedent that it is important to consider the legislative intent when interpreting statutes. The Court noted the differences in a “statute of limitations,” which imposes a time limit upon commencing an action after the cause occurred, and a “statute of repose,” which “eliminates a cause of action at a specified time, regardless of whether an injury has occurred or a cause of action has accrued as of that date.”

“The Court held that the statute of repose is personal to each owner,” according to Greenberg Traurig. “Each new owner is exposed to enforcement for a prior owner’s wetlands violations, for three years after the transfer. Here, the illegal filling occurred more than 30 years before the Pesas purchased the property.

“The [Mass] SJC observed that new owners would be on notice of a possible violation if, as here, the conservation commission issued an order of conditions, which would be recorded, but never granted a certificate of compliance, which would also be recorded.”

Obviously, purchasers of property in Massachusetts will have to exercise new due diligence moving forward to ensure they are not subjecting themselves to additional liability. Additionally, other states may follow suit, as many have based their wetlands protections laws upon the original laws created by Massachusetts.