January 5, 2024
Dear Ms. Farrell and Dr. DeFant:
On behalf of Smart Solar Shutesbury, I reviewed the draft Wetlands Bylaw to be voted on at the
Special Town Meeting scheduled for January 16, 2024. The bylaw in general is a significant
improvement over the current bylaw. You are to be commended for the important work you
have undertaken to protect Shutesbury’s wetlands.
In two particulars, however, the bylaw is contrary to law and should be corrected. Section 8A
contains the following sentence: “The conditions imposed in any permit issued by the
Commission may include a condition that certain land or portions thereof are not built upon or
altered, filled, or dredged, and that streams are not diverted, dammed, or otherwise disturbed,
provided that such conditions may be included only with the consent of the applicant.”
The italicized portion of this sentence should be stricken. It is contradicted by other provisions
of this very same bylaw. The sentence just before it reads: “If it issues a permit approving a
project, the Commission shall impose conditions which the Commission deems necessary or
desirable to protect said Resource Area Values, and all activities shall be done in accordance
with those conditions.” Clearly there will be circumstances where a “no build” or “no disturb”
condition for a portion of the land will be necessary or desirable to protect Resource Area
Values. Section 2 of the draft bylaw identifies six Resource Areas for which alteration is
prohibited. It does not require consent of the applicant. Section 8C of the bylaw authorizes the
Commission to establish by regulation “no build,” “no disturb” and other work limits and the
recently adopted regulations do so in several sections, all without requiring the consent of the
applicant.
Courts have found that where the local bylaw authorizes the imposition of conditions that the
Commission deems reasonable, necessary or desirable to carry out the bylaw’s purposes, the
imposition of no-cut and no-construction conditions for a portion of the affected land constitute
a reasonable exercise of the Commission’s authority. T.D.J. Development Corp. v. Conservation
Comm’n of North Andover, 36 Mass. App. Ct. 124, 129 (1994) (“In imposing the no-cut and no-
construction limitation, the commission asserted that the proposed construction work would
have impact upon the adjacent wetland resource areas. In reaching that conclusion, the
commission relied on research suggesting the need for buffer strips to protect water quality and
wildlife habitat. Imposition of that condition was within the reasonable range of the
commission's authority to regulate activity in the buffer zone.”). There is no finding that the
Commission must obtain the applicant’s consent for these conditions to be valid.
A redlined comment on an earlier draft notes that the sentence in question is based on the
wetlands bylaws of Lexington, Townsend, Stow, Arlington, Wayland, and Amherst. Notably,
none of those towns’ bylaws include the italicized phrase.
o Lexington Bylaw Section 130-3.A “The conditions may include a condition that
certain land or portions thereof not be built upon or altered, filled or dredged,
that streams not be diverted, dammed or otherwise disturbed.”
o Townsend Bylaw Section 138-2.A “The conditions may include a condition that
certain land or portions thereof not be built upon or altered, filled or dredged,
that streams not be diverted, dammed or otherwise disturbed.”
o Stow Bylaw Article 9, Section 3.1 “The conditions may include a condition that
certain land or portions thereof not be built upon or altered, filled or dredged,
that streams may not be diverted, dammed or otherwise disturbed.”
o Arlington Bylaw Title V, Article 8, Section 4B “The conditions may include a
condition that certain land or portions thereof not be built upon or altered,
filled or dredged, and that streams not be diverted, dammed or otherwise
disturbed.”
o Wayland Bylaw Section 194-4.A “The conditions may include a condition that
certain land or portions thereof not be built upon or altered, filled or dredged;
that streams not be diverted, dammed or otherwise disturbed.”
o Amherst Bylaw Section 3.31.G(2) “If it issues a permit, the Commission shall
impose conditions that the Commission deems necessary or desirable to protect
those values, and all activities shall be done in accordance with those
conditions.”
Finally, it appears that the italicized phrase was inserted by an unknown editor because of a
concern that without it, the Town may be subject to a claim of a taking without due process for
which the landowner must be compensated. Case law makes it clear that this is incorrect – no
blanket consent of the landowner is required before a condition prohibiting alteration or
disturbance is imposed. In Comm’r of Natural Resources v. S. Volpe & Co., the Supreme Judicial
Court held that the state reasonably exercised its authority in prohibiting fill of a marsh under
the predecessor statute to the current WPA; whether the prohibition rose to the level of a taking
depended on the extent of the effect of the prohibition on use of the land generally. 349 Mass.
104, 111 (1965). Later cases have held that prohibitions on building in order to protect wetlands
do not constitute a taking. E.g., FIC Homes of Blackstone, Inc. v. Conservation Comm’n of Blackstone,
41 Mass. App. Ct. 681 (1996) (“no build” within buffer zone did not constitute a taking).
It is obvious that leaving the italicized phrase in the bylaw will cause confusion, internal
inconsistencies, and raise the risk of litigation if the Commission imposes certain conditions that
are necessary to protect the Resource Area Values but to which the applicant does not consent.
If a court agrees that the phrase supersedes the unilateral authority of the Commission to
prohibit certain activities deemed necessary to protect the Town’s resources, the effectiveness of
a bylaw that is intended to be stricter than the WPA will be eliminated. It is critical that the
italicized phrase be stricken from the draft that the Town will vote on.
There is another sentence that is both inconsistent with law and has the potential to adversely
affect the work of the Commission. Section 10 of the draft bylaw defines agent as including
municipal staff appointed by the Commission with the written approval of the Shutesbury Select
Board. G.L. c. 40, § 8C provides that the Commission has sole authority to appoint staff.
Conservation Commissions cannot fulfill their obligations under state law and local bylaw
without effective, knowledgeable agents. Agents conduct site visits, ensure that applications are
complete, communicate the law and regulations to applicants and interested parties, and are the
primary tool to investigate violations. The Commission must have full confidence that their
appointed agent best meets the Commission’s needs. By contrast, the Select Board has no
operational association with the agent. The insertion of the Select Board into the appointment of
the Commission’s agent is an unwarranted and cumbersome administrative process that does
not advance the interests of the WPA or the Town’s wetlands bylaw.
The draft may be corrected and distributed to the voters at any time up to and including
January 16th. Should the motion to adopt the bylaw include these problematic provisions, my
client will be prepared to advance an amendment to the motion to remove these provisions.
Town Meeting will be less confusing to voters if these simple but important changes are
reflected in the draft presented through the main motion.
Sincerely,
Donna M. Brewer