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SJC ruling partially resolves Hingham conservation dispute

Posted by Jessica Bartlett  July 16, 2012 06:16 PM

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A three-year dispute over waterfront construction on a Hingham property will go back to the Conservation Commission after the Supreme Judicial Court on Monday ruled partially in favor of the town, and partially in favor of the applicant.

While the decision leaves the final disposition of Michael Garrity's backyard unsettled, two lawyers said the ruling was significant in helping to clarify procedures for certain environmental regulations.

Garrity, who owns waterfront property in Hingham, had initially requested a hearing through Hingham's Conservation Commission for the construction of a pile-supported pier, floating dock, and platform deck in 2009.

A delay for the public hearing was requested and granted. Approximately a month after the application submission, the hearing was held.

Twenty-two days after the public hearing closed, the commission denied the project. Garrity then appealed the ruling through the state Department of Environmental Protection, saying that the commission failed to act within the 21-day time period for a decision to be issued, a timetable mandated by the Wetlands Protection Act.

The DEP agreed with Garrity and eventually approved the project, issuing a Superseding Order of Conditions for the project. Garrity also appealed the decision through the Superior Court.

Prior to the commission filing, Garrity had started building and repairing other parts of his backyard, including a stairway, a deck, granite steps, and stepping-stones.

According to Garrity’s attorney, Matthew Watsky, the Conservation Commission knew about the other projects throughout the first commission process. However once his client challenged the ruling, the commission issued an enforcing order to Garrity, mandating that he halt construction.

According to Watsky, his client tried to resolve this dispute at the Conservation Commission level, but was unable to.

Both issues went before the superior court. The ruling there was then appealed by the town and sent to the Supreme Judicial Court, where a decision was issued Monday.

According to the decision, the commission is not entitled to enforce its order of conditions due to the time delay in issuing the denial. As a result, the DEP’s Superseding Order of Conditions will be the governing permit for the work.

The court also ruled that the enforcing order with respect to the stairway, deck, and granite steps was not done arbitrarily or capriciously, and is enforceable through the Conservation Commission.

The problem of the steppingstones, which have since been removed, will go back before the Superior Court to resolve whether an enforcement order there is moot or not.

Conservation Commission Chairwoman Carolyn Neilsen did not have a comment on the judgment, and was reviewing the ruling on Monday.

Conservation Officer Cliff Prentiss had mixed feelings about the ruling, though it did help clarify the statute.

"I am pleased the SJC supported the commission’s regulatory action on the unpermitted coastal work but of course hoped it would also agree with the waiver aspect of the local bylaw," Prentiss said in an email. "The commission is made up of citizen volunteers and the 21 day voluntary waiver simply allowed some flexibility in scheduling hearing dates and the work load they produce. We are in the process of refining that voluntary action per the SJC’s guidance on the issue."

According to Hingham attorney Lauren Galvin, the decision helps solidify regulations for deadline waivers in the future.

"This is a novel point of law that hadn’t been decided before,” Galvin said. “They gave clarity to the statute ... no one understood the parameters [for waiving the deadline].”

The ruling also helped clarify standards for enforcement order review.

“It defined them a bit better, and have explained that standard for reviewing them was that the decision was not arbitrary or capricious,” Galvin said.

Watsky agreed that the SJC's decided properly regarding timelines for the Wetlands Protection Act, but said he was still digesting the ruling on enforcement orders.

Although Galvin said the enforcement order would go back to the Conservation Commission to be worked out, Watsky did not know if that would occur or when.

“We will have a discussion with the Conservation Commission when the superior court reconsiders the issues [of the steppingstones],” he said.

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