Wetlands and Waterways Program
DWW Policy 89-1

Appeal Stays: Stay of Requests for Adjudicatory Hearings
in Wetlands Permit Cases when an Order of Conditions has been
Denied under a Local Wetlands Bylaw (Zoning or Non- Zoning)(DWW Policy 89-1)

Issued: June 16, 1989
Revised: March 1, 1995

The Department currently has many requests for adjudicatory hearings involving wetland permit cases.

Many Massachusetts municipalities (more than 100) have adopted and implement their own wetland bylaws, both zoning and non- zoning. Review of these permits is outside DEP's Chapter 131, s.40 jurisdiction. Some bylaws afford protection to interests not mentioned in the state law; some bylaws protect the same interests more stringently. A number of the requests for adjudicatory hearing are filed for projects which have been denied under a local bylaw. Even if the Department were to go forward, complete the adjudicatory process and issue Final Orders approving each of the projects, none of these projects can go forward until each independently receives approval under the municipality's bylaw. Therefore, until there is a resolution of the bylaw denial, further proceedings by the Department are futile.

In order to conserve and better utilize administrative resources, the Department will stay administrative action on any Request for an Adjudicatory Hearing in a wetlands permit case when the project has been denied under a local wetlands bylaw, whether that bylaw is a wetlands zoning bylaw or a wetlands non-zoning bylaw. (Note that the stay will be implemented only at the adjudicatory hearing level; this policy will not apply to requests for Superseding Orders of Conditions.) Action by the Office of Administrative Appeals will be stayed on an appeal of an agency action involving either a Superseding Order of Conditions or a Superseding Determination of Applicability.

Should the denial under the town bylaw be appealed to Superior Court, the Department's technical review of the project is embodied in the Superseding Order of Conditions. If the denial under the bylaw is not appealed within the appropriate time frame that denial is final. No work can take place under such a denial. If an applicant fails to diligently pursue approval of the project under the local bylaw, the Notice of Intent shall expire as provided in 310 CMR 10.05(4)(g).

Upon proof of the project's approval under the local bylaw, the Department will go forward with the adjudicatory proceeding. All Requests for Adjudicatory Hearings will remain stayed in the chronological order in which they were filed.

[Contact: Alex.Gagnon@state.ma.us]
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Updated December 14, 1998