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Citizens for Responsible Envtl. Management v. Attleboro Mall, Inc.

ELR Citation: 18 ELR 20118
Nos. No. 4383, 511 N.E.2d 562/26 ERC 1691/400 Mass. 658, (Mass., 08/12/1987)

The court holds that the grandfather clause in regulations enacted in 1983 under the Massachusetts Wetlands Protection Act (WPA) excluding projects already in the regulatory pipeline from the more stringent 1983 regulations is valid. The state Department of Environmental Quality and Engineering (DEQE) adopted regulations in 1983 prohibiting any project that would cause the loss of more than 5,000 square feet of bordering vegetated wetlands, but included a grandfather clause to ensure that projects proposed prior to the effective date of the 1983 regulations would be subject to the case-by-case review authorized under the prior regulations. The court holds that the grandfather clause does not violate DEQE's statutory mandate under the WPA. DEQE's regulations are entitled to substantial deference, since the WPA vests the DEQE with broad authority to protect wetlands. DEQE's interpretation was consistent with the preface to the regulations and the WPA.

The court holds that DEQE's decision under the case-by-case review authorized by the prior regulations to allow filling at Sweeden's Swamp was proper. In adopting the 1983 regulations, DEQE did not decide that case-by-case review was incapable of determining whether a project is consistent with the interests of the WPA. The court holds that the developer was not required to seek de novo review of proposed revisions to the project by filing a new notice of intent with the city conservation commission. Although the revisions were substantial, they reduced the adverse environmental impacts of a project that the city had previously approved.

[Related federal cases are published at 16 ELR 20033 and 20795 and 18 ELR 20001.]

Counsel for Plaintiffs
F. Anthony Mooney
Hale & Dorr
60 State St., Boston MA 02109
(617) 742-9100

Counsel for Defendant
R. Robert Popeo, Michael S. Gardener
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo
One Financial Ctr., Boston MA 02111
(617) 542-6000

Before HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH, and O'CONNOR, JJ.