Shutesbury is proposing new wetland regulations that may not be legally defensible

Eric

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Apr 16, 2023
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For anyone with development projects in central Massachusetts, be advised that the Shutesbury Conservation Commission is considering new wetlands regulations that some are considering to be excessively restrictive. There's currently disagreement among legal experts about whether the new regulations would exceed the authority of the 1987 wetlands bylaw that they're based on, which would make them vulnerable to appeals and potential litigation.

Here are the potential legal problems with the draft regulations, as summarized by attorney Gregor McGregor:

“These regulations announce that virtually nothing will be allowed in vernal pools or the nearby area called the aura. In other words, there’s a presumed prohibition,” McGregor said. “It’s unusual. I’ve never seen it that you need a permit to do anything new in the aura, but we can’t let you do it.”

The burden of proof on applicants would be revised to provide a higher bar of “clear and convincing evidence.” “In our opinion, this is beyond the authority in the bylaw, which is not that strict. That is holding applicants to a stricter standard than the bylaw allows,” McGregor said.

Regulations would also prohibit any impact by anybody on listed endangered species in Massachusetts. “This makes the commission into a wildlife and plant protection board, and is likely to be challenged as being beyond the authority of the bylaw,” McGregor said, adding that the state endangered species program “is not this draconian and unrealistic.”

McGregor is recommending that the Conservation Commission scrap the draft regulations altogether and instead replace its existing 1987 bylaw with the model wetlands bylaw from the Massachusetts Association of Conservation Commissions, which has been approved by the state attorney general. This is a step that's been taken by many other towns and would be considered safer from a legal perspective.
 
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Finding the right balance between environmental protection and development is vital. The proposed wetlands regulations in central Massachusetts appear overly restrictive and could lead to legal challenges. The attorney's suggestion to adopt the model wetlands bylaw from the Massachusetts Association of Conservation Commissions seems like a sensible alternative to ensure both conservation and responsible development.
 
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