Posted by: Patricia Salkin | January 21, 2008

MA Supreme Court Finds Conservation Commission’s attempt to reopen hearing is invalid, rendering its decision untimely and without effect

The Conservation Commission commenced a public hearing on the dredging project on July 15, 2003, and continued it, with the applicant’s consent, to August 5, August 19, and September 16, when it closed the public hearing. On September 29, the Commission received a letter from abutting owners; on September 30 the Commission voted to reopen the hearing, took the letter into evidence, again closed the hearing, and voted to deny the application. On October 9, 23 days later, the Commission issued a written decision denying the requested order.             

The trial court ruled in favor of the applicant and the appeals court affirmed, holding that the September 16 decision to close the hearing triggered the 21-day period for decision (M.G.L. c. 131 § 40) and that the decision, 23 days later was untimely. There is no provision in the town bylaw for reopening a hearing that has been closed. The statute does not mention deemed approval as a remedy, but states that the applicant should seek relief from the Department of Environmental Protection. The late decision of the Commission is treated as without effect.  

Oyster Creek Preservation, Inc. v. Conservation Comm’n of Harwich, 874 N.E.2d 1104 (10/23/2007). 

The opinion can also be accessed at:

http://www.socialaw.com/slip.htm?cid=17574&sid=120  

This case summary is reprinted from Planning & Environmental Law (January 2008) with permission of the American Planning Association.  For more information about this publication see, http://www.planning.org/PEL/index.htm 


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