Rights of Appeal

Your Rights of Appeal on Wetland Permits

 

You have a right to be heard

Regulatory agencies at the local, state and federal levels provide residents the opportunity to comment upon and appeal decisions to issue permits for construction and other activities that affect the environment and your personal property rights.

Projects that alter wetlands, or are in the buffer zone, may require a permit under the state Wetlands Protection Act (overseen by the Town’s Conservation Commission) and possibly a permit under any local wetlands bylaw (also overseen by the Town’s Conservation Commission). If the project involves the filling of certain wetlands, a state Chapter 91 Waterways License (overseen by the Massachusetts Department of Environmental Protection), and a US Army Corps permit (for wetlands filling) may also be required. These latter permits are required for the construction or expansion of docks.

If a commercial development meets a certain threshold (of square footage or impervious area) it may require a permit from the town Planning Board under the Site Plan Review process. The Planning Board may focus on a wide range of issues including parking, setbacks, building limits, percent impervious, etc. Planning boards also require the submission and approval of subdivision plans.

Construction and upgrade of septic systems require permits from Boards of Health.

If a proposed project concerns you, you should attend any public meetings or hearings to understand what is being proposed. During a public hearing you should voice your concern, and follow-up with written comments before the board issues its decision. It is important to tailor your comments as to whether or not you think the project meets the board’s regulations (you can get a copy of the board’s regulations from Town Hall). “Not in my backyard objections are generally not received unless the project does not conform with the boards regulations. Wetland bylaws focus on protecting wetland resources, including shellfish and eelgrass beds. The state waterways license program especially focuses on navigation and access issues, including infringement on abutter’s rights. Planning Board permits typically focus on setback, building size limits, traffic and parking, stormwater discharge, among other factors. Boards of Health ensure that septic systems comply with Title 5 design standards.

Generally abutters (adjoining property owners) are given more consideration and appeal rights under state and local regulations. If the town issues a permit that you believe does not adequately protect wetland resources according to the state law or local bylaw, you may appeal the local decision if you are an abutter. Abutters are generally required to be notified by registered mail for certain types of permits. Failure to be notified, if required, could be the basis of an appeal under some regulations. Ten residents who are not abutters may join together to also make a valid appeal to wetlands permit decisions. Wetlands Appeals must be made in writing within 10 business days using a particular form. Appeals under the Massachusetts Wetland Protection Act decisions must be made in writing to DEP and accompanied by a fee ($100 to $200 depending on the decision being appealed). Appeals under a local bylaw must be made to Superior Court, and generally require the services of an attorney.

During the public comment period for a Chapter 91 waterways license, and Army Corps permit process, it is important that comments and appeals also be submitted according to the deadline requirements.

Both the Planning Board and Conservation Commissions are supposed to ensure that stormwater from the property is adequately treated to ensure that it does not adversely affect resources.

Most state, local and federal permits do not adequately address cumulative impacts of many similar types of activities in an area. This is why it is important that tones update their Zoning, Master Plans, and Open space plans as needed to ensure that new development is meeting the town’s goals of minimizing impacts to the environment.

Additional Resources

MUNICIPAL MANAGEMENT FOR THE FUTURE: A Report to the Mattapoisett Board of Selectmen (pdf file).

THE LIMITS OF MUNICIPAL POWER presented as part of HANDLING TROUBLESOME ZONING ISSUES (pdf file).

SRPEDD’s The Planning Board Development Review Process An Abutter’s Guide.