The Massachusetts Wetlands Protection Act provides that local conservation commissions must issue a decision on a request for an “order of conditions” (what we in Massachusetts for some reason call our wetlands permits) within 21 days of the hearing on the application. On Monday, in Garrity v. Conservation Commission of Hingham, the Supreme Judicial Court ruled that an applicant may waive the 21-day requirement. However, the SJC provided that, in order for such waivers to be valid, the following conditions must apply:
The waiver must be in writing, voluntary, and intentional
The duration of the waiver must be reasonable and of definite duration
Public notice must be provided
All of this seems reasonable, but the facts of Garrity are still noteworthy, because they demonstrate – as though further demonstration of this point were really required – just how coercive local permit-granting agencies such as conservation commissions can be. The Hingham Conservation Commission had a standard waiver form, which provided that:
"Due to the increasing number of public filings and the complexity of projects under review, the Hingham Conservation Commission hereby request[s] the below listed applicant to waive the mandated twenty-one (21) day decision deadline in order that each project receive a fair and thorough review."
The Commission also had a filing checklist, which included the waiver, and provided that the Commission would not accept incomplete submittals. In other words, agree in advance to the waiver or don’t bother to apply. Somehow, the Commission had the gall to assert that Garrity voluntarily waived his right to get a decision within 21 days. The SJC did not agree.
I wish that this case were an outlier, but instead it is all too typical of the way local agencies conduct business. As I’ve said before, this is why there’s a Tea Party.