Christopher R. Vaccaro

Many of the finest real estate developments in Massachusetts sit on spacious lots with well-tended yards extending to the edge of scenic wetlands. These properties are impressive, but nitrogen pollutants from their septic systems and fertilized lawns seep into nearby harbors, estuaries and ponds. The nitrogen promotes algae growth that ruins wetland ecologies by fouling waters and driving out marine life. Economic loss follows when shellfish beds are closed because of contamination. 

Recognizing these problems, local conservation commissions administer the Massachusetts Wetlands Protection Act to require that septic systems and lawns are located away from wetlands. Conservation commissions have authority to enforce this statute and the related regulations, including authority to force violators to restore properties to their original conditions. A Mattapoisett homeowner learned this the hard way, when he ignored wetlands restrictions and expanded his lawn too close to a nearby salt pond. 

Daniel Craig owned a home in a subdivision on Eel Pond in Mattapoisett. His 2-acre lot was subject to wetlands orders of conditions, limiting his lawn size to 10,000 square feet and imposing a 75-foot “no disturbance” zone between the developed portion of his property and the wetland. Craig legally installed a swimming pool and outdoor cooking area after consulting with the conservation commission in 2012. But he didn’t stop there. He also removed the natural vegetation within the “no disturbance” zone to plant 20,000 square feet of lawn and landscaping, without permits and in violation of the orders of conditions and the Wetlands Protection Act. 

If Craig thought that his transgressions would go undetected, he failed to consider the “eyes in the sky” available to concerned citizens in the 21st century. The Buzzards Bay Coalition, using Google Earth images, discovered Craig’s activities, and brought them to the conservation commission’s attention in 2014. The Buzzards Bay National Estuary Program produced satellite image analysis showing the timelines and extent of Craig’s alterations. The conservation commission was predictably agitated. After months of negotiations failed to produce a resolution, the commission issued an enforcement order in 2015, requiring Craig to restore his property to its prior condition. The order included nearly three pages of instructions and special orders detailing the restoration plan. 

Final Decision 

Craig sued the commission in Superior Court, claiming that its enforcement order was vague and ambiguous and that the original orders of conditions were no longer in effect. The commission answered the lawsuit. The Buzzards Bay Coalition and others intervened to support the commission. The parties filed cross-motions asking the court to render a judgment on the pleadings alone, without the need for time-consuming discovery or a trial. The court obliged, and upheld the commission’s enforcement order. Craig appealed. 

The Appeals Court affirmed the judgment against Craig this month. In considering Craig’s appeal, the court noted that for Craig to prevail against the commission, he must prove that it acted arbitrarily and capriciously in issuing the enforcement order. This is a difficult burden for property owners who challenge decisions of government agencies. It requires owners to prove that there is no reasonable ground to support the agency’s decision. Craig was unable to meet this burden. 

The Appeals Court ruled that the enforcement order against Craig was not vague or ambiguous, because it offered sufficient guidance for Craig to restore his property. As to Craig’s argument that the original orders of conditions were no longer in effect, the Appeals Court held that regardless of the status of the orders of conditions, Craig’s actions independently violated the Wetland Protection Act, justifying the enforcement order.  

Craig now faces the humbling task of removing nearly one-half acre of lawn and landscaping, and restoring the natural buffer between his home and Eel Pond. Considering his utter disregard for the Wetlands Protection Act, he can expect little sympathy.

Christopher R. Vaccaro is a partner at Dalton & Finegold in Andover. His email address is cvaccaro@dfllp.com.