Mass. High Court: Three-Year Clock for Wetlands Protection Act Enforcement Actions Re-Starts With Every Sale of Property
The Massachusetts Supreme Judicial Court (SJC) recently handed a victory to a conservation commission seeking to impose an enforcement order on a property owner who bought land containing unauthorized fill placed there by a prior owner 35 years before. The SJC ruled that the “statute of repose” in the state Wetlands Protection Act, which protects property owners from enforcement for prior violations in certain situations, does not run with the land.
The Wetlands Protection Act, M.G.L. c. 131, § 40 (the Act), generally prohibits removing, filling, or altering wetlands without an order of conditions from a local conservation commission. The Act also provides that “[a]ny person” who acquires property on which work has been done in violation of the Act shall restore the property to its original or permitted condition; but the Act limits the time period during which an enforcement action against “such person” may be brought. Specifically, an action must be brought within three years of the recording of the deed (or