Wetlands Violation Trips Up New Owner

Buyer Ordered to Restore Property
By Christopher R. Vaccaro
Special to Banker & Tradesman

Last August in Con­servation Com­mission of Norton v. Pesa, the Supreme Judicial Court put buy­ers on notice of the risk of ignoring unresolved wetlands orders of con­ditions.

The Massachusetts Wetlands Protection Act generally prohibits removing, filling, dredging and altering wetlands without or­ders of conditions issued by local conserva­tion commissions. Property owners must record these orders with the registry of deeds to put future buyers and lenders on notice of wetlands issues. After the work is done, owners must obtain and record certif­icates of compliance, showing that the work was properly completed.

In 1979, John Teixeira proposed to build a store with a sanitation system and parking lot in Norton. Teixeira’s project impacted protected wetlands. The Norton Conserva­tion Commission issued an order of condi­tions allowing Teixeira’s project, but limit­ing fill near the wetlands. In 1984 and 1987, the commission sent letters to Teixeira, ex­pressing concerns that he had exceeded the fill limits under the order of conditions. Teixeira apparently disregarded those let­ters. He transferred the property to himself and his wife Ann in 1996, then died in 2006, leaving Ann as the sole owner.

13K SF of Fill
Ann agreed to sell the property to Robert and Annabella Pesa in 2014. Before the clos­ing, an attorney discovered the order of conditions, and asked the Norton Conserva­tion Commission to issue a certificate of compliance. The commission refused, claiming that Teixeira had deposited 11,000 more square feet of fill than allowed under the order of conditions. The Pesas pro­ceeded with the closing anyway in 2014. After the Pesas bought the property, the commission sent them an enforcement order asserting that 13,000 square feet of fill had been installed illegally and demanding that they restore the affected areas to their “original condition.” The Pesas did not com­ply with or contest the order.

In 2016, the Conservation Commission sued the Pesas in Superior Court for the vio­lation, seeking injunctive relief and civil penalties. The Superior Court judge ruled against the commission, citing a statute of repose in the Wetlands Protection Act, which provides: “Any person who . . . ac­quires real estate upon which work has been done in violation of the provisions of this section or in violation of any order issued under this section shall forthwith comply with any such order or restore such real es­tate to its condition prior to any such viola­tion; provided, however, that no action, civil or criminal, shall be brought against such person unless such action is commenced within three years following the recording of the deed or the date of the death by which such real estate was acquired by such person.”

The judge determined that this statute of repose barred the commission from enforce­ment actions three years after Teixeira transferred the property to himself and Ann in 1996.

The commission appealed, and the Su­preme Judicial Court took up the case. The commission argued that the statute of re­pose only bars enforcement actions against a particular buyer after the three-year pe­riod expires, but it does not bar enforce­ment against a subsequent buyer until an­other three years expire after the subsequent buyer acquired the property. In other words, they argued the Wetlands Pro­tection Act’s three-year statute of repose re­sets at zero and begins to run again and again for each subsequent buyer ad infini­tum.

Statute of Repose ‘Does Not Run With The Land’
The SJC agreed with the commission’s ar­gument, noting that the statute allows en­forcement actions against “any person” who acquires land that violates the statute within three years after “such person” acquires the land. Therefore, according to the SJC, the statute does not bar enforcement actions against subsequent buyers of the land, even if no enforcement action was brought against any prior buyer within the three-year period. The SJC ruled that the statute of re­pose does not “run with the land,” but is in­stead “personal” as to each buyer. It set aside the judgment in favor of the Pesas and remanded the case to the Superior Court for further proceedings.

Given this decision, buyers must take care when purchasing land subject to wet­lands orders of conditions, even if the or­ders were issued decades ago for work long since completed and there have been nu­merous intervening owners since. When re­corded orders of conditions are discovered during routine title searches, buyers should make sure that certificates of compliance are obtained and recorded prior to closing.

Buyers who fail to do this assume the risk, as the Pesas did, that they will be sad­dled with the responsibility and cost of fix­ing wetlands messes caused by prior own­ers.

Download the article as seen in Banker & Tradesman on October 25, 2021. Learn more about Christopher R. Vaccaro.