Questions and answers concerning abutter notification under the Massachusetts Wetlands Protection Act

1 ^^^u 111 \\r\1\'?fHllfl Questions and Answers

j I 3l,20tj° ..ar the Massachusetts Wetlands Protection Act

Topics covered are:

1. Meaning of "all abutters within one-hundred feet."

2. The one-hundred feet measurement is made from the property line,
not from the limit of the proposed activity.

3. Limiting number of notifications in unusual cases.

4. Work done in a "right of way."

5. Whether notification^ must be sent on the same day as the NOI is
filed.

6. Having the Conservation Commission send notification for the
applicant.

7. How to prove that notification was given.

8. Return receipts and acknowledgments of hand delivery.

9. Defects in notification.

10. Compiling the list of abutters.

11. Abutters lists supplied by the Conservation Commission.

12. Notification requirement applies to state and local agencies.

13. Relation to local wetlands ordinances and bylaws.

14. Notifications to condominiums.

15. Stating where copies of the NOI may be examined.

16. Stating where copies of the NOI may be obtained.

17. Stating where information regarding the date, time, and place of
the public hearing may be obtained.

o Notification Form (suggested version)

o Affidavit of Service (suggested version)

Commonwealth of Massachusetts
Division of Wetlands and Waterways
One Winter Street
Boston, MA 02108

617-292-5695 April 8, 1994

Commonweatth of Massachusetts
Executive Office of Environmental Affairs

Department of
_ Environmental Protection

William F. Weld

Govamor

Trudy Coxe

S«cretary, EOEA

Thomas B. Powers ar^-»--i 1 ft 1 QQA

Acting Commit»ion«r /\pi. J. J. O; ^ZfZ>t

The recent amendment - known as the Menard Bill - to the Wetlands
Protection Act, requiring applicants to give notification to abutters
when filing a Notice of Intent, presents some difficult issues. The
Department of Environmental Protection (DEP) has consulted with the
Massachusetts Associatiort ^of Conservation Commissions (MACC) and seeks
to work with all interested parties to resolve these issues with an
eye toward the following interests:

• furthering the goal of the legislation, namely, to ensure
that abutters to sites where wetlands alterations are
proposed receive notification of the filing of the Notice of
Intent;

• protecting Conservation Commissions - especially those in
small towns, that might not have regular office hours or
paid staff - from excessive workload; and

• avoiding excessive burdens on applicants, particularly in
terms of delay, expense, and difficulty in achieving
compliance.

The text of the statute is set out below. The Questions and
Answers that follow examine some of the potential problems raised by
the statute and reflect DEP's current thinking on how to deal with
these problems. The real-world experiences of applicants, consul-
tants, abutters, and Conservation Commissions over the next few months
will help DEP to create a final regulation that successfully balances
the interests named above.

Chapter 472 of the Acts of 1993

Section 1 . Section 40 of Chapter 131 of the General Laws, as
appearing in the 1992 Official Edition, is hereby amended by inserting
after the first paragraph the following paragraph:

Any person filir.r a notice of intention with a
conservation commission shall at the same time give written
notification thereof, by delivery in hand or certified mail,
return receipt requested, to all abutters within one-hundred
feet of the property line of the land where the activity is
proposed, at the mailing addresses shown on the most recent
applicable tax list of the assessors, including, but not
limited to, owners of land directly opposite said proposed
activity on any public or private street or way, and in

One Winter Street • Boston, MassachusetU 02108 • FAX (617) 556-1049 • Telephone (617) 292-5500

DEP Guide to Abutter Notification April 8, 1994

another municipality or across a body of water. Said
notification shall be at the applicant's expense^ and shall
state where copies of the notice of intention may be
examined and obtained and where information regarding the
date, time and place of the public hearing may be obtained .
Proof of such notification, with a copy of the notice mailed
or delivered, shall be filed with the conservation
commission.

Section 2. The notification required by section one of this act shall
not apply to projects of the department of highways ,

Questions and Answers

Note: To avoid repetition of the phrase "the land where the activity
is proposed," we will use "the word "locus" to be synonymous with that
phrase. Also, "Notice of Intent" - which refers to either a full
Notice of Intent (Form 3) or an Abbreviated Notice of Intent (Form 4)
- sometimes will be abbreviated as "NOI."

1. What is the meaning of "all abutters within one-hundred feet**?

At first glance, this phrase may be confusing because abutters to
the locus - by definition - are within zero feet of the locus. That
is because to "abut" means "to touch." A closer reading, however,
shows that "abutters" is defined in the statute to include more than
just the owners of properties that touch the locus; it also includes
owners of properties separated from the locus by "any public or
private street or way... or across a body of water."

Accordingly, the qualification about one-hundred feet relates to
those "abutters" who are separated from "the land where the activity
is proposed" by a street, way, or body of water. If the separation is
one-hundred feet or less, notification is required. If the separation
exceeds one-hundred feet, no notification is required.

2. Is the one-hundred feet measurement made from the property line
or from the limit of the proposed activity?

All measurements are made from the property line of the locus.
For example, an activity is proposed on a large property, with the
farthest limits of the work set to take place two hundred feet from
the nearest property that touches the locus. Each owner of property
that touches the locus must receive notification by virtue of being an
abutter (except see Question #3 for a clarification) . The list of
abutters also includes owners whose land is separated from the locus
by a street, way, or body of water, where the separation is not
greater than one-hundred feet. Even though the total distance from
the edge of the proposed work to an abutter separated by a street,
way, or body of water might total (in this example) 300 feet, still
notification must be given because the abutting land is less than one-
hundred feet from the property line of the locus.

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DEP Guide to Abutter Notification April 8, 1994

3. Won't there be cases where "abutters** receive notification even
though they are far away from the proposed activity and therefore
totally unaffected by it - cases where hundreds of notifications must
be sent, with unreasonable costs in time for compiling the list and
money to pay for certified mail?

In most cases, notification will go to abutters who are within a
reasonable distance of the proposed activity. Even if the work takes
place off to one side of the locus or at the center of a large parcel
of land, the burden to the typical applicant will be manageable.

There are, however, foreseeable situations where genuine
hardships might arise. One case involves a long, narrow piece of land
such as a pipeline, a road or highway, or a railroad line where, in
each case, all the land is in a single ownership (contrast this with
Question #4). Another involves a large parcel of tens or hundreds of
acres. In such situations, if the proposed activity does not call for
a significant change in the use or character of the land, requiring
notification to every landowner who meets the statutory definition of
"abutter" would result in an unreasonable hardship.

For example, a public agency that owns a railroad bed wants to
restore service on a line that has fallen into disuse. This proposal
does not change the use or character of the land, as it has been used
as a rail line in the past. (By contrast, turning vacant land into a
residential subdivision would change its use and character.) To
restore railway service, it is necessary to make improvements that
require the filing of a Notice of Intent. If the agency owns the
entire strip of land that forms the railroad bed - tens and tens of
miles long and running through a dozen communities - it would be
unreasonable to require notification to every landowner who abuts that
property. A more reasonable approach is to target notification to an
appropriate selection of abutters in a manner designed to ensure that
the property owners who are most likely to be affected by the proposed
work are notified and have a chance to respond to the Notice of
Intent.

DEP suggests that for long, narrow properties, and for parcels of
land that are fifty acres or larger, notification could be targeted to
abutters who are located within a reasonable distance - but not less
than one thousand feet - from the limits of the proposed activity that
is subject to the Wetlands Protection Act.

4 . What happens when work is done by a person who has a '*right of
way** over land - for exzunple, in the case of a utility pipeline?

Sometimes, the applicant is not the property owner. One example
of this involves a utility company doing work affecting wetlands
located along a right of way. Such a right of way would be a long,
narrow strip of land that cuts across the properties of many
landowners. (Contrast this situation with the situation described in
Question #3 . )

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DEP Guide to Abutter Notification April 8, 1994

Because the right of way crosses many ownership boundaries, the
key is to identify the property lines that enclose the proposed work.
The fact that the utility company (in this example) has a right to lay
pipe over the land of many adjacent landowners in either direction is
not the issue; only the property lines enclosing the proposed work are
relevant. Abutters are determined by reference to those property
lines.

5. Must the notification be sent out on the same day that the Notice
of Intent is filed?

The statute requires that notification be given "at the same
time" as the filing of the NOI; DEP take this to mean that the
notification cannot be given (hand delivered or posted by certified
mail) later than the same day as the filing of the NOI. For example,
the notification could be\given a day or two before the filing of the
NOI. However, notification that is given after the day on which the
NOI is filed violates the letter of the statute.

Frequently, the date, time, and place of the public hearing are
not finalized by the time when the NOI is filed. Therefore,
notifications often will omit this vital information - forcing
abutters to track down someone (the applicant, the applicant's
representative, or the Conservation Commission) to get it. Whenever
this information is known in advance, therefore, the notification
should be sure to include it.

To better carry out the intent of the statute, DEP suggests that
notifications include two additional items. First, they should point
out that notice of the public hearing - including the date, time, and
place of the hearing - will appear in a local newspaper. Second, they
should point out that a similar notice will be posted at city or town
hall. In this way, abutters will have two ways of discovering any
information that wasn't included in the notification.

With this in mind, DEP suggests that the form set out at the end
of this document be used for giving notification. It can be filled in
or customized as necessary to reflect the name of the local newspaper
used for publishing notices of public hearings.

6. Can the Conservation Commission send notification on behalf of
the applicant?

According to the statute, the "person filing" the NOI shall give
the notification; and notification shall be given "at the applicant's
expense." Conservation Commissions are completely within their rights
to take no active part whatsoever in the notification process and
applicants are completely within their rights to exercise full control
over that process.

Some Conservation Commissions have virtually no resources besides
the time volunteered by Commissioners. Others are fortunate enough to
have their own offices, supplies, and full- or part-time staff. If a
Commission, for whatever reason, wishes to set up procedures for

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DEP Guide to Abutter Notification April 8, 1994

sending out notifications to abutters, it may do so and offer that
service to applicants.

7. The statute requires proof of notification to be filed with the
Conservation Commission. How and when should that be accomplished?

DEP believes that a good way for applicants to document
compliance is by preparing and submitting to the Conservation
Commission an Affidavit of Service. A suggested form for this
Affidavit is set forth at the end of this document. Submission of an
Affidavit of Service should create a rebuttable presumption that the
statute has been satisfied - in effect shifting the burden of
disproving compliance to anyone who asserts that notification was not
duly given.

When an NOI is filed, copies go to the appropriate DEP Regional
Office, which reviews the NOI for completeness. DEP will not issue a
file number for any NOI that is not accompanied bv an Affidavit of
Service. Accordingly, applicants should submit the Affidavit of
Service with each copy of the NOI so that the NOI will be deemed
complete and a file number can be issued.

Similarly, Conservation Commissions should consider adopting a
procedure by which it does not deem an NOI to be complete and entitled
to a public hearing unless an Affidavit of Service is included.

It is possible that, for whatever reason, an application might
proceed to a public hearing before proof of compliance with the
statute has been submitted. In that case, it is acceptable to prove
compliance halfway through the public hearing, at the end of the
hearing, or even after the hearing has been closed. Compliance is
compliance - whether it's demonstrated sooner or later.

Although DEP recommends the use of an Affidavit of Service, in
the absence of an official regulation requiring its use any evidence
of notification provided by the applicant to the Conservation
Commission that tends to prove compliance should be accepted by the
Commission. Similarly, any evidence submitted by others that tends to
disprove compliance should be accepted. Then, all the evidence has to
be considered and the Commission must make a judgment call about
compliance with the statute.

8. Must return receipts ("green cards**) be submitted as proof of
compliance? If the notification is hand delivered, must each
recipient's signature be submitted as proof of delivery?

No. Applicants should retain the return receipts and make them
available to the Conservation Commission if requested to do so.
However, an applicant cannot control the flow of return receipts; for
example, the person to whom the notification is addressed might not go
to the post office to retrieve the letter. Similarly, an applicant
may go to a home to deliver a notification by hand and, finding no one
there, safely deposit the letter indoors through a mail slot.

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DEP Guide to Abutter Notification April 8, 1994

Because it is not always possible to affirmatively demonstrate
receipt of notifications, DEP recommends the use of the Affidavit of
Service described above to create a rebuttable presumption of
compliance with the statute.

9. What if there is a defect in notification?

If there is a defect in notification, the consequences depend on
the nature of the problem. Outright failure - whether deliberately or
by oversight - to notify any abutters is a clear violation of the
statute. In that case, any Order of Conditions issued by the
Conservation Commission would easily be challenged and overturned.
The appropriate course, where there is a clear violation or no proof
of compliance, is to continue the public hearing to the next meeting
of the Conservation Commission in order to give the applicant an
opportunity to comply.

Some alleged defects may be less clear. For example, an abutter
may claim - and even demonstrate - that he or she did not receive
notification. Still, that person may show up at the public hearing,
be very familiar with the applicant's proposal, and participate fully.
In such a situation, the abutter has - one way or another - received
all the benefits of the notification requirement. The defect is, at
worst, a technicality and should not affect the Conservation
Commission's ability to conduct the public hearing and issue an Order
of Conditions.

10. How does an applicant find out the nzu&es and addresses of the
abutters?

According to the statute, the most recent applicable tax list of
the assessors should be used for this purpose. Unless the Conserva-
tion Commission has made alternative arrangements for applicants (see
Question #11) , applicants are responsible for examining the tax maps
and the tax records kept by the local assessors in order to compile
the list of abutters. Since the statute specifies that "abutters" in
another municipality are to receive notification, it may be necessary
to check the tax maps and records in more than one city or town.

11. Can applicants rely on a list of abutters supplied by the city or
town? Some municipalities already supply abutters lists under their
local wetlands ordinance or bylaw or under the Zoning Act.

As a service. Conservation Commissions - directly, or through
another part of municipal government such as the tax assessors or
planning office- may supply applicants with a list of abutters.
Mistakes may happen and they should be dealt with as described in
Question #9. A list supplied by the city or town, however, should be
accorded a presumption of being complete and accurate. Once again,
such a presumption shifts the burden of disproving compliance to
anyone who asserts that notification was not duly given.

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DEP Guide to Abutter Notification April 8, 1994

12. Does the new notification requirement apply to state and local
agencies, such as the DPW?

Only one public agency is excluded from the notification
requirement: the Massachusetts Highway Department. This is stated
explicitly in the legislation that created the new requirement. Local
departments of public works, and state agencies such as the MWRA, MDC,
Massachusetts Turnpike Authority, MBTA, etc., must comply with the
notification requirement whenever they file a Notice of Intent.

Keep in mind, however, that work done by public agencies may be
exempt under the Wetlands Protection Act. if work is exempt, then by
definition no Notice of Intent needs to be filed. If no NOI is filed,
then abutters will not receive notification of the proposed work - nor
of the claim of exempt status under the Wetlands Protection Act.

Also, notification is required only when filing a Notice of
Intent. A landowner filing a Request for Determination of
Applicability under the Wetlands Protection Act need not give
notification to abutters.

13. Many municipalities have a local wetlands ordinance or bylaw;
some of these local laws also require notice to abutters. Does the
state law overrule the local requirements?

Although local ordinances and bylaws are not affected at all by
this new state law, it is possible - depending on the exact
requirements of the local law - that one notification could satisfy
both obligations. However, if compliance with all state and local
laws requires two separate mailings to the same abutters, both sets of
laws must be met.

Conservation Commissions with local ordinances or bylaws should
review them to see if they are consistent with the statute. DEP
suggests consultation with the municipal lawyer for this purpose. If
the Commission is satisfied that one notification would cover both
bases, it may want to formally certify that conclusion so that
applicants can rely on the certification when limiting themselves to a
single round of notification.

14 . To whom should notification be sent when the abutter is a
condominium?

In a condominium - whether residential, commercial, or industrial
- the property has been divided into different components; each
component has a different owner. The buildings are turned into units
and each unit has a unit owner. The land is held in common by an
association of unit owners (often - but not always - in the form of a
trust) .

The new statute refers to abutters as being "owners of land." in
that case, since it is the association of unit owners that holds title
to the land, the party to whom notification should be sent is the
association and not the owners of each individual unit. It is the

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DEP Guide to Abutter Notification April 8, 1994

responsibility of the owners association to act on behalf of its
members .

The notice requirements of local wetlands ordinances and bylaws
(see Question #13) may require applicants to notify all of the unit
owners - contrary to the situation under state law. This may be due
to the explicit wording of the local law or because that is the
interpretation of the local law enforced by the Conservation
Commission. In any case, it is important to comply fully with the
notification requirements of both the Wetlands Protection Act and
local wetlands ordinances and bylaws.

15. The statute requires the notification to state where copies of
the NOI may be examined. Is there any rule about how this is carried
out?

The statute does not give any rule. Several options spring to
mind, however. The NOI might be made available for examination by:

- the applicant;

- the applicant's representative (e.g., an engineer);

- the Conservation Commission; or

some other municipal office (City/Town Clerk or library) .

Each option has various benefits and drawbacks:

a. Applicant or Applicant's Representative

Putting the burden on the applicant or the applicant's
representative is the simplest solution for the Conservation
Commission, which in many cases may be overburdened and have no
staff and no regular office hours. On the other hand, applicants
may find it difficult to carry out this obligation, especially
homeowners who do not hire an engineer and who would find it
disruptive to field telephone inquiries or have abutters knocking
on their door.

In addition, abutters might be intimidated by having to
contact a neighbor to learn more about the application,
especially if there are bad feelings about the proposed activity.
If the applicant is not a neighbor but an out-of-town developer,
it may be impractical for abutters to examine the NOI even if the
applicant agrees to make it available. Finally, one cannot
ignore the possibility of applicants refusing to play fairly by
not answering the telephone.

b. Conservation Commission

As noted, many Conservation Commissions do not have the
wherewithal to effectively carry out this duty. Putting the onus
on them, therefore, inconveniences both the Commission's
volunteer members (who will have to struggle to meet their
obligations) and the abutters (who may be frustrated in their
attempts to make connections with the Commission) . On the other
hand. Commissions that do have staff and regular office hours may

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DEP Guide to Abutter Notification April 8, 1994

be willing to take on this chore, knowing that they can give good
service to the public by doing so.

c. Other Municipal Offices

In some ways, this is the ideal solution. Typically, the
local Clerk's office, library, or other municipal office has
regular hours and full-time staffing. Neither DEP nor the
Conservation Commission, however, has jurisdiction over these
officials. They cannot require their assistance nor control
their diligence in providing services.

DEP recommends that each Conservation Commission analyze its
local situation promptly and vote to implement the method that best
suits its resources and needs. The Commission may wish to authorize
some party other than the, applicant - either the Commission or another
municipal official who ha^ indicated a willingness to assist the
Commission - to carry out this duty. If so. the applicant must follow
the procedures laid down by the Conservation Commission.

On the other hand, the Conservation Commission may choose not to
authorize itself or some other municipal official to make the NOI
available for examination. In that case, this responsibility remains
with the applicant who then should name either the applicant or the
applicant's representative in the notification.

With this in mind, DEP suggests that the form set out at the end
of this document be used for giving notification. It can be filled in
or customized as necessary to reflect the decisions made about
arrangements for examining the NOI. Applicants should contact the
Commission before preparing their notification to see if there is a
customized notification form that must be used.

16. The statute requires the notification to state where copies of
the Notice of Intent may be obtained. Is either the Conservation
Commission or the applicant responsible for making a copy of the NOI
for anyone who requests one?

Conservation Commissions already should have in place appropriate
procedures for making public records - including NOIs - available to
interested persons for examination and copying.

DEP believes that it would place an unreasonable burden on
applicants to require them to make copies of the NOI for every abutter
for free - especially when, in some cases, there could be dozens of
abutters. NOIs can be lengthy and include large, dif f icult-to~
reproduce plans; making dozens of copies would be unduly expensive and
time-consuming .

DEP, therefore, suggests the following:

• Applicants may choose to provide abutters with copies of the
NOI. In that case, applicants have the option of imposing a

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DEP Guide to Abutter Notification April 8, 1994

reasonable charge, not to exceed the cost of reproduction,
for each copy.

• Applicants may choose to direct abutters to their
representative - typically an engineer - for copies of the
NOI . Again, the representative has the right to impose a
reasonable charge, not to exceed the cost of reproduction,
for each copy.

• Applicants (or their representatives) may give a spare copy
of the NOI to an abutter for the abutter - at his or her own
expense - to copy and then return.

With this in mind, DEP suggests that the form set out at the end
of this document be used for giving notification. It can be filled in
or customized as necessary to reflect the decisions made about
arrangements for obtaining copies of the NOI.

17. The statute requires the notification to state where information
regarding the date, time, and place of the public hearing may be
obtained. How should this be carried out if the date, time, and place
are not contained in the notification itself?

As seen in Question #5, the notification to abutters may - or may
not - contain details on when and where the public hearing will take
place. If the applicant gives a notification that does not contain
those details, the notification must state where the information may
be obtained.

The considerations here echo those discussed in Question #15.
Once again, there are various benefits and drawbacks to the different
solutions. Once again, DEP recommends that each Conservation
Commission analyze its local situation promptly and vote to implement
the method that best suits its resources and needs.

The Commission may wish to authorize some party other than the
applicant - either the Commission or another municipal official who
has indicated a willingness to assist the Commission - to carry out
this duty. (A telephone line with a recorded message might serve the
purpose.) If so. the applicant must follow the procedures laid down
bv the Conservation Commission.

On the other hand, the Conservation Commission may choose not to
authorize itself or some other municipal official to provide
information regarding the date, time, and place of the public hearing
for the purpose of compliance with the statute. In that case, this
responsibility remains with the applicant who then should name either
the applicant or the applicant's representative in the notification.

With this in mind, DEP suggests that the form set out at the end
of this document be used for giving notification. It can be filled in
or customized as necessary to reflect the decisions made about
arrangements for supplying information regarding the date, time, and

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DEP Guide to Abutter Notification April 8, 1994

place of the public hearing for the purpose of compliance with the
statute. Applicants should contact the Commission before preparing
their notification to see if there is a customized notification form
that must be used

Page 11

Notification to Abutters Under the
Massachusetts Wetlands Protection Act

In accordance with the second paragraph of Massachusetts General Laws Chapter
131, Section 40, you are hereby notified of the following.

A. The name of the applicant is

B. The applicant has filed a Notice of Intent with the Conservation Connnission

for the municipality of

seeking permission to remove, fill, dredge or alter an Area Subject to Protec-
tion Under the wetlands Protection Act (General Laws Chapter 131, section 40)

C. The address of the lot where the activity is proposed is

D. Copies of the Notice of Intent may be examined at.

between the hours of and on the following days of the week:

For more information, call: (.

Check One: This is the applicant D, representative D, or other D (specify):

E. Copies of the Notice of Intent may be obtained from either (check one) the
applicant LJ, or the applicant's representative D, by calling this telephone

number ( ) - between the hours of and on

the following days of the week: .

F. Information regarding the date, time, and place of the public hearing may be
obtained from

by calling this telephone number ( ) - between the

hours of and on the following days of the week:

Check One: This is the applicant D, representative D, or other D (specify):

NOTE: Notice of the public bearing, including its date, time, and place, will be
published at least five (5) days in advance in the

(name of newspaper)

NOTE: Notice of the public hearing, including its date, tine, and place, will be
posted in the City or Tovm Hall not less than forty-eight (48) hours in advance.

NOTE: Tou also nay contact your local Conservation Connission or the nearest Depart-
Bent of Environnental Protection Regional Office for aore inforvation about this
application or the wetlands Protection Act. To contact DEP, call:

Central Region: 508-792-7650 Northeast Region: 617-935-2160

Southeast Region: 508-946-2800 Western Region: 413-784-1100

AFFIDAVIT OF SERVICE

Under the Massachusetts Wetlands Protection Act

(to be submitted to the Massachusetts Department of
Environmental Protection and the Conservation Commission

when filing a Notice of Intent)

I, r insert name of person making the Affidavit!, hereby certify
under the pains and penalties of perjury that on r insert datel I gave
notification to abutters in compliance with the second paragraph of
Massachusetts General Laws Chapter 131, Section 40, and the DEP Guide
to Abutter Notification dkted April 8, 1994, in connection with the
following matter:

A Notice of Intent filed under the Massachusetts Wetlands
Protection Act by [insert name of applicant] with the
r insert name of municipalitvl Conservation Commission on
r insert datel for property located at [insert address of
land where the work is proposed 1 .

The form of the notification, and a list of the abutters to whom
it was given and their addresses, are attached to this Affidavit of
Service.

Name Date