Massachusetts is a Home Rule state (Commonwealth, actually, but that's a separate issue). Our 351 cities and towns can pretty much legislate as they please, so long as the local action is not preempted. Our state Wetlands Protection Act specifically allows municipalities to enact their own wetlands bylaws. The result?
Today, our Appeals Court rejected an appeal from a property owner, and instead affirmed the Wayland Conservation Commission's conclusion that the owner's property contains wetlands as defined under the Wayland bylaw, even though the property is apparently missing one key indicator of the presence of wetlands under federal and state wetlands regulations, i.e., hydric soils.
Because the Court deferred to the Commission's interpretation of the bylaw and given also the deference bestowed by the courts on agency factual conclusions, I cannot complain that the decision was flawed. I can, however, still ask why we need 351 different wetland bylaws. Or why non-hydric soils with a lot of red maple and sheet flow several times a year warrant more protection in Wayland than in other locations.
Or why, if municipalities are creatures of the state (or Commonwealth!), they should be given so much independent legislative authority. At least those on the states' rights side of Federalism debates can point to the fact that states existed prior to adoption of the federal Constitution. Municipalities are different, however. As the Supreme Court stated:
"Municipal corporations are political subdivisions of the state, created as convenient agencies for exercise such of the governmental powers of the State as may be intrusted to them."
I suggest that we entrust (or intrust, as I guess we did in 1907) the exercise of too much regulatory authority to our municipalities.
To view Foley Hoag's Law and the Environment Blog please click here
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
