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Lovequist v. Conservation Com. of Dennis

Supreme Judicial Court of Massachusetts

May 8, 1979, Argued ; August 21, 1979, Decided

No Number in Original

Opinion

 [*8]   [**860]  In this case we review the decision of the conservation commission of the town of Dennis under a local wetlands protection by-law denying the plaintiffs' application to construct an access road over an old cranberry bog. This action is brought for relief in the nature of certiorari  [*9]  pursuant to G. L. c. 249, § 4. See Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37 (1977). We affirm.

We begin by summarizing the pertinent [***4]  facts. The plaintiffs are the owners of a forty-acre tract of land on the north side of the town of Dennis. Part of an area locally known as "Simpkins Neck," 2 the tract consists of approximately ten acres of marshland, 3.93 acres of overgrown cranberry bog, and twenty-six acres of wooded upland. The plaintiffs acquired this land parcel-by-parcel over a period of approximately ten years at a total cost of $ 38,200.

It is the plaintiffs' desire to subdivide the upland located on the Neck into house lots for single family residences. To this end, the plaintiffs on July 11, 1975, filed with the conservation commission of the town of Dennis (commission) a notice of intent to construct a road over adjoining marshlands in order to facilitate service to this proposed subdivision. At the present time, an old dirt road which crosses [***5]  this area between the mainland and the Neck serves as the only access to and from the subject parcel. The plaintiffs consider this road inadequate, both in terms of construction and design, to furnish access to the Neck even for a limited use such as a single house.

By filing a notice of intent, the plaintiffs triggered commission proceedings under G. L. c. 131, § 40, the Commonwealth's Wetlands Protection Act, and under the town's cognate by-law, art. 15. 3 [***6]  Public hearings  [**861]  were held on  [*10]  July 24, 1975, and on various dates later in the year. On December 2, 1975, the commission denied the plaintiffs' application under art. 15 because it believed that the road construction would have a "detrimental impact on the environment of both subject and contiguous lands." 4

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379 Mass. 7 *; 393 N.E.2d 858 **; 1979 Mass. LEXIS 902 ***; 9 ELR 20730

A. Lawrence Lovequist & another, 1 trustees, v. Conservation Commission of Dennis

Prior History:  [***1]  Barnstable.

Civil action commenced in the Superior Court on December 30, 1975.

The case was heard by Keating, J.

After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Disposition: So ordered.

CORE TERMS

by-law, wetlands, zoning, plaintiffs', regulation, groundwater, conservation commission, Protection Act, peat, road construction, land use, removal, notice, fill, commission's decision, appeals board, water supply, access road, Environmental, municipal, pollution, hearings, Neck

Governments, Local Governments, Charters, Home Rule, Ordinances & Regulations, State & Territorial Governments, Relations With Governments, Business & Corporate Compliance, Real Property Law, Zoning, Ordinances, Real Property Law, General Overview, Environmental Law, Natural Resources & Public Lands, Wetlands Management, Administrative Law, Separation of Powers, Constitutional Controls, Formal Adjudicatory Procedure, Impartial Decisionmaker, Participation in Prosecution, Judicial Review, Standards of Review, Substantial Evidence, Constitutional Law, Bill of Rights, Fundamental Rights, Eminent Domain & Takings, Inverse Condemnation, Regulatory Takings, Land Use & Zoning, Eminent Domain Proceedings, Eminent Domain Proceedings, Remedies