The Massachusetts Supreme Judicial Court recently issued a noteworthy opinion regarding a property owners’ responsibility to remedy violations of the Wetlands Protection Act (the “Act”). The Court held that a local conservation commission may bring an enforcement action against a new property owner for up to three years following the property owners’ date of acquisition—even if the violation underlying the enforcement action was committed decades earlier by another party.
The case centered on the interpretation of the Act’s limitations provision—which some commentators have described as a statute of limitations and others have described as a statute of repose (see footnote 1 below). The statute reads, in relevant part:
“[N]o 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 death by which such real estate was acquired by such person.”
In the statute, “such person” refers to, “[a]ny person who purchases, inherits or otherwise acquires real estate upon which work has been done in violation of,” the Act.
At the trial level, the Superior Court ruled that the operative clause quoted above acts as a statute of limitations, and thus allows for an enforcement action to be brought only against the first purchaser (or heir, beneficiary or gift recipient) to take title to a piece of property subsequent to the commission of a violation of the Act. But, on appeal, the Supreme Judicial Court ruled that the clause must be interpreted as a statute of repose:
“Once [a] property again changes hands . . . the [Wetlands Protection Act] permits the commission to commence an action against the subsequent owner, so long as it does so within three years of the triggering event – the recording of the deed or date of death by which title was acquired.”
The case, Town of Norton Conservation Commission v. Pesa, arose out of an order of conditions that the Town of Norton Conservation Commission (the “Conservation Commission”) issued with respect to the subject property in 1979. The property’s then-owner, John Teixeira, reportedly failed to comply with the order of conditions, and the Conservation Commission notified him that he had exceeded the property’s fill limits in 1984.
John Teixeira’s widow, Ann Teixeira, sold the property to Robert and Annabella Pesa in 2014. The Pesas were aware of the outstanding violation; and, subsequent to purchasing the property, they disputed the need to correct the violation with the Conservation Commission. After the Pesas indicated that they did not intend to remove the excess fill at a public meeting in 2015, the Conservation Commission filed an enforcement action in 2016. As discussed above, while the trial court ruled in favor of the Pesas, the Supreme Judicial Court ruled that the Conservation Commission’s enforcement action was timely on appeal.
The Court noted that the Act, in this instance, created a statute of repose. “The repose, however, does not run with the land; rather, the repose is personal. It requires the commission to commence an enforcement action within three years of the recording of the deed (or date of death) pursuant to which the new owner acquires the property. After that period, the commission may not commence an action against that owner for preexisting violations. Once the property again changes hands, however, the Act permits the commission to commence an action against the subsequent owner, so long as it does so within three years of the triggering event – the recording of the deed or date of death by which title was acquired. Accordingly, because the commission commenced this enforcement action against the current owners within three years of the recording of the deed by which they acquired title, the Act does not bar the action.”
In ruling in favor of the Conservation Commission, the Supreme Judicial Court noted that the Legislature had rejected a proposed amendment to the Act that would have limited enforcement to the first change of ownership. It also wrote that, “[a]n interpretation that enforcement is possible only with respect to the first subsequent owner would leave conservation commissions without a means to enforce certain continuing violations, contrary to the Legislature’s apparent intent that wetlands be protected against ongoing violations.”
[1] A statute of repose is a time limit that cuts off a plaintiff’s ability to recover damages in a civil lawsuit. We most often think of statute of repose claims in the context of construction defect or design claims (which is six years), however, such claims may be brought in other areas of the law, i.e. product liability and medical malpractice.
