Appeals court reviews Littleton wetlands permits after disputed delineations and emergency-access arguments

A multi‑part dispute over wetlands permitting in Littleton reached the Massachusetts Appeals Court in two related appeals that concern (1) a local bylaw waiver and condition set by the Littleton Conservation Commission and (2) a Department of Environmental Protection (DEP) adjudicatory record that questioned wetland delineations on a parcel next to Fort Pond.

Appellants argued that the conservation commission erred by granting a waiver from a municipal "no‑disturb" buffer to allow widening of a cart path (proposed as a secondary driveway) rather than requiring use or upgrading of existing road access (Cottage Way or the main driveway from Shagbark). The appellants emphasized the commission’s waiver standard — which permits regulatory waivers "when, in the judgment of the commission, such action is in the public interest, necessary to avoid a taking, necessary to prevent a safety hazard, or water dependent" — and said the commission misconstrued its own standard by finding the project "in the public interest" without required findings that the alternative was the least environmentally damaging practicable alternative.

The town and the property owner countered that the conservation commission reasonably exercised its discretion: the record contains testimony from the fire chief and neighbors about site access, and the commission considered and rejected alternatives, including widening the existing driveway in locations that would require more ledge and tree removal or otherwise do more harm to the resource area. The commission and the judge concluded that the cart‑path upgrade was the least environmentally damaging practicable alternative in the public safety context.

The DEP‑level appeal likewise focused on whether the presiding officer at OADR should have ordered a site visit and re‑delineation addressing wetlands flags beyond the single pond‑edge flag the parties actually corrected. Appellants argued that when credible evidence of an erroneous delineation was presented, the presiding officer and DEP were obliged under 310 CMR 10.55(2)(c)(2) to evaluate the wider set of flags; that obligation, appellants said, made a broader site review necessary. DEP and the property owner said the presiding officer acted within discretion: the record contained explanations from multiple consultants, the corrected delineation addressed the key issue the parties actually disputed, and DEP staff who inspected the site found no unauthorized work requiring reversal of the superseding order of conditions.

Both sides addressed alleged on‑site work during the appeals. Appellants said tree removal and other activities occurred while administrative appeals were pending and that the issuance of a superseding order of conditions did not authorize unreviewed work; the DEP and owner said inspection evidence showed only minor vegetation maintenance and that much of the activity occurred outside the 100‑foot wetland jurisdiction. DEP witnesses testified that some work could be done without a permit and that no stumping or major disturbance within jurisdiction was observed during on‑site inspections.

The court heard extensive technical testimony and took the appeals under advisement. The judges raised questions about regulatory interpretation (the meaning of the local waiver clauses, the proper standard of review and the presiding officer’s discretion at OADR) and about whether the record contained substantial evidence to support the commission’s and DEP’s determinations.

Discussion vs. action: Oral argument only; the court took both appeals under advisement.