Winch Pond Trust Fafard Conservation Commission litigation

This case arises from the Conservation Commission’s 1999 denial of an order of conditions requested by the developer, Winch Pond Trust, seeking permission to construct a wetlands crossing bridge on Winch Street to ultimately construct a subdivision of between 40-45 homes. Winch Pond Trust appealed the Conservation Commission’s denial of the order of conditions to the Department of Environmental Protection (DEP) and obtained a Superseding Order of Conditions from the DEP allowing the work to proceed as proposed. (The developer also appealed the Commission’s decision under the bylaw to the Superior Court, and this certiorari bylaw appeal is pending.) The Town appealed the Superseding Order of Conditions issued by the DEP. In 2004, the Town opposed the Trust’s motion to substitute a revised plan showing certain changes to the wetlands crossing plan different from the plan first shown to the Conservation Commission in 1999. After hearing oral argument, the Administrative Law Judge ruled that the Trust must either proceed under the original plan or file a new notice of intent with the Conservation Commission. The Administrative Law Judge later denied the developer’s motion to submit the revised plan to the Commission for limited review. In January of 2005, counsel for the Trust indicated that the Trust would file a new notice of intent with the Conservation Commission on or about February 18, 2005, thus effectively starting over at the Commission level. The requirement that the applicant file a full new notice of intent before the Commission was a significant procedural victory for the Town.