ELR Citation: ELR 21474
No(s). -4634 (Mass. Aug 3, 1988)

The court holds that the criminal penalty provisions of the Massachusetts Wetlands Protection Act are not unconstitutionally vague even though two separate provisions provide for penalties in different terms. One provision prescribes a fine of not more than $1,000 for each day of continuing violation, while another provision requires a fine of between $100 and $5,000. The court construes the two provisions to each impose restraints on the permissible fine, so that the total fine for all violations of the same character at the same site cannot exceed $ 5,000 and the fine for each violation cannot exceed $1,000. The court also holds that each day that unauthorized fill remains in the wetlands is not a separate offense. The presence of unauthorized fill is a continuing wrong warranting injunctive relief, but is not a criminal act. Thus, the potential disparity of fines under the two penalty provisions is not substantial.

The court orders a new trial because the trial court's ruling that each day the fill remains in place constitutes a separate offense improperly permitted evidence of violations occuring more than two years prior to the filing of this case, evidence that is barred under the applicable statute of limitations. The court holds that members of a conservation commission did not have authority under the Wetlands Protection Act to conduct a warrantless search for violations on defendant's premises. A conservation commission is not authorized under the Act to conduct enforcement activities and the Act does not even authorize warrantless searches by police officers explicitly authorized to conduct enforcement activities. The court holds that the evidence other than that obtained in the illegal search is sufficient to present a jury question.

Counsel for Plaintiff
James A. Paisley
Hakala, Lewis & Paisley
60 Commercial Wharf, Boston MA 02110
(617) 742-7040

Counsel for Defendant
James M. Burke
48 N. Pearl St., Brockton MA 02401
(617) 587-8900

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH, and O'CONNOR, JJ.