General Laws of Massachusetts - Chapter 21A Executive Office of Energy and Environmental Affairs - Section 11C Prohibition on alteration or pollution of rivers and streams; scenic and recreational classifications; restraint of violations; unreasonable use restriction petitions; uncompensated taking hearings; damages

Section 11C. The commissioner, with the approval of the stewardship council, may from time to time, for the purpose of promoting the public safety, health and welfare, and protecting public and private property, wildlife, fresh water fisheries, and irreplaceable wild, scenic and recreational river resources, adopt, amend, modify, or repeal orders regulating, restricting or prohibiting dredging, filling, removing or otherwise altering, or polluting the scenic and recreational rivers and streams of the commonwealth. The notice required by section two of chapter 30A as a condition precedent to the adoption or amendment of any regulation shall be given to each assessed owner of any land on the banks of any such river or stream. In this section, the term “scenic and recreational rivers and streams of the commonwealth” shall mean, rivers and streams of the commonwealth or portions thereof, and such contiguous land not to exceed one hundred yards on either side of the natural bank of such river as the commissioner reasonably deems it necessary to protect by any such order.

The commissioner, with the approval of said board, may, for the purpose of protecting the scenic and recreational rivers and streams of the commonwealth, provide for the restriction and classification of the waters of said rivers and streams for scenic or recreational purposes. Signs indicating such restriction or classification shall be posted by the department at reasonable intervals along the banks of said rivers and streams.

Upon adoption of any such order or any order amending, modifying or appealing the same, the commissioner shall cause a copy thereof, together with a plan of the river or stream or portion thereof affected and a list of the assessed owners of such lands, to be recorded in the registry of deeds for the county wherein said river or stream is located, and shall mail a copy of such order and plan to each assessed owner of such lands affected thereby. Such order shall not be subject to the provisions of chapter 184. Any person who violates any such order shall be punished by a fine of not less than ten dollars nor more than $100, or by imprisonment for not more than 6 months, or both.

The superior court shall have jurisdiction in equity to restrain violations of such orders.

Any person having a recorded interest in land affected by any such order, may, within 90 days after receiving notice thereof, petition the superior court to determine whether such order unreasonably restricts the use of his property as to deprive him of the practical uses thereof and which constitutes an unreasonable exercise of the police power so as to become the equivalent of a taking without compensation. If the court finds the order to be unreasonable, the court shall enter a finding that such order shall not apply to the land of the petitioner; provided, however, that such finding shall not affect any other land than that of the petitioner. The commissioner shall cause a copy of such finding to be recorded forthwith in the proper registry of deeds or, if the land is registered, in the registry district of the land court. The method provided in this paragraph for the determination of the issue of whether any such order constitutes a taking without compensation shall be exclusive, and such issue shall not be determined in any other proceeding, nor shall any person have a right to petition for the assessment of damages under chapter 79 by reason of the adoption of any such order.

The department may, after a finding has been entered that such order shall not apply to certain land as provided in the preceding paragraph, take the fee or any lesser interest in such land in the name of the commonwealth by eminent domain under the provisions of chapter 79 and hold the same for the purposes set forth in this section.

No action by the commissioner or the department under this section shall prohibit, restrict or impair the exercise or performance of the powers and duties conferred or imposed by law on the department of highways, the state reclamation board or any mosquito control or other project operating under or authorized by chapter 252. No order adopted under the provisions of this section shall be deemed to invalidate any order imposed prior thereto by the department of natural resources, the department of environmental management or the department of environmental protection pursuant to section 27A of chapter 130 or sections 40, 40A or 105 of chapter 131.

Costs incurred under this section including, but not limited to, the acquisition of lands or interests therein, awards of damages, surveying and mapping, the preparation of designation plans, printing of reports, conducting of public hearings, and expenses incidental thereto may be paid in accordance with the provisions of section 17 of chapter 21.

The superior court, upon a complaint in the nature of a civil action shall have the jurisdiction to determine whether an order promulgated under this section constitutes a taking without compensation. Such determination shall be independent of any determination by the court of the reasonableness of the exercise of the police power under this section. Said superior court is hereby authorized to hear a complaint of any person having a recorded interest in land or a class action under Rule 23 of the Massachusetts Rules of Civil Procedure and may award damages under the provisions of chapter 79 by reason of the adoption of the order, whether or not such order is determined to be unreasonable.

If the court determines that such order is unreasonable, and if the commissioner shall petition under the provisions of chapter 79 for a taking by eminent domain, the court shall have the power to award damages to the person having the recorded interest in land affected by such order or make such general award of damages relative to a class of land owners who qualify under said Rule 23.

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Last modified: September 11, 2015