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General Laws

Section 105. The commissioner of environmental protection may from time to time, for the purpose of promoting the public safety, health and welfare, and protecting public and private property, wildlife and marine fisheries, adopt, amend, modify or repeal orders regulating, restricting or prohibiting dredging, filling, removing or otherwise altering, or polluting, coastal wetlands. In this section “coastal wetlands” shall mean any bank, marsh, swamp, meadow, flat or other low land subject to tidal action or coastal storm flowage and such contiguous land as said commissioner reasonably deems necessary to affect by any such order in carrying out the purposes of this section.

The commissioner of environmental protection shall, before adopting, amending, modifying or repealing any such order, hold a public hearing thereon in the municipality in which the coastal wetlands to be affected are located, giving notice thereof to the state reclamation board, the department of highways and the department of environmental management and each assessed owner of such wetlands by mail at least twenty-one days prior thereto.

Upon the adoption of any such order or any order amending, modifying or repealing the same, the commissioner of environmental protection shall cause a copy thereof, together with a plan of the lands affected and a list of the assessed owners of such lands, to be recorded in the proper registry of deeds or, if such lands are registered, in the registry district of the land court, and shall mail a copy of such order and plan to each assessed owner of such lands affected thereby. Such orders shall not be subject to the provisions of chapter one hundred and eighty-four. Any person who violates any such order, (a) shall be punished by a fine of not less than one hundred nor more than twenty-five thousand dollars, or by imprisonment for not more than one year, or both such fine and imprisonment; or (b) shall be subject to a civil penalty not to exceed twenty-five thousand dollars per violation. Each day such violation continues shall constitute a separate offense.

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

Any person having an ownership interest, any lessees holding a lease of twenty-five years length or more and any mortgagor having an interest in land affected by any such order, may, within ninety days after receiving notice thereof, petition the superior court to determine whether such order so restricts the use of his property as to deprive him of the practical uses thereof and is therefor an unreasonable exercise of the police power because the order constitutes the equivalent of taking without compensation. If the court finds the order to be an unreasonable exercise of the police power, as aforesaid, the court shall enter a finding that such order shall not apply to the land of the petitioner; provided, however, that such findings shall not affect any other land than that of the petitioner. The commissioner of environmental protection 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 seventy-nine by reason of the adoption of any such order.

The department of environmental management 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 seventy-nine and hold the same for the purposes set forth in this section.

No action by the commissioner of environmental protection or the department of environmental protection under this section shall prohibit, restrict or impair the exercise or performance of the powers and duties conferred or imposed by law in the department of highways, the Massachusetts Water Resources Authority, the state reclamation board or any mosquito control or other project operating under or authorized by chapter two hundred and fifty-two.

No order adopted hereunder shall apply to any area under the control of the metropolitan district commission and the Massachusetts Water Resources Authority. No order adopted hereunder shall permit the construction in coastal wetlands of access driveways to unrestricted land except in a manner which allows the flow of the tide.

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