Section Review

Pier review: Dubuque v. Conservation Commission of Barnstable

T. David Houghton is an assistant town attorney with the town of Barnstable and was the lead working attorney on the Dubuque case on behalf of the Conservation Commission of the town. He represents the town's interests primarily in cases pertaining to property, municipal litigation, labor, and procurement issues.

"By the sea, by the sea, by the beautiful sea! You and me, you and me, oh how happy we'll be!"

"By the Beautiful Sea," lyrics by
Harold Atteridge, music by
Harry Carroll (1914)

Back in 1914 when Joe sang that melodious refrain to his inseparable companion Jane (rhyme intended), had Jane agreed to accompany him, they more than likely would have had the seashore mostly to themselves; not so today, however. A study by the Washington, D.C.-based Population Reference Bureau reported that between 1960 and 1990 coastal population density increased from nearly 275 to nearly 400 people per square mile: Don Hinrichsen, Coasts in Crisis, available at American Association for the Advancement Of Science, September 1995, www.aaas.org/international. Efforts to keep the increased numbers of seaside happiness seekers from spoiling each others' bliss led to the recent Appeals Court decision in Dubuque v. Conservation Commission of Barnstable, 58 Mass. App. Ct. 824 (2003), further app. rev. den. 440 Mass. 1106 (2003).

Pier-review scheme

Federal and state. The waters into which piers must be extended in order to fulfill their intended purposes have since colonial times been impressed with public rights (indeed public ownership below extreme low water). "By the common law of England, as it stood long before the emigration of our ancestors to this country and the settlement of the colony of Massachusetts, the title to the land or property in the soil, under the sea, and over which the tide waters ebbed and flowed, including flats, or the sea-shore, lying between high and low water mark, was in the king, as the representative of the sovereign power of the country. But it was held by a rule equally well settled that this right of property was held by the king in trust, for public uses, established by ancient custom or regulated by law, the principal of which were for fishing and navigation." Commonwealth v. Alger, 7 Cush. 53, 65 (1851).

The colonial ordinances of 1641 to 1647 wrought a significant change in the English common law, by extending the zone of private ownership in tidelands down to the low-water mark in order to stimulate private pier construction, subject, however, to the rights in the public to fishing, fowling and navigation. But since their codification, the colonial ordinances have been marked by a retreat from almost exclusive private ownership toward shared local and state government jurisdiction of the near-shore tidal zone.

In similar fashion, the history of the Wetlands Protection Act, General Laws chapter 131, section 40, has been characterized by an expansion of local jurisdiction and power over wetlands regulation. Interestingly, section 40 as first enacted in 1963 governed only coastal wetlands and only permitted municipalities to "recommend" protective measures to the predecessor of the DEP, not prescribe them, St. 1963, c. 426. In 1972, section 40 was broadened to grant municipalities the power to now impose wetlands protective measures, St. 1972, c. 784. Lovequist v. Conservation Commission of Dennis, 379 Mass. 7 (1979), completed the process by holding that municipalities could regulate wetlands more strictly than the state under home rule.

As a result, four permits are required in order to construct a pier: two from the local conservation commission acting under both its wetlands protection bylaw or ordinance and the state Wetlands Protection Act; one from the state Department of Environmental Protection pursuant to General Laws chapter 91, section 14 and its implementing regulations, 310 CMR 9.10 - 9.16; and one from the United States Army Corps of Engineers under the Rivers and Harbors Appropriation Act, 33 U.S.C. ß 403 and its implementing regulations, 33 CFR 324 and 325.

It is the local wetlands permit that was at issue in Dubuque. The state wetlands permit is reviewable under administrative adjudicatory proceedings brought before the Department of Environmental Protection, but those proceedings were not at issue in Dubuque.

Local. Three sections of Barnstable's wetlands protection ordinance bore on the pier at issue in Dubuque. First, section 1 recited among the purposes of the ordinance the protection of public trust rights and the wetlands value of recreation. Second, under section 6, the commission is empowered to deny a permit for, among other reasons, "failure to avoid or prevent unacceptable significant or cumulative effects upon the wetlands values protected by this bylaw." Third, under section 8, the commission is empowered "to promulgate performance standards, design specifications, policy guidelines and other rules and regulations to accomplish the purposes of this ordinance."

Pursuant to section 8, on June 5, 1990, the commission promulgated final regulations governing piers, four of which were at issue in Dubuque. First, section C requires placement of piers only on land contiguous to the dwelling served "except where unusual circumstances of long standing apply." Second, section D(1) limits a pier's length to one-half of the host lot's water frontage. Third, section E requires that there be at least one foot of water depth between the bottom of a boat at a pier (the commission interprets this as including the lowest point of any propulsion unit) and the submerged land at mean low water. Fourth, the commission will nevertheless consider every pier application on a site-specific basis "according to its merits and the degree to which statutory interests have been protected and preserved at the locus."

Judicial. Judicial review of local conservation commission decisions is obtained by commencement of an action for relief in the nature of certiorari pursuant to General Laws chapter 249, section 4. Complaints in the nature of certiorari serve to "correct errors" in administrative proceedings by means of judicial review where such oversight is not otherwise provided by means of statute. Yerardi's Moody Street Restaurant and Lounge, Inc. v. Board of Selectmen of Randolph, 19 Mass. App. Ct. 296 (1985); Wightman v. Superintendent, Massachusetts Correctional Institute, 19 Mass. App. Ct. 442, 444 (1985). By its very nature, an action for certiorari has a very limited scope of review confined to correcting substantial errors of law apparent on the record adversely affecting material rights. Goldie's Salvage, Inc. v. Selectmen of Walpole, 31 Mass. App. Ct. 726, 731 (1992).

The standard of review under chapter 249, section 4 varies according to the nature of the action for which review is sought, Pratt v. Plymouth County Retirement Board; 47 Mass. App. Ct. 66, 69 (1999); Forsyth School for Dental Hygenists v. Board of Registration in Dentistry, 404 Mass. 211 (1989). The two standards of review most frequently employed are the "arbitrary and capricious" standard and the "substantial evidence" standard. Dubuque is a "substantial evidence" case because the Dubuques challenged the findings of the commission on grounds they were insufficiently supported by substantial evidence on the record as a whole, Georgetown v. Essex County Retirement Bd., 29 Mass.App.Ct. 272 (1990), Lovequist v Conservation Commission of Dennis, 379 Mass. 7 (1979). The "arbitrary and capricious" standard is employed when it is alleged that the agency applied improper criteria outside of the laws it is administering, FIC Homes of Blackstone, Inc. v. Conservation Commission of Blackstone, 41 Mass. App. Ct. 681 (1996).

To satisfy the substantial evidence standard, a commission must receive "such evidence as a reasonable mind might accept as adequate to support a conclusion," New Boston Garden Corp. Board of Assessors of Boston, 383 Mass. 456, 466 (1981).

What the reasonable mind might lawfully accept as adequate to support a conclusion is to be determined by: (1) giving due weight to the experience, technical competence, specialized knowledge and discretionary authority of the agency; (2) deferring to the agency on questions of fact and reasonable inferences drawn from the record; (3) examining the entirety of the administrative record and taking into account whatever in the record fairly detracts from the supporting evidence's weight; and (4) determining the rational probability of the agency's conclusion, i.e., the agency's conclusion is to be upheld unless "the evidence points to no felt or appreciable probability of the conclusion or points to an overwhelming probability of the contrary," Cobble v. Commissioner of Department of Social Services, 430 Mass. 385, 390-391 (1999). This is not a preponderance of the evidence standard. "In order to be supported by substantial evidence, an agency conclusion need not be based upon . . . preponderance of the evidence, but rather only upon 'reasonable evidence, Medical Malpractice Joint Underwriting Assn. Of Mass. v. Commissioner of Ins., 395 Mass. 43, 54, i.e. 'such evidence as a reasonable mind might accept as adequate to support a conclusion' after taking into consideration opposing evidence in the record. G.L. c. 30A, ßß 1(6), 14(8)." Hotchkiss v. State Racing Commission, 45 Mass. App. Ct. 684, 696 (1998).

Unlike judicial review of zoning cases pursuant to General Laws chapter 40A, section 17, certiorari cases are not heard de novo by a reviewing court. As can be seen from the preceding discussion of the substantial evidence standard, the evidence on which the judgment is to be made is limited to that which is contained in the "record," i.e., the documents received and produced and the statements made to and by a commission. In addition, certiorari cases are processed in the Superior Court in accordance with Modified Superior Court Standing Order No. 1-96, the principle provisions of which are: the commission either as part of or in lieu of an answer must file the record within 90 days after service of the complaint; the claim is "resolved" on a motion for judgment on the pleadings (Mass. R. Civ. P. 12(c)); the defendant commission has 30 days to serve its response to the motion instead of the 21-day opposition period for motions for summary judgment under Superior Court Rule 9A(a)(2); and there is a mandatory hearing on the motion for judgment on the pleadings, which is somewhat more directory than the presumptive hearing on a motion for summary judgment under Rule 9A(c)(3).

Proceedings

Aerial photograph Sept. 6, 2001

Setting. The particular portion of the beautiful sea out of which the dispute culminating in Dubuque arose is East Bay in that part of Barnstable known as the village of Osterville. Located roughly in the center of the south shore of Cape Cod, it is a shallow tidal embayment of approximately 208 acres connected by the Centerville River to Centerville Harbor and the open waters of Nantucket Sound, approximately three nautical miles west northwest of its more famous neighbor Hyannisport Harbor.

In 1990, the town commissioned a study of a portion of its south coast including East Bay. The study revealed that of the bay's 208 acres, 109 acres (53 percent) were available for recreational pursuits, the remainder being occupied by a mooring field of 38 acres for 56 boats (by 2000 when the dispute in Dubuque arose, the mooring field had grown to accommodate 134 boats) and 47 acres by water assumed to be too shallow for practical use. A public boat launch ramp located on the same western shore as the pier proposal complemented the bay's recreational uses, as did a public bathing beach on its south shore (called "Dowses Beach"), which also historically served as launch area for windsurfers (which for the landlubbers among the readership refers to a surfboard equipped with a sail). The presence of these recreational resources is due in large part to the calm, sheltered waters East Bay provides owing to the shadowing effects from the upland contours of its western shore over the prevailing summer southwesterly sea breezes, which customarily reach between 15 and 21 knots (about 17 to 24 miles per hour) and build 1- to 3-foot waves on the open waters of the adjacent sound.

Philip and Patricia Dubuque purchased two lots near the western shore of East Bay in 2001. One lot comprised approximately .08 acre with no improvements save a small wooden platform (which the Dubuques maintained was an existing pier) directly on the shore of East Bay with a stated consideration of $100,000 (shown in the smaller circle on the aerial photograph). The other comprised 2.27 acres improved with a 4,329 square-foot residence separated by three other lots and approximately 300 feet from the shore of East Bay for a stated consideration of $3.28 million (shown in the larger circle on the aerial photograph).

Proceedings before the commission. The Dubuques had purchased both lots from the previous owners, 448 Wianno Ave. Realty Trust and Mary Jo Stratouly (the trust paid $300,000 for the 2.27-acre lot as vacant land in 1994 and Mary Jo Stratouly paid $18,000 for the .08-acre one in 1995) and were substituted as defendants-appellees. Dean Stratouly and Mary Jo Stratouly had begun the proceedings by filing a notice of intent (the name given an application under wetlands protection) with the Barnstable Conservation Commission seeking an order of conditions that would allow construction of a fixed pier on the small lot extending 54 feet more or less from mean low water capped by a removable 20-foot ramp leading down to three 8-by-10 foot floats for a total approximate length of 98 feet (portions of the ramp overlap the floats) from mean low water. The objective of the design was to gain the Stratoulys a water depth of 2 feet at the end of the furthest float at mean low water so that the Stratoulys could use a 26-foot long Regulator powerboat at the pier even though the Regulator required a water depth of at least 31 inches to float with its outboard motor fully extended in operating position (they also wished to use a 13-foot Boston Whaler powerboat that requires only 1 foot of water to float). The waterfront lot's linear frontage measured 104.63 feet between the sideline termini and 110 feet at the street: its length at mean high water was estimated by the Stratoulys as 108 feet. Thus, the design the Stratoulys presented to the conservation commission did not comply with the commission's length regulation (compliance with section D(1) would limit the total length to 54 feet), depth regulation (the Regulator would not comply with the 1 foot separation requirement under section E), nor its "contiguity" regulation (section C required a pier to be on the same lot as the dwelling it served and the Stratoulys' two lots were separated by approximately 300 feet and three other lots).

Since the pier design could not meet both the Stratoulys' desires and the commission's regulations, they advanced under the banner of the "catch-all" commission pier regulation that every pier application be considered on a site-specific basis, and urged that if so considered their pier would be seen not to detract from the wetlands interests to be protected at the locus and thereby qualify for a waiver of compliance with the length, depth and continguity regulations. The commission, however, determined that it would create a detriment and denied their application as discussed further, supra.

The only protected interests at issue were public trust rights and recreation, and since Fafard v. Conservation Commission of Barnstable, 432 Mass. 194 (2000) was decided during the pendency of the Superior Court proceedings holding that a local wetlands protection ordinance could not regulate public trust rights, the impact of the proposed pier on recreation at the site remained as the sole issue.

Superior Court decision. The Stratoulys then filed an action for relief in the nature of certiorari pursuant to General Laws chapter 249, section 4 in the Barnstable Superior Court on Oct. 15, 1999. By memorandum of decision dated Jan. 25, 2002, the Barnstable Superior Court ruled that the only evidence presented to the commission was by the Stratoulys, and that the type of recreation that was discussed by the commission members included their personal experiences in board sailing in the area and the difficulty in going through the mooring field, all of which was speculative without any basis in fact and that, therefore, the commission did not have substantial evidence upon which to base its denial.

Appeals Court decision. Upon appeal by the commission, the Appeals Court reversed the Superior Court and reinstated the commission's denial. The court held that the applicants had failed "to provide a basis upon which the commission should in discretion waive compliance" and confirmed that "the commission had acted on reasonable grounds" in denying their application, 58 Mass. App. Ct. 824.

Without contesting the violation (of Section D.1, the length regulation, supplied), the applicants have urged the commission to exercise discretion [FN6] and waive compliance. This involves a match-up of the likely improvement of the convenience of the applicant to be brought about by the new structure with any loss to the public interest that would be caused thereby.

58 Mass. App. Ct. 824, 827.

After discussing the relatively greater difficulty in docking the Regulator at low tide as opposed to the Whaler at the pier versus "narrowing the space for movement of small craft" that "would interfere with small boat recreational movement and passage" that the pier would cause, and the "damper and physical hindrance to the future of the sport" of windsurfing "in this area of the inlet," the court made the following key comment:

With violation of regulation ß D.1 conceded, and the facts pretty clear, the commission, fully familiar with local conditions, had also before it the views of two experts on the part of the applicants, matters brought out through interrogation of the experts by commission members, and some help from commission staff. In the match-up suggested above, it is all too easy to exaggerate the advantage in convenience to the applicant from the proposed construction, and to underestimate the resulting public detriment. At any rate, the Superior Court judge may be faulted in the present case for failing to give due weight to the overall judgment of the commission.

58 Mass. App. Ct. 824, 828 (emphasis supplied).

Taking those elements one at a time, the following is revealed.

The commission was fully familiar with local conditions. The commission's chair, Robert Lancaster, stated on the record he was very familiar with recreational use on East Bay and that the pier area was heavily used by windsurfers and kayakers "because of the moored - the density of the moored vessels out there, the only place that they do have that's open for them to sail their little wind surfers which don't draw very much water, is this strip that runs all around here," referring to the area of East Bay into which the Stratoulys' pier would extend. Commission member Albert Barbour stated on the record that he had personally windsurfed at the site of the proposed pier because he had been in as far as the outhaul post that the Stratoulys' pier would extend past.

The views of two experts on behalf of the Stratoulys. Debra A. Hadden appeared on behalf of the Stratoulys to present "an independent assessment of navigational impacts." Hadden stated she had joined Fort Point Associates as a senior environmental associate in March 1999, prior to that had served as manager of Maritime Environmental Affairs with the Massachusetts Port Authority and had been project manager and primary author of the town's 1990 East Bay study. She described the study's recommendation to divide East Bay into four areas for planning purposes and pointed out that the pier would cross two of them: the multi-use low intensity area right along the shore, which had as a goal maintaining recreational use; and the water-use support area beginning near the edge of the mooring field, which had as a goal complementing recreational use. In her opinion, there was little if any recreational use at the pier site that it would interfere with because the water was too shallow, the mooring field was too close at hand and the nearby outhaul post already obstructed passage.

Arlene Wilson, describing herself as a "wetlands scientist," appeared on behalf of the Stratoulys, but her statements were confined to the lack of shellfish resources at the site, and thus were not as related to the ultimate basis for the decision as the recreational impact.

Matters brought out through interrogation of the experts by commission members. The status of a neighboring outhaul post factored throughout the proceedings, including before the Appeals Court (see 58 Mass. App. Ct. 824 at 828). Again for landlubbers among the readership, to envision an outhaul post arrangement, picture the clotheslines strung between pulleys fastened to urban tenements, except that in the case of an outhaul post, the line is strung between one post on shore and another some distance into the water and the operator is pulling in or pushing out, as requirements dictate, a small boat rather than wet or dry clothing. A repartee ensued between Lancaster and Wilson on the extent of the legality and use of the outhaul. Its importance lay in the fact that the Stratoulys argued it was an existing impediment to recreation because the line strung between the pulleys prevented any vessel with a vertical protrusion, such as the mast and sail of a windsurfer, from moving beneath it, but, as the commission and Appeals Court observed, the Stratoulys' pier would extend beyond the end of the seaward of the two outhaul posts.

Some help from commission staff. Lancaster asked during the hearing whether the conservation administrator, Rob Gatewood, had any statements regarding the Stratoulys' application. His response drew the commission's attention to the noncompliance with the contiguity regulation, which had not been discussed up to that point in the hearing; described his personal experience sailing a small sailboat in the open water between this shore and the mooring field; and distinguished the harbormaster's jurisdiction over mooring placement from the commission jurisdiction over pier placement (the Harbormaster had sent a letter to the commission stating that the proposed pier would not interfere with any moorings).

Contiguity. The court's suggestion that "if the recreation ground of our decision fails upon possible review, it would seem desirable for the applicants to have leave to apply to the Superior Court for an order that would direct the commission to reconsider and take further proof on the subject of ß C," 58 Mass. App. Ct. 824, 830, is no longer apposite in view of the denial of the Dubuque's application for further appellate review, 440 Mass. 1106 (2003).

Significance

The significance of Dubuque lies in its treatment of conflicting evidence in the application of the substantial evidence test. This was not a case of application of the rule that a trier of fact may assess the credibility of witnesses. The Dubuques' argument was not that this was a "battle of the experts" that they should have won; rather, their argument was that this was a case where the opposing party did not put in any evidence. Conservation commission proceedings are not trials, however, and a commission is not there to present a case, but to listen, consider and decide. The court's comment guides both commissions and applicants with its recognition and reminder that in the course of listening, considering and deciding, a commission can and should (1) apply the fullness of its familiarity with local conditions and (2) demonstrate its familiarity on the record. For commissions, demonstration on the record of their full familiarity will gain them deference on review if in their judgment the project will tangibly detract from the interests protected under their jurisdiction and they can demonstrate that tangible detraction on the record as well. For applicants, concentration on local conditions by them and their "experts" will enhance the prospects for creating a project design that a commission can endorse or, failing such endorsement, enhance their case on review if the commission has not demonstrated on the record the connection between local conditions and the project's impact on them. What may remain for future cases is establishment of the threshold at which a commission's familiarity with local conditions becomes "full."

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