Opinion
16–P–689
03-01-2017
Robin DOWNS v. CONSERVATION COMMISSION OF DENNIS
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Robin Downs, appeals from a Superior Court judgment affirming a decision of the defendant, conservation commission of the town of Dennis (commission), which had denied the plaintiff's application for an order of conditions to construct a recreational boating dock within a wetlands resource area. We affirm.
Background . We summarize the material facts, which are not in dispute, reserving some for discussion of the issues. The plaintiff sought to construct a recreational boating dock (project), which included a pier, a ramp, and a float system, in a narrow lagoon near his property in Dennis. The area is within a wetland resource and is protected under the Wetlands Protection Act, G. L. c. 131, § 40 (WPA), as well as the town's wetlands protection by-law (by-law) and the commission's accompanying rules and regulations (DCCR). Accordingly, the plaintiff applied to the commission for an order of conditions to approve the project. Following a review of the plaintiff's application and two public hearings, the commission denied the project under both the WPA and the by-law. Most significantly, the commission determined that the project would adversely impact the interests in public recreation and wildlife habitat protected by the by-law. The commission also found the project failed to meet the standard for a variance required for the proposed dredging.
The plaintiff appealed the commission's decision to the Superior Court in a certiorari action under G. L. c. 249, § 4. A judge upheld the commission's decision, concluding that the decision was neither arbitrary and capricious nor unsupported by substantial evidence. The plaintiff appeals.
The plaintiff also requested and received a superseding order of conditions from the Massachusetts Department of Environmental Protection (DEP), subject to conditions. The superseding order supersedes only the portions of the commission's decision based on the WPA, and not the portions based on the by-law that further protects wetland resources. See Parkview Electronics Trust, LLC v. Conservation Commn. of Winchester , 88 Mass. App. Ct. 833, 836–837 (2016).
Discussion . 1. Standard of review . We review the commission's decision for "error of law or abuse of discretion [as] measured by the ‘arbitrary and capricious' test." Police Commr. of Boston v. Personnel Administrator of the Dept. of Personnel Admn ., 39 Mass. App. Ct. 360, 363 (1995), quoting from Caswell v. Licensing Commn. for Brockton , 387 Mass. 864, 878 (1983). Under that standard, the plaintiff has the burden of proving the absence of any conceivable ground upon which a " ‘reasonable [person] might deem proper’ to support [the commission's decision]." T.D.J. Dev. Corp . v. Conservation Commn. of N. Andover , 36 Mass. App. Ct. 124, 128–129 (1994), quoting from Cotter v. Chelsea , 329 Mass. 314, 318 (1952).
The plaintiff essentially argues that the commission's decision was both arbitrary and capricious and unsupported by substantial evidence. For the reasons herein, we conclude that the commission's decision is supported by substantial evidence and is neither arbitrary nor capricious. See Dubuque v. Conservation Commn. of Barnstable , 58 Mass. App. Ct. 824, 828–829 (2003) ("In order to overturn [the commission's decision], the applicants must establish that it was arbitrary and capricious or unsupported by substantial evidence").
2. Public recreation and G. L. c. 91, § 17 . To obtain the commission's approval, the plaintiff was required to show the project would not adversely affect "any wetland resource area for public recreational values, including fishing, fowling, shellfishing and boating." DCCR § 2(9). The commission found that based on the location of two preexisting docks (licensed pursuant to G. L. c. 91), the project would adversely affect public recreation by creating unsafe boating conditions in the narrow lagoon. This finding is supported by substantial evidence in the form of two letters written by the town's harbormaster. The plaintiff argues, however, that the commission's application of the by-law on this issue was contrary to G. L. c. 91, § 17. We disagree.
The harbormaster stated the project "would definitely hamper and nearly make impossible any safe navigation, maneuvering, and docking of any safe manner." Concerning the plaintiff's amended plan, which involved moving the abutting docks, the harbormaster opined that "[i]f the two abutters agreed, which they didn't, I would still be very skeptical with the revised plan.... ‘[T]here is just not enough room’ for safe transit and vessel maneuvering."
We also disagree with the plaintiff's claim that the commission misconstrued "public" and weighed more heavily the private interests of the preexisting license holders. The commission's findings on boating safety equally serve the interests of all who enter the lagoon, including the plaintiff.
General Laws c. 91, § 17, provides that one cannot use his or her c. 91 license to interfere with the property rights of another. See Hewitt v. Perry , 309 Mass. 100, 104-105 (1941). It does not guarantee equal access or licenses to all littoral property owners. Rather, each owner, including the plaintiff, must comply with all State and local by-laws and regulations to obtain a c. 91 license. See Fafard v. Conservation Commn. of Barnstable , 432 Mass. 194, 200–205 (2000) (holding town's by-law and commission's regulations thereunder were not inconsistent with provisions of c. 91). Even with a superseding order from the DEP as the plaintiff received here, "[n]othing in G. L. c. 91 ‘grants to the [DEP] the authority to authorize a project which [a] local board has vetoed.’ " Id . at 205, quoting from Golden v. Selectmen of Falmouth , 358 Mass. 519, 525 (1970). Therefore, c. 91 did not preclude the commission from determining that the interests of the public under the by-law would be adversely affected, nor did it prevent the commission from denying the project under the by-law and the accompanying regulations.
Moreover, a logical conclusion of the plaintiff's argument is that G. L. c. 91, § 17, prohibits the commission from considering the project's impacts on preexisting c. 91 licensed structures. However, that would be contradictory to the DEP's own c. 91 license review process in which it is required to ensure that proposed projects will not interfere with existing c. 91 structures. See 310 Code Mass. Regs. § 9.36(2) (2014).
3. Wildlife habitat . The plaintiff claims that the commission's decision was arbitrary and capricious because its findings concerning wildlife habitat, specifically the project's impact on shellfish, were contrary to the record. We disagree.
We also disagree with the plaintiff's claim at oral argument that the DEP superseding order supersedes the commission's finding on the project's adverse impact on wildlife habitat. The town has enacted a more stringent regulatory scheme to protect wildlife than the WPA, as evidenced by various DCCR requirements including those related to dredging and variances. See DCCR §§ 3(1)(c) & (d) and 4. See also Hobbs Brook Farm Property Co. Ltd. Partnership v. Conservation Commn. of Lincoln , 65 Mass. App. Ct. 142, 149–150 (2005).
Under the by-law and DCCR, the plaintiff was required to demonstrate that the project would not adversely affect any "wetland dependent wildlife habitat." DCCR § 2(10). The commission considered evidence of the project's impact on both shellfish and winter flounder. A report from the State's Division of Marine Fisheries (DMF) identified the project's location as within a mapped shellfish habitat. The report noted that the area "is deemed significant to the interest of the Wetlands Protection Act and the protection of marine fisheries." The report also identified the area as a spawning habitat for winter flounder, which is of particular concern due to overfishing of Southeastern New England winter flounder.
In addition to the DMF report, the commission reviewed a shellfish habitat assessment survey submitted by the plaintiff. The survey concluded that the project "would not have adverse impact/significant effect [on] shellfish and/or their habitat." However, the survey failed to explain that conclusion in light of the DMF's contradictory findings. The survey also did not address impacts on any other wildlife such as winter flounder.
To the extent the commission was presented with conflicting evidence regarding the project's impact on shellfish, we must grant deference to the commission's determination. See Conservation Commn. of Falmouth v. Pacheco , 49 Mass. App. Ct. 737, 739 n.3 (2000), quoting from Lisbon v. Contributory Retirement Appeal Bd ., 41 Mass. App. Ct. 246, 257 (1996) ("If the agency has, in the discretionary exercise of its expertise, made a ‘choice between two fairly conflicting views,’ and its selection reflects reasonable evidence, ‘[a] court may not displace [the agency's] choice’ ").
The commission's determination that the project would adversely affect wetland wildlife, including shellfish, was thus substantially supported by the evidence and not arbitrary or capricious.
4. Maintenance dredging . The commission determined that the project failed to meet the required depth under the DCCR, and therefore approval could not be granted without a variance for dredging. The plaintiff argues that the dredging required for the project would be "grandfathered" as normal maintenance. While we acknowledge the plaintiff's ability to perform maintenance dredging without a variance, we agree with the commission that he failed to sufficiently show his activity would qualify as such.
Section 3(1)(d) of the DCCR requires that all docking facilities have a minimum of three foot depth "at mean low water without benefit of dredging."
The plaintiff's engineer even acknowledged at one of the hearings that "it [is] hard to see that it is new dredging except that we agree there was never an order of conditions issued so we are here to get permission to do the dredging."
Under § 1 of the DCCR, which defines specific terms, grandfathering or preexisting use
"allows for the use and normal maintenance of any structure or alteration of land, within wetland resource areas and their buffers, existing at the time of enactment of MGL Chapter 131 Section 40 (effective date 1972) and/or the Town of Dennis Wetlands Protection Bylaw (effective date 1975) or subsequent revisions."
Based on that language, the plaintiff claims he can freely dredge the area to its original depth under "normal maintenance." He relies on an Army Corps of Engineers permit dated November, 1956, indicating the area's depth at six feet. That evidence is insufficient for two reasons. First, the clear, unambiguous language of the DCCR states that the area may be maintained as it existed (at the earliest) at the enactment of the WPA in 1972 and/or the by-law in 1975. The Army Corps permit may indicate the permitted depth of the lagoon in 1956, but it could not show the actual depth in 1972 or 1975. Second, although the plaintiff referenced the existence of the Army Corps permit in his application and at a public hearing, the permit itself is not part of the record. Without reviewing the permit, the commission was not in a position to determine if there was a sufficient nexus between the proposed dredging and the lagoon's former features and use. Accordingly, the commission reasonably found that the plaintiff failed to show the dredging would be normal maintenance, and therefore required the plaintiff to meet the standard for a variance.
Even if the dredging were classified as normal maintenance, the DCCR defining grandfathering or preexisting use goes on to require "a finding of the Commission that such alteration shall have no adverse effect/significant adverse effect on the resource areas relative to the interests protected by the ... Bylaw." DCCR § 1.
5. Variance . The commission may grant a variance from any DCCR requirement where it finds that a project "will serve to lessen impacts to and/or substantially enhance the interests identified in the Bylaw and there are no other reasonable conditions or alternatives that would allow the project to proceed in compliance with the rules and regulations." DCCR § 4. However, "it is well settled that no one is entitled to a variance." FIC Homes of Blackstone, Inc . v. Conservation Commn. of Blackstone , 41 Mass. App. Ct. 681, 686 (1996). A variance should be granted sparingly and on a case-by-case basis. Sheppard v. Zoning Bd. of Appeal of Boston , 81 Mass. App. Ct. 394, 398-399 (2012).
As discussed infra , the record supports the conclusion that the project here would not only fail to "lessen impacts [on] and/or substantially enhance the interests identified in the Bylaw," but would in fact adversely impact the interests in public recreation and wildlife habitat protected by the by-law. DCCR § 4. Accordingly, it was not arbitrary and capricious for the commission to deny the plaintiff a variance.
6. Conditional approval . The plaintiff argues that the commission's decision was arbitrary and capricious because the project was denied without considering whether it could be approved with adequate conditions. We disagree.
The burden to show the project "will not have an unacceptable significant and immediate or cumulative effect upon the wetland values protected by this Bylaw" rests on the plaintiff. By-law § 6. However, the commission must consider whether a project could be granted conditional approval. See by-law § 5. The record supports the conclusion that the commission did consider alternatives but ultimately decided not to grant conditional approval in order to preserve the interests under the by-law. See Fafard , 432 Mass. at 206.
After the commission expressed concerns about the project's impact on boating safety, the plaintiff proposed to move the two existing docks further out from the lagoon's center to allow for more space. Notwithstanding the lack of consent from the preexisting docks' owners to move their docks, the harbormaster considered that proposal in his second letter to the commission. He concluded that even if the docks were moved, " ‘there is just not enough room’ for safe transit and vessel maneuvering." Thus, it is clear from the record that the commission reasonably determined no alternatives existed that would make the project acceptable under the by-law.
The plaintiff also claims that any concerns about the project's impact on wildlife could have been addressed by imposing time of year restrictions and a donation to the town's shellfish mitigation fund. To the extent he is arguing that the commission should have granted variances to any of the relevant regulations on the condition he adhere to those conditions, we disagree. As the judge reasoned in his decision, under DCCR § 4, since the plaintiff cannot show that the project will "lessen the impacts to or substantially enhance the interests identified in the Bylaw," he has failed to meet the criteria for the commission to even consider granting a variance.
Conclusion . The commission's decision to deny the project because it would adversely impact interests protected by the bylaw and failed to meet specific requirements under the DCCR was supported by substantial evidence and was not arbitrary or capricious.
To the extent that we do not address separately each of the plaintiff's other contentions, "they ‘have not been overlooked. We find nothing in them that requires discussion.’ " Department of Rev . v. Ryan R ., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski , 332 Mass. 66, 78 (1954).
Judgment affirmed .