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Miramar Park Association v. Town of Dennis

Superior Court of Massachusetts, Barnstable

January 24, 2017

Miramar Park Association et al. [1]
v.
Town of Dennis No. 136530

          MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

          Cornelius J. Moriarty, II, Justice of the Superior Court.

         Plaintiffs Miramar Park Association, Inc. (" the Association") and the individual homeowners filed this action pursuant to G.L.c. 214, § 7A seeking to enjoin the Town of Dennis from depositing dredged sediment on a Town-owned updrift beach instead of depositing it on the down drift beach owned by the Association. This matter is before the court on the Plaintiffs' Motion For Summary Judgment pursuant to Mass.R.Civ.P. 56 and the Defendant Town of Dennis' Cross Motion For Summary Judgment. For the reasons discussed below, the Plaintiffs' motion is ALLOWED and the Town's Cross Motion is DENIED .

         BACKGROUND

         The undisputed facts revealed by the summary judgment record are as follows. The Association is an incorporated non-profit organization that owns a beach on Nantucket Sound located at the end of Miramar Road in Dennisport (" Miramar Beach"). The beach lot is shown as Lot 88 on Plan 11503-J recorded in the Barnstable Registry District of the Land Court. The individual plaintiffs each own a lot of land within a beach community in Dennisport known as Miramar Park. Each individual plaintiff is a member of the Association and has an easement appurtenant to the land to use Miramar Beach for recreational activities.

         To the west of Miramar Beach is a tidal river, Swan Pond River. There is no jetty on the easterly side of the river. There is a stone jetty located on the westerly side of the mouth of Swan Pond River that traps littoral drift material. By interrupting the flow of sediment, the jetty leaves the down drift Miramar Beach with a deficit of sediment. The jetty does not have a sand by-pass system. Miramar Beach, on the east side of the river, is eroding; the beach on the westerly side of the jetty is accreting; and the mouth of the Swan Pond River is filling in, reducing the tidal flow in the river. The reduced tidal flow has reduced the flushing of Swan Pond, a pond at the end of the river. The reduced flushing of the pond has resulted in algae blooms, fish kills, and foul odors.

         In the late 1980s and early 1990s, the Town spent $200, 000 to obtain engineering services, extend the jetty, dredge, and perform water testing to increase the tidal flow within Swan Pond River and Swan Pond. In November of 1990, the Town acquired easements from the owners of the property on which the jetty is situated for " dredging, rip rap, and environmental purposes." Those easements include " the right to excavate and remove dredging material; to place dredging material; to maintain, repair and improve an existing revetment; to construct, maintain and repair a new revetment; [and] to perform related work necessary for said purposes . . ." The Town performed maintenance and repair work on the jetty, and expanded and lengthened it. Despite these efforts, there continued to be a periodic buildup of sediment at the entry of the mouth of the Swan Pond River.

         In October of 1992, twenty-five residents of Miramar Park petitioned the Board of Selectmen requesting that the Town build a second jetty at the mouth of Swan Pond River to trap the sand eroding from Miramar Beach and stabilize the mouth of the river. The petition also requested that the Town dredge the mouth of the river and place the dredge material on the eroding Miramar Beach. In the Spring of 1994, the Town began to formulate plans to dredge the river and place the dredge spoils onto Miramar Beach. In April of 1994, the Town acquired a permanent easement from Virginia Thomason, who at that time owned Miramar Beach, that granted the Town and the public a permanent right of on-foot passage along and across the shore of the coastline. On June 28, 1994, the Board of Selectmen voted to accept the Thomason easement and easements from Miriam Plumb and Nathaniel Rutter, for the purposes of dredging the mouth of Swan Pond River and placing the dredge spoils on the east side of the river. The easements state that the beach will be restored, enhanced, and protected by the publicly funded beach nourishment project.

         In 1996, the Town dredged the mouth of the Swan Pond River and deposited the dredge spoils on Miramar Beach. The Town's dredging of Swan Pond River was and is publicly funded. This beach nourishment improved the condition of Miramar Beach. However, over time, Miramar Beach continued to erode and sand from the beach flowed into the mouth of Swan Pond River, obstructing the tidal flow.

         In 2008, the Town began planning an emergency project to protect a bulkhead on West Dennis Beach, a public beach owned by the Town one mile west of Swan Pond River. The Town planned to dredge Swan Pond River and deposit the dredge spoils on West Dennis Beach, forming a sand dune to protect the bulkhead. The Association inquired why the Town planned to transport the sand to West Dennis Beach instead of depositing it on Miramar Beach. In a January 20, 2009 email, the Town's Natural Resource Officer, Brian Malone (" Malone"), informed the Association that the dredging would improve the water quality of Swan Pond which recently had opened for shellfishing after twenty years, and that construction of a dune at West Dennis Beach was necessary to protect the parking lot and integrity of the barrier beach. Malone noted that the Town Meeting appropriation for the dredging was limited to expenditure at West Dennis Beach. Malone further stated:

The Department is aware that in March of 1994, a few residents located along Miramar Avenue, agreed to grant an " on-foot" right-of-passage easement, in perpetuity to the general public, and that the Town agreed to deposit dredge material on the beach of the Miramar properties.
The DNR file in this matter contains several letters from the former Director of Natural Resources, George MacDonald, to these property owners, wherein he informed the Grantors of the Easements that the dredge spoils deposited on their beaches, in exchange for granting the Easements, were limited to the " existing permits " which expired in 2003. He stated: " the Town will have to go through a new permit process again and seek new permits. Any new permit would give the Town the right to seek any new disposal area . . . in the best interest of the Town ."
We have received an opinion from our Town Counsel, stating that the easements granted in 1994 by their terms do not convey a duty to perform ongoing beach nourishment to the Miramar properties.

(Emphasis in original.)

         In 2010, the Town proceeded with the emergency project and dredged 30, 000 cubic yards of sediment from the mouth of Swan Pond River and deposited it on West Dennis Beach. Thereafter, the plaintiffs observed significant erosion of Miramar Beach and accretion of sand in the mouth of Swan Pond River. In connection with the 2010 dredging, the Town obtained permits from the Dennis Conservation Commission under the Wetlands Protection Act (" WPA") and the Town Wetlands Bylaw. In addition, the Town obtained permits from DEP under the Chapter 91 Waterways Act; the 401 Water Quality Certification Program; and the Massachusetts Environmental Policy Act (" MEPA"). The Town filed with the Division of Fisheries and Wildlife Natural Heritage and Endangered Species Program, and obtained a public benefit determination from the Executive Office of Energy and Environmental Affairs. Neither the Association nor any of the individual plaintiffs brought an administrative or judicial appeal of any of these permits or approvals.

         The Association retained coastal geologist Stanley Humphries of LEC Environmental Consultants, Inc. to conduct a study of Miramar Beach. LEC's July 2012 report concluded that the construction of a stone jetty on the west side of the inlet changed the dynamics of the natural sediment transport direction, causing Miramar Beach to begin to erode. The report concluded that the 2010 dredging of 30, 000 cubic yards of sediment adversely affected Miramar Beach, which would benefit from dredged materials being placed there in the future. LEC's report opined that the Town had violated 310 Code Mass. Regs. § 10.27(4)(c), which states that jetties trapping littoral drift material shall contain a sand bypass system to transfer sediments to the down drift side of the inlet or shall be periodically re-dredged to provide beach nourishment to down drift beaches. While conducting research for the LEC report, Humphries learned that the Town had retained the Woods Hole Group to perform a study of the coastal processes at work at the mouth of the Swan Pond River. Woods Hole Group prepared a November 2010 report for the Town entitled, " Final Waterway Assets and Resources Survey Master Plan for Dredging and Beach Nourishment For Town of Dennis, Massachusetts." This report reached the same conclusion as LEC that the dominant sediment transport direction in the vicinity of Swan Pond River is west to east.

         In September of 2012, counsel for the Association and some of its members met with Town officials to express their concerns about the Town's maintenance dredging. However, the Association did not ...


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