The Landing Group, Inc.
Massachusetts Department of Environmental Protection et al.  No. 136131
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S
MOTION FOR JUDGMENT ON THE PLEADINGS
D. Wilson, Justice of the Superior Court.
lawsuit arises from proceedings before the Defendant
Massachusetts Department of Environmental Protection ("
DEP") concerning Plaintiff's application for a
license amendment under M.G.L.c. 91 and 310 CMR 9.00 to
construct a residential and commercial development, with
maritime aspects such as a dock, on private and Commonwealth
tidelands in Pigeon Cove Harbor in Rockport, Massachusetts
(the " Property"). Under M.G.L.c. 30A, § 14,
Plaintiff seeks to vacate the Final Decision entered by DEP
denying Plaintiff's license amendment application.
now moves for judgment on the pleadings under Mass.R.Civ.P.
12(c), arguing that DEP's Recommended Final Decision
dated October 27, 2015 (the " Decision"),
adopted as DEP's ruling in the Final Decision, suffers
from both procedural and legal errors. For the following
reasons, I will deny Plaintiff's motion, and will direct
the entry of judgment in favor of DEP and its co-defendant
The Creation and History of Pigeon Cove Harbor
heart of this case is the effect of a law enacted nearly two
centuries ago. In 1830, the state legislature passed a law,
found in the record at AR 175-179,  that created a
corporation " by the name of the Pigeon Cove Harbor
Company" (" PCHC") and authorized PCHC "
to erect and maintain a pier or breakwater" at a certain
described location " in Pigeon Cove in the town of
Gloucester."  St. 1831, c. 34 (the " 1830
Act"),  § 1. For the purpose of
constructing this structure, the 1830 Act allowed PCHC to
" lay out one or more parcels of flats, shores, and
uplands . . . in any direction most convenient for them,
" up to certain specified distances " above high
tide mark" and " into the sea." Id.,
directly relevant to this appeal is the section of the 1830
Act providing " [t]hat the said corporation shall be
entitled to ask and receive, for their benefit, for all
vessels, rafts or other articles, coming within the said
basin [that would be created by the pier or breakwater] such
dockage or rents, and such wharfage on all goods and property
as shall be landed or taken off within their limits, as such
corporation . . . may determine to be necessary and
sufficient. And the said corporation may contract, by the
year or otherwise, with any person, as to the terms on which
he may have the privilege of using said basin."
Id., § 5.
did indeed build a breakwater, creating a basin now called
Pigeon Cove Harbor. The Property at issue in this appeal
contains upland and tidelands once owned or controlled by
1866, any proposed building on or filling of tidelands has
required approval by a legislatively-created agency. See St.
1866, c. 149 (creating a permanent Board of Harbor
Commissioners to give such approvals). Many years ago, DEP
became the agency responsible for considering applications
for these approvals, under the provisions of what is now
M.G.L.c. 91. PCHC itself obtained licenses from DEP's
predecessor agencies to construct seawalls and to place fill
on Pigeon Cove's tidelands in 1887 in 1895, as did its
successor Cape Ann Tool Company in 1918 and 1941.
Plaintiff's License Amendment Application
Property that is the subject of today's lawsuit was owned
until 2013 by Old Colony Maritime, LLC, a successor in title
to PCHC. In 2008, DEP issued to Old Colony Maritime the most
recent c. 91 license covering the Property. In this 2008
license, DEP authorized Old Colony Maritime to construct a
multi-family residential development on the Property. The
license required Old Colony Maritime to provide certain
public benefits, including open space and public shoreline
Colony Maritime never exercised its rights under the 2008
license. Instead, it sold the Property to Plaintiff in 2013.
Plaintiff decided not to build the development authorized by
the 2008 license, and so on February 25, 2013 it filed with
DEP a request for amendment of that license.
requested amendment sought authorization to build 13 private
single-family homes and one commercial site on filled private
and Commonwealth tidelands. In addition, Plaintiff sought to
convert an existing industrial building to commercial uses.
The amendment application also sought approval for a 10-berth
recreational marina on previously dredged, flowed private
tidelands, and a water transportation dock of about 260 feet
in length on flowed Commonwealth tidelands. Also part of the
amendment application were requests for approval of
commercial uses and parking. The amendment application also
contemplated public benefits, such as public open space (as
well as private open space).
DEP Proceedings concerning the Amendment Application
contemplated by its regulations under c. 91, DEP sought
public comment on Plaintiff's amendment application. At
the request of the Rockport Board of Selectman, DEP held a
public hearing on May 7, 2013, which drew about 86 residents.
Written comments were submitted by municipal boards, state
agencies, state legislators, and at least 168 citizens. Only
two of the written comments were in support of the project.
response to public comments, in November 2013 Plaintiff filed
with DEP an updated plan that included significant
differences from the February 2013 amendment application. In
March 2014, Plaintiff submitted additional revised plans,
also showing substantial changes. Among the changes were
increasing parking area, removal of a fisherman's supply
and staging area, new areas of paved marine infrastructure
storage in the former public open space, removal of a public
patio area, and construction of the fence that would block
pedestrian access to filled tidelands. DEP determined that
these substantial changes submitted after the close of the
public comment period, some of them affecting public
benefits, would require further public review. Therefore DEP
reopened the matter for public comment, and held a second
public hearing in July 15, 2014.
point Plaintiff suggested for the first time that DEP lacked
legal authority to review most aspects of Plaintiff's
plans, because " [t]he work described in the plans is
authorized under Chapter 34, Acts of 1830, dated February 5,
1831." Email from Plaintiff's
then-counsel to DEP dated July 21, 2014, AR 199.
Plaintiff's counsel stated that the 1830 Act "
permits my client, as successor to Pigeon Cove Land [sic]
Company, to 'lay out parcels of flats, shores and
uplands, to build a basin, receive dockage and rents, and to
contract with anyone for the privilege of using the
basin.' " Id.  With this language of the
1830 Act, counsel asserted, " The public's right to
freely fish, fowl, and navigate [that is, the usual "
public's right" in tidelands] was expressly
extinguished by the legislature." Id. As a
result, Plaintiff's counsel went on, " [M]y client
is hereby simplifying the Department's review. We are
officially withdrawing the pending license amendment
application as being reviewed pursuant to any procedure other
than Section 20 of M.G.L. Chapter 91." Id.
Section 20 of c. 91 applies where someone " is
authorized by the general court to build over tide waters a
bridge, wharf, pier or dam, to fill flats or drive piles
below high water mark." In such cases DEP is not
authorized to do its usual full-blown c. 91 licensing
process; instead, DEP may review the plans and alter them
only to make the work " consistent with the legislative
grant, " in this case the 1830 Act. M.G.L.c. 91, §
month later, in apparent response to DEP's request that
Plaintiff explain its legal position concerning the 1830 Act,
Plaintiff's counsel wrote a five-page letter to DEP.
Letter from Plaintiff's counsel to DEP dated August 20,
2014, AR 207-211. In that letter, Plaintiff's
counsel made the legal argument later considered by DEP in
the Decision under appeal, and now to be considered by the
Superior Court. DEP rejected this legal argument,
reviewed all aspects of the work proposed in the license
amendment application, and applied the usual c. 91 standards.
91 license application is decided in the first instance by
DEP's Wetlands and Waterways Regulation Program. On
December 8, 2014, the Program Director of that Program issued
a denial of the amendment application (the " Initial DEP
Decision"). AR 95-100.
exercised its right to an internal appeal at DEP to the
Office of Appeals and Dispute Resolution. Before that body,
the parties filed cross motions for summary decision. During
the briefing of those motions, Plaintiff took the position
that the Initial DEP Decision " mistakenly references
the old development plans, as if they were still under
construction consideration." Plaintiff's Rebuttal
and Reply Memorandum dated July 17, 2015 at 4, AR 362. Then,
as an attachment to this rebuttal and reply brief, Plaintiff
filed new plans for its project, or at least for the
water-dependent aspects of it. AR 375-377.
Presiding Officer in the DEP Office of Appeals and Dispute
Resolution reviewed the motions, the Administrative Record,
and the applicable law. On October 27, 2015, he ruled "
that DEP correctly determined that the Pigeon Cove Act did
not extinguish any public trust rights and that DEP correctly
applied the Waterways Act [that is, c. 91] and the
Regulations to the merits of the Project, resulting in its
denial." Decision at 2, AR 480. Consequently the
Presiding Officer issued the Decision at issue here, which
the Defendant DEP Commissioner adopted as DEP's Final
Decision on October 29, 2015. AR 503.