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The Landing Group, Inc. v. Massachusetts Department of Environmental Protection

Superior Court of Massachusetts, Suffolk

February 8, 2017

The Landing Group, Inc.
Massachusetts Department of Environmental Protection et al. [1] No. 136131


          Paul D. Wilson, Justice of the Superior Court.

         This 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.

         Plaintiff 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"), [2] 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 Commissioner.


         1. The Creation and History of Pigeon Cove Harbor

         At the 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, [3] 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." [4] St. 1831, c. 34 (the " 1830 Act"), [5] § 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., § 2.

         Most 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.

         PCHC 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 PCHC.

          Since 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.

         2. Plaintiff's License Amendment Application

         The 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 walkways.

         Old 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.

         Plaintiff's 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).

         3. DEP Proceedings concerning the Amendment Application

         As 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.

         In 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.

         At this 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[6] 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. [7] 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. [8]

          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, § 20.

         About a 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.[9] 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.[10] DEP rejected this legal argument, reviewed all aspects of the work proposed in the license amendment application, and applied the usual c. 91 standards.

          A c. 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.

         Plaintiff 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.

         A 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.

         This appeal followed.


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