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Commercial Wharf East Condominium Association v. Department of Environmental Protection

Appeals Court of Massachusetts, Suffolk

June 21, 2018


          Heard: March 6, 2018.

          Civil action commenced in the Superior Court Department on September 24, 2015, A motion for leave to present additional evidence was heard by Peter M. Lauriat, J., and motions to vacate judgment and for reconsideration were considered by him.

          Seth Schofield, Assistant Attorney General, for the defendant.

          John MacAulay Allen (William A. Zucker also present) for the plaintiff.

          Present: Green, C.J., Sacks, & Shin, JJ.

          SACKS, J.

         This appeal presents the question whether a court conducting judicial review under G. L. c. 3OA, § 14, of an agency's adjudicatory decision may issue an order of remand to the agency under § 14 (6)[1] that reverses various agency evidentiary and discovery rulings -- rulings that would ordinarily be reviewed, along with the remainder of the agency's decision, under § 14(7). Here, a Superior Court judge issued such an order and corresponding judgment, and the agency appealed. We conclude that the appeal is properly before us and that the judge erred in acting under § 14(6); the challenge to the agency's rulings should instead have been resolved under § 14(7). We also conclude that instead of entering a judgment, the judge should have retained jurisdiction. We therefore vacate the order and judgment and remand to the Superior Court for further proceedings.


         The plaintiff Commercial Wharf East Condominium Association (CWECA) is an association of owners of condominiums located at the landward end of Boston's Commercial Wharf, but seaward of the historic low water mark, in an area constituting "Commonwealth tidelands" under G. L. c. 91, § 1. The defendant Department of Environmental Protection (department) is charged with administering c. 91, the Waterways Act, which "generally is viewed as an encapsulation of the Commonwealth's public trust authority and obligations" regarding tidelands. Arno v. Commonwealth, 457 Mass. 434, 454 (2010), quoting from Fafard v. Conservation Commn. of Barnstable, 432 Mass. 194, 200 n.11 (2000).

         1. Determination of applicability.

         In 2011, an abutting property owner filed with the department a "request for a determination of applicability, " seeking a ruling that a portion of CWECA's property was being used for nonwater-dependent purposes (parking and vehicular access) and that such uses, not being authorized by statute, were impermissible unless CWECA obtained a license under c. 91. In 2012, the department's waterways regulation program issued a positive determination of applicability, concluding that the property at issue was subject to c. 91 and that its current nonwater-dependent uses were unauthorized.

         2. Administrative appeal. a. Motion for summary decision.

         CWECA filed an administrative appeal of the determination and requested an adjudicatory hearing. CWECA filed a prehearing statement that listed no disputes of fact, but only legal issues, as requiring resolution. CWECA identified the issues as whether its current use of the area in question was authorized either by statute, by an existing c. 91 license, or by correspondence in the 1970s between one of CWECA's predecessors in interest and the State Department of Public Works (DPW), which had administered c. 91 until 1975. See St. 1975, c. 706, §§ 123, 312.

         After a prehearing conference, the hearing officer determined that "[t]he issues appear to be amenable to resolution by motion for summary decision."[2] In December, 2012, CWECA filed such a motion, seeking to overturn the positive determination of applicability. The department's waterways regulation program and the abutter opposed the motion, and the abutter asked that the positive determination be upheld.

         In 2013, the hearing officer issued a recommended decision concluding that there were no genuine issues of material fact and that as a matter of law the positive determination should be upheld. See 310 Code Mass. Regs. § 1.01(11)(f) (2004) ("Summary decision, when appropriate, may be made against the moving party"). Of particular note, the hearing officer ruled that a 1964 statute relied upon by CWECA[3] had not extinguished public trust rights in the Commercial Wharf area, as any legislation doing so must be explicit; that absent such legislation, the department's c. 91 licensing process provided the mechanism for protecting public trust rights in tidelands; and that correspondence of the type cited by CWECA could not satisfy c. 91.

         b. Motion to reopen proceeding and take discovery.

         While the recommended decision was awaiting final action by a deputy commissioner of the department (the commissioner having recused himself), CWECA filed a "motion to reopen proceeding and take discovery." The motion argued that the recommended decision had revealed disputes of fact as to whether the DPW had authorized the property uses in question "through license or correspondence" in the 1970s. CWECA sought to take discovery from the department and others to explore the existence of such documents.[4]

         In November, 2014, the hearing officer denied CWECA's motion, on three grounds.[5] First, the hearing officer ruled that the motion was procedurally improper, because the recommended decision had ordered the parties not to move to reargue any part of that decision now that it was before the deputy commissioner for final action.

         Second, although a department regulation allowed for a motion to reopen a hearing to submit "new evidence, " the hearing officer ruled that CWECA had failed to show that "the evidence to be introduced was not reasonably available for presentation at the hearing, " 310 Code Mass. Regs. § 1.01(14) (e) (2004), nor had CWECA previously asserted that any material facts were in dispute.

         Third, the hearing officer ruled that the evidence that CWECA hoped to discover was legally immaterial. To the extent that CWECA hoped to discover a c. 91 license from the 1970s authorizing the disputed uses, not only had CWECA failed to find any evidence of such a license in the department's publicly-accessible licensing files, but, by law, any c. 91 license not recorded by the licensee at the registry of deeds within a specified time after issuance (formerly one year, now sixty days) would be void. See G. L. c. 91, § 18. To the extent that CWECA hoped to discover correspondence approving the disputed uses, the existence of such correspondence was "purely speculative, " and in any event such correspondence could not authorize a particular use of tidelands. Only an explicit statute or a c. 91 license could do so.

         c. Final department action.

         At the same time as the hearing officer denied CWECA's motion to reopen, the department's deputy commissioner adopted the recommended decision as the department's final ...

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