Heard: March 6, 2018.
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
Schofield, Assistant Attorney General, for the defendant.
MacAulay Allen (William A. Zucker also present) for the
Present: Green, C.J., Sacks, & Shin, JJ.
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) 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
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).
Determination of applicability.
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
Administrative appeal. a. Motion for summary
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.
prehearing conference, the hearing officer determined that
"[t]he issues appear to be amenable to resolution by
motion for summary decision." 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
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 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.
Motion to reopen proceeding and take discovery.
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.
November, 2014, the hearing officer denied CWECA's
motion, on three grounds. 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.
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.
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.
Final department action.
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 ...