BRIAN S. HICKEY & another 
CONSERVATION COMMISSION OF DENNIS & others.
Heard: May 3, 2018.
action commenced in the Superior Court Department on April
21, 2016. The case was heard by Gary A. Nickerson, J., on a
motion for judgment on the pleadings.
Margaret P. Stolfa for the plaintiffs. Justin Perrotta for
Pathways Association, Inc.
Present: Milkey, Hanlon, & Singh, JJ.
March 3, 2016, the conservation commission of Dennis
(commission) issued an approval pursuant to the local
wetlands by-law (by-law) for a walkway and stairs (walkway)
proposed by Pathways Association, Inc. (Pathways). The
walkway is designed to allow certain inland owners to use
their easements to access Cape Cod Bay. Brian and Mary Hickey
(the Hickeys), who own property that abuts the site of the
proposed walkway, brought an action in the nature of
certiorari challenging the commission's approval. See G.
L. c. 249, § 4. On the Hickeys' motion for judgment
on the pleadings, a Superior Court judge ruled that they
lacked standing to maintain this action, and judgment entered
affirming the commission's decision. We affirm.
case involves a twenty-foot wide access way (Hickey Way) that
runs from Shore Drive to Cape Cod Bay in Dennis. Hickey Way
was the subject of earlier litigation. See Hickey v.
Pathways Assn., Inc., 472 Mass. 735 (2015)
(Hickey I_) . Together with the couple that owned
the property on the other side of Hickey Way, the Hickeys
brought a Land Court action seeking to establish that each
couple owned to the center line of the way, and that various
owners of nearby inland lots had no rights to use it.
Id. at 738. The Hickeys named Pathways -- the
incorporated association representing the inland owners in
their quest to use Hickey Way -- as the lead defendant in
that action. The Supreme Judicial Court eventually ruled in
favor of Pathways and the inland owners. Id. at
738-739. The court specifically held that the underlying fee
interest in Hickey Way was not held by the Hickeys and their
coplaintiffs, but instead had been retained by the original
developers of the tract that included all of the respective
properties (thereafter devolving to the original
developers' heirs) . Id. at 743. The court also
held that the inland owners hold easements in Hickey Way
allowing them to use it for access. Ibid.
area through which Hickey Way runs includes a steep, armored
coastal bank that lies parallel to the water. Because of this
topography, the inland owners cannot make use of their access
rights in Hickey Way unless some version of the walkway is
built there.On the heels of its victory in
Hickey I, Pathways sought to build such a structure
over Hickey Way, and it filed a permit application -- known
as a notice of intent --to do so. On their own, and through
their counsel and wetlands consultant, the Hickeys submitted
comments in opposition to the proposal. In particular, the
Hickeys opposed the width of the proposed walkway and the
fact that the proposal included landings (measuring eight by
ten feet each), on which people could congregate or store
items. The Hickeys were concerned that people congregating in
the landing areas would disrupt their enjoyment of their
nearby home. They were also concerned that people who used
the walkway to reach the intertidal beach area at the bottom
of the stairs inevitably would stray onto their portion of
the beach and use it for general beach purposes.
commission unanimously approved the project by issuing an
order of conditions pursuant to both G. L. c. 131, § 40
(the Wetlands Protection Act), and the by-law. The Hickeys
filed the current certiorari action challenging the approval
issued under the by-law, and they simultaneously filed an
administrative appeal with the Department of Environmental
Protection (DEP) pursuant to the Wetlands Protection Act. In
the latter appeal, the DEP issued a superseding order of
conditions that approved a somewhat smaller version of the
walkway. Unsatisfied with this partial victory, the Hickeys
filed a further administrative appeal at the DEP. However,
before that appeal was heard, the DEP stayed the matter until
resolution of the Hickeys' certiorari action (then
pending in the Superior Court, now before us). After the
commission assembled the record that had been before it, the
Hickeys filed a motion for judgment on the pleadings, to
which Pathways filed an opposition. Without addressing the
underlying merits, the judge ruled that the Hickeys lacked
standing to maintain this action.
demonstrate standing to bring a certiorari action to
challenge the wetlands approval issued by the commission, the
Hickeys must "make a requisite showing of a reasonable
likelihood that [they have] suffered injury to a protected
legal right." Higby/Fulton Vineyard, LLC v. Board of
Health of Tisbury, 70 Mass.App.Ct. 848, 850 (2007).
Unlike in the zoning context, the Hickeys do not enjoy
presumptive standing based on their status as abutters.
their standing was challenged, the Hickeys did not submit
affidavits seeking to establish how they would be adversely
affected by the proposed walkway. Instead, they relied on the
comments that they, their attorney, and their wetlands
consultant had submitted to the commission as part of the
administrative process. As the judge accurately pointed out,
"the heart of the [Hickeys'] opposition to the
proposed [walkway] is their fear that it will increase
recreational activity within the private way, potentially
spilling over onto the [Hickeys'] private property, which
the [Hickeys] find offensive or injurious." These
concerns do not fall within the wetlands-related interests
protected by the by-law, and therefore cannot form the basis
of standing to challenge a decision made under it. See
Enos v. Secretary of Envtl. Affairs, 432 Mass. 132,
135 (2000), quoting from Massachusetts Assn. of Indep.
Ins. Agents & Brokers, Inc. v. Commissioner of
Ins., 373 Mass. 290, 293 (1977) (to establish standing
to challenge governmental action, alleged injury must fall
"within the area of concern of the statute or regulatory
extent that the Hickeys' comments addressed wetlands
issues at all, they essentially argued that Pathways had not
met its burden of proof with regard to such issues, rather
than trying to demonstrate affirmatively what specific harms
the walkway would cause. We agree with the judge that the
Hickeys' factual assertions about such harm were raised
"in a conclusory fashion, and [were unsupported by]
expert evidence, technical analysis, or particular facts in
the record that establish [the purported risks].
" On this record, we conclude that the
Hickeys have not "put forward evidence to show actual,
substantial injury" to the interests protected by the