THE LANDING GROUP, INC.
DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.
Heard: May 9, 2018.
action commenced in the Superior Court Department on November
case was heard by Paul D. Wilson, J., on a motion for
judgment on the pleadings.
Richard A. Nylen, Jr., for the plaintiff.
M. Dundin, Assistant Attorney General, for the defendants.
Present: Rubin, Desmond, & Singh, JJ.
case arose when the plaintiff, The Landing Group, Inc.,
applied to the Department of Environmental Protection (DEP)
for a license amendment under G. L. c. 91 and 310 Code Mass.
Regs. §§ 9.00 et seq. (2008), 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. The application sought an
amendment of a license issued in 2008 by the DEP to the
previous owner of the property. A public hearing was held on
the plan the plaintiff submitted with the application, and
the plans were twice revised during the public comment and
the second amendment was accepted by the DEP, an additional
hearing was held on that amended plan because, by that point,
the DEP had found that the proposal was so different from the
one originally submitted that a new public comment period was
required. In each of the two cases of amendment, new plans
were submitted by the plaintiff, all including both waterside
and nonwaterside uses.
the second hearing was held on the "revised final
project plans" submitted in March, 2014, the plaintiff
sent an electronic mail message (e-mail) to the DEP
purporting to "withdraw the pending license amendment
application as being reviewed pursuant to any procedure other
than [§] 20 of [G. L. c] 91."
Laws c. 91, § 20, provides a more limited DEP review of
plans for building bridges, wharves, piers, and dams over
tidewaters under legislative authorizations of which several
hundred were enacted in the late Eighteenth and early
Nineteenth Centuries. See Trio Algarvio, Inc. v.
Commissioner of the Dept. of Envtl. Protection, 440
Mass. 94, 95 (2003). After private development spurred by
these authorizations became "rapid and chaotic,"
the Legislature in 1866 passed a statute creating a board of
harbor commissioners -- the DEP's predecessor -- whose
permission would be required for building on tidelands where
the authority to build derived from past legislative
authorizations. See J_d. at 99-100. See also St. 1866, c.
149. According to the current version of § 20, the DEP
may review plans with respect to these tidelands only for
their consistency with the legislative authorization, and may
only alter them "consistent with the legislative
grant." This contrasts with the DEP's review of most
other projects, according to which the DEP may issue a
license or permit only if the project "serves a proper
public purpose which provides greater benefit than detriment
to the rights of the public in said lands." 310 Code
Mass. Regs. § 9.31(2) (1996).
plaintiff's e-mail was apparently intended to convey that
it now sought review only under G. L. c. 91, § 20. For
the first time the plaintiff suggested that there was
legislative authorization for development of the property
under an 1831 statute which is denominated "An Act to
incorporate the Pigeon Cove Harbor Company." St. 1831,
c. 34. A further e-mail reiterated that § 20 applied and
that the DEP review was limited to determining whether there
was "conformance with the authorizing legislation."
on August 20, 2014, plaintiff's counsel sent a five-page
letter to the DEP which stated more clearly that the
plaintiff purported to withdraw its plans seeking approval of
the land-based development, and that it sought approval only
of the "in-water work" aspect of the plans it had
filed. No new plans showing only these so-called
"waterside" uses -- the nomenclature used by DEP
before us and that we will also employ for present purposes
-- were filed with any of these e-mails or the letter.
December, 2014, the DEP issued an order signed by the program
director of the DEP's wetlands and waterways regulation
program denying the amended application for a license
amendment. That decision reviewed the amended plan submitted
in March, 2014. That is, the DEP did not review only the
waterside portion of the plan under ...