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

Appeals Court of Massachusetts, Suffolk

August 21, 2018

THE LANDING GROUP, INC.
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[1]

          Heard: May 9, 2018.

         Civil action commenced in the Superior Court Department on November 27, 2015.

         The case was heard by Paul D. Wilson, J., on a motion for judgment on the pleadings.

          Richard A. Nylen, Jr., for the plaintiff.

          Louis M. Dundin, Assistant Attorney General, for the defendants.

          Present: Rubin, Desmond, & Singh, JJ.

          RUBIN, J.

         This 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 hearing process.

         After 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.

         After 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."

         General 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).

         The 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."

         Finally, 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.

         In 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 ...


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