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Miramar Park Association, Inc. v. Town of Dennis

Supreme Judicial Court of Massachusetts, Barnstable

August 30, 2018

MIRAMAR PARK ASSOCIATION, INC., & others[1]
v.
TOWN OF DENNIS.

          Heard: March 8, 2018

         Civil action commenced in the Superior Court Department on September 10, 2014. The case was heard by Cornelius J. Moriarty, II, J., on motions for summary judgment.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Gregg J. Corbo for the defendant.

          Brian J. Wall for the plaintiffs.

          Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          GAZIANO, J.

         In this appeal, we are asked to consider whether dredging and beach nourishment projects undertaken by the town of Dennis violated Massachusetts environmental regulations by requiring that materials dredged from the mouth of a tidal river be deposited on a publicly-owned beach, rather than on an adjacent, privately-owned beach. The plaintiffs, homeowners and a homeowners' association, commenced an action in the Superior Court, pursuant to G. L. c. 214, § 7A, against the town, seeking injunctive relief and a declaratory judgment on their claim that the town's actions violated a Department of Environmental Protection (DEP) regulation designed to protect beaches that are downdrift from jetties from loss of sediments caused by the jetties. After both parties filed cross motions for summary judgment, a Superior Court judge concluded that the town's extension of a jetty at the mouth of Swan Pond River in the early 1990s triggered the requirements of 310 Code Mass. Regs. § 10.27 (2014), and allowed the plaintiffs' motion. The judge also issued an injunction permanently requiring the town "periodically [to re]dredge [the river]" and to deposit the dredged material on the plaintiffs' private beach. The town appealed, and we transferred the case from the Appeals Court on our own motion.

         We conclude that judgment should not have entered for the plaintiffs, and that judgment instead should have entered for the town. Among other things, the plaintiffs have introduced nothing in the summary judgment record showing that the town's extension of the jetty violated, or even triggered, the requirements of 310 Code Mass. Regs. § 10.27(4) (c) . In addition, as the judge found, the town's subsequent dredging of the river did not trigger the requirements of that regulation. Because the plaintiffs would be unable to prove an essential element of their claim at trial, the order of injunction must be vacated, and the judgment allowing summary judgment for the plaintiffs must be reversed.

         1. Statutory overview.

         A number of potentially overlapping statutes and regulations are at issue in this case. Because an understanding of the interrelationships among them is essential to understanding the issues raised, we describe each in some detail.

         General Laws c. 214, § 7A, [2] an environmental citizen suit provision, allows a group of at least ten residents of the Commonwealth to file a complaint in the Superior Court when damage to the environment is occurring or is about to occur as a result of an action by, inter alia, a municipality, that is in "violation of a statute, ordinance, by-law or regulation the major purpose of which is to prevent or minimize damage to the environment." See Boston v. Massachusetts Port Auth., 364 Mass. 639, 645 (1974). The statute defines "damage to the environment" as "any destruction, damage or impairment, actual or probable, to any of the natural resources of the [C]ommonwealth, whether caused by the defendant alone or by the defendant and others acting jointly or severally." G. L. c. 214, § 7A.

         The wetlands protection act, G. L. c. 131, § 40 (act), "was created to protect wetlands from destructive intrusion," Healer v. Department of Envtl. Protection, 7 3 Mass.App.Ct. 714, 716 (2009), and, inter alia, governs the dredging of wetlands and lands bordering waters. See G. L. c. 131, § 40. The act requires, in relevant part, that a party wishing to dredge first must file a written notice with a local issuing authority, often, as in this case, a local conservation commission, which exercises local regulatory authority under the act. See G. L. c. 131, § 40. Following a hearing, the authority shall determine if the project affects an area that is "significant to public or private water supply, to the groundwater supply, to flood control, to storm damage prevention, to prevention of pollution, to protection of land containing shellfish, to the protection of wildlife habitat or to the protection of fisheries." Id. If so, the issuing authority issues a written order that "impose[s] such conditions as will contribute to the protection of [these] interests . . . and all work shall be done in accordance therewith." Id. No work may be done without "receiving and complying with [this] order of conditions." Id. DEP has promulgated regulations under G. L. c. 131, § 40, to protect wetlands. See 310 Code Mass. Regs. §§ 10.00 (2014). Specifically, 310 Code Mass. Regs. §§ 10.21-10.37 are applicable to all dredging covered under G. L. c. 131, § 40. See 310 Code Mass. Regs. § 10.21. These regulations are "performance standards . . . intended to identify the level of protection the issuing authority must impose in order to contribute to the protection of the interests of [G. L.] c. 131, § 40." Id. If the issuing authority determines that a project will affect one of the protected interests under the act, the issuing authority must "order specific measures and requirements for each proposed project which will ensure that the project is designed and carried out consistent with the required level of protection," and must memorialize those requirements in an "[o]rder of [c]onditions which is understandable and enforceable." Id.

         A number of other State and Federal statutes and regulations concerning water quality also are applicable to the areas at issue in this case. General Laws c. 21, § 27, provides that "[i]t shall be the duty and responsibility of the division [of water pollution control] to enhance the quality and value of water resources and to establish a program for prevention, control, and abatement of water pollution" in the Commonwealth. DEP has issued water quality regulations pursuant to G. L. c. 21, § 27, and G. L. c. 91, §§ 52-56. See 314 Code Mass. Regs. §§ 9.00 (2014). Section 9.01(1) of those regulations provides that they "establish[] procedures and criteria for the administration of Section 401 of the [F]ederal Clean Water Act, 33 U.S.C. [§] 1251." Section 9.01 (3)(a) of those regulations, in particular, seeks to "protect[] the public health and restor[e] and maintain[] the chemical, physical, and biological integrity of the water resources of the Commonwealth by establishing requirements, standards, and procedures" for dredging. Title 310 Code Mass. Regs. § 9.40(4)(a) (2017), more specifically, governs the spoils of dredging projects. As relevant here, it provides that "in the case of a publicly-funded dredging project, such material shall be placed on publicly-owned eroding beaches." See id.

         Finally, G. L. c. 30B, § 15 (a.) and (b), of the procurement act, provides that a "governmental body shall dispose of a tangible supply that is no longer useful to the governmental body but having resale or salvage value," through "competitive sealed bids, public auction, or established markets."

         2. Background.

         We recite the facts from the judge's statement of "undisputed facts revealed by the summary judgment record," supplemented by other uncontested facts in the record. See Chin v. Merriot, 470 Mass. 527, 529 (2015).

         a. Historic dredging at mouth of Swan Pond River.

         Plaintiff Miramar Park Association owns lot 88 on Land Court Plan 11503-J, a parcel of land on the Nantucket Sound shoreline in the Dennisport area of the town; lot 88 contains a private beach known as Miramar Beach. The individual plaintiffs own easements appurtenant to their properties for the use of Miramar Beach and the upland area of lot 88 for recreational purposes. Lot 88 is located east of the eastern shore of Swan Pond River and Miramar Road, a few lots east of the mouth of the river as it empties into Nantucket Sound. Lot 87 on Land Court Plan 11503-J, and lot 84 on Land Court Plan 11503-I, formerly owned by the same owner who sold the Miramar Beach parcel to the Miramar Beach Association, lie along the shoreline to the west of lot 88. One of the individual plaintiffs, Michael Breen, owns lot 87, to the east of Miramar Road, and lot 84, to the west of that road. In addition, two other plaintiffs, Annemarie and Dean Wasniewski, hold easements over Lot 87.

         On the western side of the Swan Pond River inlet is a stone jetty. The record does not establish when and by whom the jetty was constructed. A study conducted in 2010 by the Woods Hole Group, Inc. (Woods Hole), on behalf of the town commented that the jetty was in existence at least by 1850; a study conducted by a geologist on behalf of the plaintiffs noted that the jetty was constructed between 1935 and 1943. The jetty traps littoral drift material as it is carried along the predominantly west to east direction of the currents in this part of Nantucket Sound. The jetty does not have a sand by-pass system, which would transfer sediment to the eastern side of the inlet. See 310 Code Mass. Regs. § 10.27(4)(c).

         The mouth of Swan Pond River periodically becomes partially filled with sand. This results in reduced tidal flow, which leads to algae blooms, fish kills, and foul odors upstream along the river and in Swan Pond. To facilitate boat navigation and improve water flow, the town has conducted periodic dredging operations at the mouth of Swan Pond River since at least 1980. It dredged the entrance to the river in 1980, 1984, 1988, 1997, 1998, 2000, 2010, and 2014. A planned dredging in 2016 did not take place. The locations of the placement of the fill from the three dredges in 1980, 1984, and 1988 are not indicated in the record. Thereafter, the town has placed sediment removed during the dredging at West Dennis Beach, a public beach located approximately three-quarters of a mile west of the jetty; in the area immediately landward of the jetty, to the west of the river; and, in 1996, on Miramar Beach as well as on West Dennis Beach. After the town deposited the spoils on Miramar Beach, the condition of the beach improved. In May, 1990, the town acquired an easement over property near the western mouth of Swan Pond River, three lots from the coastline, along the river's edge, in conjunction with an engineering study and other efforts to improve water flow and navigation on Swan Pond River. The easement over lot 3-A includes the right to access the property for "dredging, rip rap and environmental purposes."[3]

         At some point in the early 1990s, apparently before October, 1992, [4] the town extended the then existing jetty on the western side of the mouth of the river northward, further upriver, in an effort to prevent the erosion of the western shoreline of the inlet. There is no indication in the summary judgment record whether any permits were obtained for this work from the town's conservation commission or from any relevant State or Federal regulatory body, and, if so, what conditions, if any, were placed on it.[5]

         b. 2010 and 2014 dredging and ...


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