Author:
Katherine Polis
Juris Doctor, 2013
New England Law | Boston
Mostyn v. Department of Environmental Protection, 83 Mass App. Ct. 788 (2013)
Facts
The Sea Pines Condominium Association (Sea Pines) owned a lengthy stretch of beach in Brewster, Massachusetts. For many years, members of Sea Pines stored kayaks on a coastal dune located on this beach. Lot 106-2 Dune Road Realty Trust owned the property are the property owners of the area upland of where the kayaks were stored. The sole beneficiary of the trust, Joseph E. Corcoran, objected to the storage of kayaks in front of his property, as well as, the attendant foot traffic it caused.
The conservation commission of Brewster determined that the storage of the kayaks was an activity subject to regulation pursuant to the Wetlands Protection Act, Mass. Gen. Laws. Ch. 131, §40. Therefore Sea Pines could only continue using the land in this manner if they obtained an order of conditions allowing this type of use. The Department of Environmental Protection (DEP) issued a final decision temporarily allowing the kayak storage to resume under certain specified conditions. The Suffolk Superior Court (Massachusetts) affirmed. Corcoran then appealed to the Appeals Court of Massachusetts.
Summary
DEP determined that the storage of kayaks by members of Sea Pine on a coastal dune was subject to regulation under the Massachusetts Wetlands Protection Act, G.L. C. 131, §40, and therefore could only continue if the owner obtained an order of conditions allowing such use. The plaintiff, Corcoran, appealed this decision by the Department of Environmental Protection (DEP). The appellate court held that the fact that 310 Mass. Code Regs §10.28(3)(1997) did not list this type of boat storage structure as an example of a permitted use on coastal dunes did not mean that this use was pro se prohibited.[1] The current degraded state of the wetlands resource area was taken into consideration in determining whether to allow kayak storage on the dune to continue. The court also held that DEP did not violate its own regulations by providing the owner temporary approval to resume kayak storage on the dune, and structuring its approval toward ensuring that the applicable performance standards are met.
The storage of the boats and attendant foot traffic over the years had an adverse impact on the dune. Specifically, the portion of the dune was a foot or more lower in elevation than surrounding areas and was “denuded of vegetation”. This made the dune more susceptible to erosion.
The first issue raised was whether Corcoran had standing to appeal this decision. The presiding officer determined that Corcoran was unable to demonstrate that the project would cause him harm Corcoran. Therefore, he did not have standing to appeal an adverse decision by the agency.[2] However, the court chose to focus on the second issue, the merits, as in instances “where the merits have been fully briefed and the question of standing is not outcome determinative, we decline to resolve standing and instead turn to the merits.”[3]
Examining the merits required two separate issues to be resolved. The first issue was whether the regulation prohibits boat storage structures on coastal dunes regardless of whether the applicable performance standards would be met. The regulation lists six performance standards, while another subsection of the regulation lists three specific kinds of projects that “may be permitted provided they adhere to” those standards.[4] As with any agency, the interpretation of its own regulations is entitled to “considerable deference” and must be upheld unless it is inconsistent with the plain language of the regulation or otherwise arbitrary or unreasonable.[5] The enumeration of three specific allowable uses serves at least two functions: 1) it demonstrates three examples, while ensuring that the strict performance standards set forth in 310 Code Mass. Regs. §10.28(3) are met, and 2) since the three types of projects that are identified as approvable in §10.28(5) are limited in nature, the list serves to highlight the high degree of scrutiny that other types of projects are to be given, thus interpretation is not superfluous.
The second issue resolved dealt with Corcoran’s argument that even if DEP could allow such structures on coastal dunes if they properly determined that the applicable performance standards would be met, it misapplied those standards here. The presiding officer identified a three-year time frame as the appropriate period for Sea Pines to demonstrate that it could both reestablish vegetation on the dune and implement seasonal kayak storage racks there without causing any ongoing adverse environmental impacts. There was nothing mentioned in the regulation that precluded DEP from adopting this temporal perspective in determining whether its performance standards would be met. Due to scientific uncertainty and a practical real world contest, there was no violation of the agency’s statutory or regulatory duties.
Ultimately, DEP provided Sea Pines only temporary approval to resume kayak storage on the dune, and its approval was structured toward ensuring that the applicable performance standards are met.
Editorial Note
DEP has the authority to set a temporal perspective like the one they established here, and the reviewing courts agree with this decision. As the court notes, the project put in place here is designed to try to achieve restoration on a more expedited basis than natural restoration. The fact that DEP is giving Sea Pines three years is proof that they may be using this period to give them a chance and to see what the next step will be in 2016.
Click for the court's opinion.
Citations
[1] 310 Code Mass. Regs. §10.28(3) (1997) provides:
“Any alteration of, or structure on, a coastal dune or within 100 feet of a coastal dune shall not have an adverse effect on the coastal dune by:
(a) affecting the ability of waves to remove sand from the dune; (b)Disturbing the vegetative cover so as to destabilize the dune; (c) causing any modification of the dune from that could increase the potential for storm or flood damage; (d) interfering with the landward or lateral movement of the dune;(e) causing removal of sand from the dune artificially; or (f) interfering with mapped or otherwise identified bird nesting habitat”.
310 Code Mass. Regs. §10.28(3) (1997) lists three types of projects that “may be permitted, provided they adhere to those standards. The three permitted projects are “(a) pedestrian walkways, designed to minimize the disturbance to the vegetative cover and traditional bird nesting habitat; (b) fencing and other devices designed to increase dune development; and (c) plantings compatible with the natural vegetative cover”.
[2] Under DEP’s wetlands regulations, “person aggrieved” is defined as follows:
“any person who, because of an act or failure to act by the issuing authority, may suffer an injury in fact which is different either in kind or magnitude from that suffered by the general public and which is within the scope of the interests identified id [G.L.] c. 131, § 40”.
[3] See Boston Gas Co. V. Department of Pub. Utils., 368 Mass. 780, 805, 336 N.E.2d 713 (1975).
[4] See 310 Code Mass. Regs. § 10.28(3) (1997); 310 Code Regs. § 10.28(5) (1997).
[5] Warcewicz v. Department of Envtl. Protection, 410 Mass. 548, 550, 574 N.E.2d 364 (1991).
