Stone-Ashe v. Dep't of Envtl. Prot. & Another

86 Mass.App.Ct. 16

12 N.E.3d 1011

Wendy STONE–ASHE, trustee,¹

v.DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.²

No. 13–P–489.

Appeals Court of Massachusetts, Suffolk.

Argued Jan. 14, 2014.

Decided July 16, 2014.

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

Jo Ann Shotwell Kaplan, Assistant Attorney General, for the defendants.

Present TRAINOR, GRAHAM, & AGNES, JJ.

GRAHAM, J.

The plaintiff, Wendy Stone–Ashe, trustee of the Stone– Ashe Realty Trust,³ appeals from a Superior Court judgment that affirmed a final decision of the Commissioner (commissioner) of the Department of Environmental Protection (department), which concluded that a seawall on the plaintiff's property lies seaward of the historic high water mark and, therefore, is under the jurisdiction of the department and subject to public rights pursuant to G.L. c. 91. Substantially for the reasons stated in the decisions of the commissioner and the Superior Court judge, we affirm.

Background. 1. Statutory and regulatory framework. "Under the public trust doctrine, the Commonwealth holds tidelands in trust for the use of the public for, traditionally, fishing, fowling, and navigation." Moot v. Department of Envtl. Protection, 448 Mass. 340, 342, 861 N.E.2d 410 (2007), S.C., 456 Mass. 309, 923 N.E.2d 81 (2010). See generally Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629, 631–632, 393 N.E.2d 356 (1979) (detailing history of public trust doctrine). In enacting G.L. c. 91, the Legislature delegated at least some of its authority to preserve and regulate the Commonwealth's tidelands to the department. Moot v. Department of Envtl. Protection, supra at 347, 861 N.E.2d 410. General Laws c. 91, § 1, inserted by St. 1983, c. 589, § 21, defines "[t]idelands" as "present and former submerged lands and tidal flats lying below the mean high water mark." "Private tidelands" are defined as "tidelands held by a private party subject to an easement of the public for the purposes of navigation and free fishing and fowling and of passing freely over and through the water." Ibid.

The department's jurisdiction extends only to the tidelands seaward of the historic high water mark. "[B]ecause actual high and low water marks can change over time, notably pursuant to licenses to fill flats and submerged lands with soil, the starting point for determining the public's rights in tidelands (filled or unfilled) must be the historic, or ‘primitive,’ high and low water marks." Arno v. Commonwealth, 457 Mass. 434, 437, 931 N.E.2d 1 (2010). Accordingly, the department has promulgated regulations, as authorized by G.L. c. 91, § 18, defining the historic high water mark and guiding the department's determination of its location. See 310 Code Mass. Regs. §§ 9.00 et seq. (1996). The regulations define the "historic high water mark" as "the high water mark which existed prior to human alteration of the shoreline by filling, dredging, excavating, impounding, or other means. In areas where there is evidence of such alteration by fill, the [d]epartment shall presume the historic high water mark is the farthest landward former shoreline which can be ascertained with reference to topographic or hydrographic surveys, previous license plans, and other historic maps or charts, which may be supplemented as appropriate by soil logs, photographs, and other documents, written records or information sources of the type on which reasonable persons are accustomed to rely in the conduct of serious business affairs."⁴ 310 Code Mass. Regs. § 9.02 (2000). It is uncontested that the harbor at issue has been altered by fill and that the determination of the location of the high water mark under the regulations dictates the department's jurisdiction over the seawall at issue.

2. Procedural history. In 2006, the Harbor Access Group (HAG), a group of Rockport residents, filed a request for a determination of applicability as to whether the seawall at issue (seawall-walkway)⁵ is under the department's jurisdiction. See 310 Code Mass. Regs. § 9.06 (2000). The department issued a positive determination. The plaintiff appealed to the Division of Administrative Law Appeals. HAG was allowed to intervene as a party. An administrative magistrate conducted an evidentiary hearing and a battle of experts ensued.

The administrative magistrate adopted the opinion of the plaintiff's expert, Erich Gundlach, a coastal biologist, and recommended that the commissioner issue a final decision reversing the initial determination of applicability. On further review, the commissioner issued a final decision in which she declined to adopt the administrative magistrate's recommendation. The commissioner found Gundlach's approach inconsistent with the department's regulations and adopted the position of HAG's expert, professional surveyor Sean Ewald, and the department's witness, Alex Strysky, a department employee experienced in G.L. c. 91 jurisdictional determinations. The commissioner concluded that the seawall-walkway is seaward of the historic high water mark and, therefore, under the department's jurisdiction. On the plaintiff's appeal pursuant to G.L. c. 30A, § 14, a Superior Court judge affirmed the final decision of the commissioner.⁶ From the resulting judgment, the plaintiff brought this appeal.

3. Facts. We draw the facts from the decision of the administrative magistrate, supplemented by the commissioner's decision and the administrative record where necessary. The plaintiff owns a single-family residence located at 25 Dock Square in Rockport and situated between Lumber Wharf to the west and Middle Wharf to the east in a portion of "Old Harbor," variously referred to as the "whirlpool" and the "Bason" or "Basin." A third wharf, White Wharf,⁷ east of Middle Wharf, comprises the northeasterly arm of the harbor. The seawall-walkway at issue is a ten-foot-wide seawall topped with a cement walkway that runs 108 feet across the plaintiff's property and connects Lumber Wharf and Middle Wharf. Directly landward of the seawall-walkway is another granite wall which one of the plaintiff's experts has referred to as a "retaining wall."

The record reflects that the plaintiff's property derives from property once owned by Ebenezer Pool dating back to 1746. On April 28, 1746, the proprietors of Gloucester granted Pool permission to construct a wharf on the southwest side of the whirlpool opposite his "other wharf," likely White Wharf or a precursor to it. They also granted Pool "all the land or flats there needed for that service."⁸ Nearly sixty-five years later, on February 25, 1811, the Legislature established the Sandy Bay Pier Company for the purpose of erecting a stone pier. Before agreeing to transfer to the Sandy Bay Pier Company the property which had been granted to Pool in 1746, Pool's grandson, also named Ebenezer Pool, successfully negotiated to retain certain uplands and flats. In a letter dated January 29, 1811, to the committee appointed for the purpose of examining the request to incorporate the Sandy Bay Pier Company, Pool withdrew his objection, indicating that the incorporators had agreed to his proposal to allow him forty feet of tidal flats adjoining his seawall pursuant to a "plan taken January 26, 1811." Thereafter, in an 1813 deed to the Sandy Bay Pier Company, the grandson conveyed the land granted to his grandfather in 1746, but reserved "that part of the said Premises which I have heretofore enclosed and also forty feet of said flats running towards the Sea from each corner of my Sea Wall as it now stands and being about one hundred and six feet by the Sea Shore." The plaintiff's property derives from the retained lot. Other than the reference to an existing "Sea Wall" contained in the 1813 deed and 1811 letter, the record is devoid of further information on the history of the two walls on the plaintiff's property.

4. Expert testimony. a. HAG's expert. HAG's case primarily rested on a plan created by the BSC Group, Inc. (BSC), a surveying company, and the testimony of its professional surveyor, Sean Ewald.^{9 ,10} As explained by Ewald, BSC conducted a survey of the present conditions of the area at issue. It then superimposed several historic maps on that plan, including maps from 1819, 1832, and 1859. (None of the historic maps show a seawall in or near the location of the seawall-walkway at issue.) BSC determined that the 1819 map entitled, "Plan of Sandy Bay Pieres Taken by William Saville Surveyor," which clearly depicts the high water mark, most closely aligns with current landmarks. When superimposed on the present location of the seawall-walkway, the 1819 map places the high water mark landward of the seawall-walkway.

b. Plaintiff's expert. The plaintiff's case rested primarily on the testimony of a coastal geologist, Erich Gundlach.¹¹ Gundlach pointed to the 1813 deed and its description of a 106–foot–long seawall "by the Sea Shore." He concluded from this deed reference and the similar length of the seawall-walkway, which he measured to be 108 feet, that the seawall described in the 1813 deed is the seawall-walkway at issue in this case. He contended that the seawall-walkway would have been placed at the high water mark because seawalls constructed around 1813 were not intended to withstand wave action. Thus, he concluded that the high water mark when the seawall-walkway was constructed had to have been at the seaward base of the existing seawall-walkway. While Gundlach originally opined that the 1819 and 1832 maps do, in fact, show the seawall-walkway, the administrative magistrate noted that Gundlach opined that the seawall-walkway's absence from the 1819 map is a further indication that it is landward of the high water mark because the 1819 map was focused on proposed construction in the harbor and, if the seawall-walkway had been seaward of the high water line, it would have been shown.

The only geological evidence Gundlach offered to support his position came in the form of answers to...