Stone-Ashe v. Department of Environmental Protection , 86 Mass. App. Ct. 16 ( 2014 )

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13-P-489 Appeals Court
WENDY STONE-ASHE, trustee, 1 vs. DEPARTMENT OF ENVIRONMENTAL
PROTECTION & another. 2
No. 13-P-489.
Suffolk. January 14, 2014. - July 16, 2014.
Present: Trainor, Graham, & Agnes, JJ.
Trust, Public trust. Department of Environmental Protection.
Administrative Law, Agency's authority, Regulations.
Regulation. Real Property, Littoral property, Harbors,
Wharf, Restrictions. Harbors. Evidence, Expert opinion.
Witness, Expert.
Civil action commenced in the Superior Court Department on
October 29, 2010.
The case was heard by Bonnie H. MacLeod, J., on a motion
for judgment on the pleadings.
Richard A. Nylen, Jr., for the plaintiff.
Jo Ann Shotwell Kaplan, Assistant Attorney General, for the
defendants.
1
Of the Stone-Ashe Realty Trust.
2
Commissioner of the Department of Environmental
Protection.
2
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 (2007), S.C., 456 Mass. 309(2010). See generally Boston Waterfront Dev. Corp. v.
Commonwealth, 378 Mass. 629, 631-632 (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. General
Laws c. 91, § 1, inserted by St. 1983, c. 589, § 21, defines
3
We use the term "plaintiff" to refer to both the trustee
and trust.
3
"[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
(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
4
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.
4
Upon a clear showing that a seaward migration of a
shoreline occurred as a result of natural accretion and was not
caused by the owner or any predecessor in interest, resort to
the historic high water mark is not required. 310 Code Mass.
Regs. § 9.02 (2000). There has been no such showing in the case
before us.
5
As the seawall at issue is topped by a walkway, we refer
to it as the "seawall-walkway."
5
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
6
HAG was not a party to the c. 30A appeal, and it is not a
party to the appeal before us.
6
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
7
The wharfs also are referred to as piers in the
administrative record. To avoid confusion, we use only the
terms "wharf" and "wharfs."
8
On March 25, 1743, at a commoner's or proprietor's meeting
held in Gloucester, Ebenezer Pool and others had been authorized
to build a wharf at the whirlpool.
7
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
9
Although the professional land surveyor who stamped and
signed the plan no longer worked for BSC and did not testify,
8
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
Ewald assisted in creating the plan and drafting the supporting
documentation under the supervision of the surveyor who signed
it. By the time Ewald testified before the administrative
magistrate, Ewald had become a professional surveyor. The
administrative magistrate noted that "[a]lthough this reduces
the weight I ascribe to Ewald's testimony, it does not render
the testimony incompetent."
10
The department presented the testimony of Alex Strysky,
but the administrative magistrate found that on cross-
examination Strysky appeared confused about benchmarks and
distances. The commissioner did not rely on Strysky's testimony
other than to note his testimony that seawalls have been
constructed seaward of the high water mark elsewhere in Rockport
and Boston.
11
The plaintiff also presented the testimony of a
professional surveyor, Richard Loud.
9
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 questions posed by
the administrative magistrate. Gundlach testified that the
seawall-walkway and the retaining wall were built differently.
He testified that ninety percent of the seawall-walkway is
constructed of the same stones as the wharfs, suggesting it is
about the same age. Gundlach further testified that the
seawall-walkway is comprised of "large diorite, granite diorite
10
blocks" and that the seawall-walkway is four and one-half to
five feet high, 108 feet long, and approximately three feet
thick. He also noted that it is not possible to see what is
inside the seawall due to the concrete walkway.
Gundlach testified that the retaining wall was not made of
the same blocks as the seawall-walkway; he described the
retaining wall as "quite old [and made of] large . . . angular
blocks [that are] more disjointed . . . [and] not nicely in
place . . . [with] different rocks [of] different ages." He
testified that the retaining wall was about sixty to seventy
feet wide in front of the Pool property and that it continues
onto neighboring properties with some new and some old sections.
There was no evidence as to whether the wall was designed to be
or functioned as a retaining wall, rather than a former seawall
or a boundary for the original Pool lot. 12
Gundlach opined that the 1819 map was a preliminary plan of
the wharfs and that, although the high water mark is accurate,
12
Gundlach pointed to two maps from 1924 and 1925 which, he
stated, "show a single seawall and separate landward retaining
wall that extends only on [the] historic Pool[] property and not
across the entire seafront." He also suggested the retaining
wall cannot be the historic seawall because it was not shown on
a 1925 plat survey of an adjacent property and, therefore, was
built after 1925. He did not reconcile this conclusion with
either his testimony that the retaining wall is "quite old" or
with the 1813 deed reference to the "corners" of the 106-foot-
long seawall, suggesting the seawall referred to in the deed
similarly does not continue past the corners of the property
reserved by Pool.
11
the map is inaccurate as to the structures as they had not yet
been built. He did, however, submit a plan overlaying current
conditions on the 1819 map and depicting the high water mark
seaward of the seawall-walkway in support of his position.
5. Administrative magistrate's and commissioner's
decisions. The administrative magistrate rejected BSC's
reliance on the 1819 map as he concluded that it was a
preliminary plan and not "the kind of evidence that reasonable
people are accustomed to rely on in the conduct of serious
business affairs." See 310 Code Mass. Regs. § 9.02. He
concluded that Gundlach offered a reasonable basis for his
opinion "that the existing seawall[-walkway] was built in an era
when seawalls were built at high water," and adopted Gundlach's
conclusion that the seawall-walkway was constructed landward of
the high water mark.
The commissioner, on the other hand, deemed Gundlach's
conclusion that the seawall-walkway was built at the high water
mark conclusory due to the absence of testimony related to "the
current high water mark in relation to the seawall, soil logs
which could show whether there is fill material behind the
seawall, or other support." In contrast to Gundlach's opinion,
the commissioner noted that the department's witness, Strysky,
had testified that there were seawalls in Rockport built seaward
of the high water mark. Moreover, the commissioner noted
12
discrepancies with current conditions and the plan submitted by
Gundlach, finding that on all other plans, the length of the L-
shaped Lumber Wharf was approximately three times the arm but
that Gundlach had depicted the length as only two and one-half
times the arm. Given this discrepancy, the commissioner did not
credit Gundlach's placement of the historic high water mark on
his plan.
In addition, the commissioner found that Gundlach's opinion
that the seawall-walkway was built at the high water mark and
that, therefore, the seaward side of the seawall-walkway forms
the historic high water mark was based almost exclusively on
Gundlach's conclusory premise that seawalls generally were built
at the high water mark around 1813. The commissioner reasoned
that "[t]his [premise] requires factual support as to how [it]
applies to this site, as there is no testimony related to the
current high water mark in relation to the seawall[-walkway],
soil logs which could show whether there is fill material behind
the seawall[-walkway], or other support. While it is possible
that the seawall[-walkway] was indeed built at the high water
mark and has remained at the high water mark for more than 250
years, the general [premise] that seawalls are built at the high
water mark is insufficient to establish that fact or to support
the [plaintiff's] direct case."
13
The commissioner credited BSC's plan, which was based on
the 1819 map and current conditions, reasoning that the
regulations require use of historic surveys and plans rather
than the position of existing structures to determine
jurisdiction. See 310 Code Mass. Regs. § 9.02. While
acknowledging that the 1819 map is not without ambiguity in
regard to shoreline features, the commissioner concluded that it
clearly depicts high water marks and aligns most closely with
current conditions.
Discussion. 1. Standard of review. "Under G. L. c. 30A,
§ 14(7), we review an agency's decision to determine whether it
was not supported by substantial evidence, was arbitrary or
capricious, or was otherwise based on an error of law." Ten
Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 228
(2010) (Ten Local Citizen Group). "This standard is highly
deferential to an agency and requires 'according "due weight to
the experience, technical competence, and specialized knowledge
of the agency, as well as to the discretionary authority
conferred upon it."'" Ibid., quoting from Friends & Fishers of
the Edgartown Great Pond, Inc. v. Department of Envtl.
Protection, 446 Mass. 830, 836 (2006). "In determining whether
there is substantial evidence to support the department's
decision, 'we must carefully consider any evidence in the record
that detracts from the agency's conclusion,'" Ten Local Citizen
14
Group, supra at 231, quoting from DSCI Corp. v. Department of
Telecommunications & Energy, 449 Mass. 597, 606 (2007), bearing
in mind that "the party appealing an administrative decision
bears the burden of demonstrating the decision's invalidity."
Farrell Enterprises, Inc. v. Commissioner of Rev., 46 Mass. App.
Ct. 564, 572 n.15 (1999).
2. Issues on appeal. The plaintiff contends that the
commissioner failed to accord the proper deference to the
administrative magistrate's fact finding that rests on
credibility determinations. We disagree. "Under 310 Code Mass.
Regs. § 1.01(14)(b), the commissioner determines 'every issue of
fact or law necessary to the decision.'" Ten Local Citizen
Group, supra at 231. However, it is true that "when the
subsidiary findings [of an administrative magistrate] rest on a
'resolution of credibility questions (i.e., that a fact is true
because a witness testified to it and that witness is
believable), they should be entitled to substantial deference.'"
Morris v. Board of Registration in Med., 405 Mass. 103, 111
(1989), quoting from Vinal v. Contributory Retirement Appeal
Bd., 13 Mass. App. Ct. 85, 101 (1982). Even so, the
commissioner may reject subsidiary findings provided her
decision contains "a considered articulation of the reasons
underlying that rejection." Morris v. Board of Registration in
Med., supra, quoting from Vinal v. Contributory Retirement
15
Appeal Bd., supra at 101-102. See Ten Local Citizen Group,
supra at 231 ("If the commissioner rejects an [administrative]
magistrate's finding of credibility, it must be accompanied by
an explanation").
Here, the commissioner detailed the reasons she rejected
Gundlach's determination of the historic high water mark. The
commissioner did not find the plaintiff's expert untruthful and
did not reject a credibility determination of the administrative
magistrate. Rather, the commissioner found that the expert's
approach did not comport with the regulations' focus on historic
plans and data rather than existing conditions to determine the
historic high water mark. In addition, she found that some of
Gundlach's conclusions were speculative. "[A]n agency may
reasonably reject an expert's opinion . . . where there are
flaws in the methodology or assumptions upon which the opinion
depends or where the opinion is based upon conjecture or
guesswork." Pollard v. Conservation Commn. of Norfolk, 73 Mass.
App. Ct. 340, 350 n.10 (2008).
We agree with the commissioner that the general supposition
that seawalls constructed around 1813 generally were built at
the high water mark, even if accepted as true, is insufficient
to establish that the seawall-walkway in this case was built at
the high water mark. This is particularly true, here, where
there are two walls in close proximity to one another and
16
virtually no or only inconclusive historical evidence as to when
each was constructed. Indeed, the evidence supporting the
supposition that the seawall-walkway is the same seawall
referred to in the 1813 deed is exceedingly thin.
In his prefiled rebuttal testimony, Gundlach responded to
Ewald's contention that the seawall-walkway is not the same
seawall mentioned in the 1813 deed by stating only that "[t]he
106 f[ee]t [referenced in the 1813 deed] aligns with the
frontage of the Pool[ ] property" and that "[t]here is no
historic record of approval of additional seawalls in this
area." The record, however, does not contain approvals of any
of the wall structures on the plaintiff's property or other
similar construction in the area such that the absence of
approvals would render it more likely that the existing seawall-
walkway is the same as that referenced in the 1813 deed.
Similarly, that the length of the seawall that existed prior to
1813, the corners of which marked the width of Pool's reserved
property, is substantially the same length as the existing ten-
foot-wide seawall-walkway that connects two subsequently
constructed wharfs on adjacent properties proves little.
Moreover, at the hearing, Gundlach testified that ninety percent
of the seawall-walkway is constructed of the same type of stones
as those used in the currently existing wharfs, which, he
concluded, indicated they were constructed around the same time.
17
However, Gundlach asserted that neither wharf existed in 1813
and neither wharf is mentioned in the 1813 deed. Further,
neither the 1819 or the 1832 map even depicts Middle Wharf. If
the seawall-walkway at issue was constructed at the same time as
one or both of the wharfs it connects, it cannot be the same
seawall referenced in the 1813 deed. Indeed, Gundlach's
description of the quite old retaining wall consisting of
disjointed rocks is perhaps more consistent with Pool's efforts,
as referenced in the 1813 deed, to "enclose[]" his property.
Even were we to accept as a factual finding that the
seawall-walkway at issue is the same or is in the same location
as the seawall mentioned in the 1813 deed, that, as the
commissioner points out, is not enough to carry the plaintiff's
burden. The department's regulations require the department to
"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." 310 Code Mass. Regs. § 9.02.
Nowhere in the department's regulations is it suggested that the
location of seawalls, alone, accurately depicts historic high
water marks. 13 If this were the case, surely the regulations
13
Further, it is difficult to conceive, as Gundlach
speculates, that a map focused on the harbor and proposed wharfs
in the harbor that accurately delineates the low and high water
18
would have included that in the mechanisms delineated for
determining the historic high water mark. Accordingly, we
cannot say that the commissioner erred in requiring some
historical or geological evidence that the seawall-walkway at
issue was constructed landward of the historic high water mark.
Next, the plaintiff argues, in essence, that the
commissioner's decision was not based on substantial evidence as
it was error to credit the BSC's plan. It is true that the
commissioner's decision largely rests on the plan prepared by
BSC. The plaintiff's surveyor, however, confirmed that the
procedures employed by BSC to locate the historic high water
mark by overlaying the 1819 map on current conditions were
appropriate and that he would have employed similar techniques.
In addition, the plaintiff's coastal geologist testified that
the high water mark on the 1819 map is indeed accurately placed.
We recognize that both of the plaintiff's experts
nonetheless challenge the location of structures in relation to
the high water mark as shown on the BSC plan and further
question the BSC plan's general reliability, contending the 1819
map is a preliminary plan rather than an "as built" plan and
marks would fail to expressly depict a ten-foot-wide seawall
along the high water mark if one, in fact, existed.
19
does not reveal the scale used. 14 While it is not at all clear
to us that the title of the 1819 map, "Plan of Sandy Bay Pieres
Taken by William Saville Surveyor," or the map, itself, suggests
that it is a preliminary plan, we need not dwell on the issue
because the fact is that when superimposed on existing
conditions, the wharfs, particularly the adjacent Lumber Wharf,
line up very closely. Further, HAG's surveyor testified that
the minor inconsistencies would not change the location of the
high water mark shown on the 1819 map or its relation to the
wharfs.
The plaintiff's argument that any inconsistencies render
the 1819 map unreliable is unavailing. While the plaintiff's
surveyor suggests that the map is unreliable because we cannot
travel back in time to evaluate the work, that rationale would
apply to any historic map. The department, by regulation, has
determined that reliance on historic maps is appropriate. See
310 Code Mass. Regs. § 9.02 ("the Department 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"). Accordingly, based as it is on
expert testimony comparing the 1819 map with current conditions,
14
Despite the absence of a scale, the commissioner was able
to identify the flaws in Gundlach's plan by using percentages,
which should remain the same regardless of scale.
20
we have little difficulty concluding that the commissioner's
decision is based on substantial evidence and we discern no
error in the decision of the Superior Court judge upholding the
final decision of the commissioner.
Judgment affirmed.