LUCIUS HILL & Another v. CONSERVATION COMMISSION OF FALMOUTH. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-581
LUCIUS HILL & another 1
vs.
CONSERVATION COMMISSION OF FALMOUTH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiffs, Lucius and Wendy Hill, appeal from the
judgment of a Superior Court judge upholding the decision of the
conservation commission of Falmouth (commission) denying an
application for an order of conditions for construction of a new
walkway leading to an existing dock in West Falmouth harbor. We
affirm.
In addition to the Wetlands Protection Act, G. L. c. 131,
§ 40 (WPA), the town of Falmouth regulates wetlands through a
local wetlands protection bylaw, chapter 235 of the town's code
(wetlands bylaw), and the commission's Falmouth wetland
regulations (FWR). The plaintiffs submitted a notice of intent
under the WPA, wetlands bylaw, and the FWR, seeking permission
1 Wendy Hill.
to construct an elevated walkway to reach their existing
licensed concrete ramp and float. 2 Section 10.16 (h) of the FWR
provides "general requirements" and "prohibitions" applicable to
all docks and piers. Section 10.16 (h) (1) provides that:
"No new docks or piers or extension of an existing dock or
pier may be constructed in any portion of [a] FEMA
designated velocity zone (V-Zone) unless the applicant
demonstrates that there will be public benefit from the
project. The Commission shall weigh the potential
likelihood of damage and harm that any such dock or pier
would cause during a storm event with the public benefit
demonstrated by the applicant in determining whether the
project should be allowed."
While the record does not reveal a specific finding, the
commission and the parties have all treated the location of the
proposed walkway as being in a velocity zone, and the plaintiffs
do not suggest otherwise on appeal.
After providing proper notice, the commission conducted a
public hearing over several days. At one of the first hearing
dates, some of the members inquired about revegetating the
existing walking path after the elevated walkway is installed.
The plaintiffs responded with a letter from a landscape design
company recommending the planting of 200 salt marsh plugs to
facilitate restoration. At the next hearing, the plaintiffs'
representative informed the commission that the plaintiffs would
2 According to the commission's meeting minutes, currently there
is a grass path leading to a solid stone and concrete dock,
which is surrounded by knee-high water at times.
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install salt marsh material as recommended by the landscape
design company. Before the commission voted, it was noted that
the plan proposed an expansion of a dock in a velocity zone and
that planting plugs was recommended to enhance the salt marsh
after construction of the walkway. Indeed, one of the members
of the commission noted prior to the vote that "[i]t will be a
better environment because the salt marsh will fill in. It's
better for Falmouth to have the project than not to have it."
Another member commented, however, that "[t]here is value of the
salt marsh and the value of the velocity zone. The structure
should be prohibited because of the damage that will be done
when the structure is ripped out in a storm and does harm to the
resources."
On February 24, 2021, a motion was made to grant the order
of conditions. The commission voted, but the vote failed to
carry a majority of the commission, and therefore, the
application was considered denied. On February 26, 2021, the
commission issued a written decision signed by a majority
explaining its reasons for denying the application. The
decision set forth the commission's finding that the proposed
walkway is an "extension" of the existing dock and explained
that no extension of a dock is allowed in the velocity zone
unless the applicant demonstrates a public benefit, and the
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plaintiffs did not demonstrate how there will be a public
benefit from the proposed project.
The plaintiffs filed a certiorari appeal pursuant to G. L.
c. 249, § 4, in the Superior Court. On cross motions for
judgment on the pleadings, the judge granted the commission's
motion, affirming the commission's decision and dismissing the
appeal. This appeal followed.
Discussion. "In a review under certiorari, the court is
limited to correcting 'substantial errors of law apparent on the
record adversely affecting material rights'" (citation omitted).
FIC Homes of Blackstone, Inc. v. Conservation Comm'n of
Blackstone, 41 Mass. App. Ct. 681, 684 (1996). We review a
decision allowing a motion for judgment on the pleadings de
novo. Delapa v. Conservation Comm'n of Falmouth, 93 Mass. App.
Ct. 729, 733 (2018). "In an action in the nature of certiorari
challenging a wetlands permit decision made by a conservation
commission pursuant to a local by-law, our review is limited at
most to whether the commission's decision is supported by
substantial evidence in the administrative record, whether the
commission's action was arbitrary and capricious, and whether
the commission committed an abuse of discretion or other error
of law." Id. at 733-734. With these principles in mind, we
address the plaintiffs' arguments.
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1. Sufficiency of the vote. The plaintiffs first argue
that when the commission's vote to grant the order of conditions
did not pass, the commission erred in treating it as a vote to
deny the order of conditions, and that the proper procedure
would have been to conduct a second vote specifically on the
question whether to deny the order of conditions. They point to
several sections of the wetlands bylaw and the FWR, none of
which require two votes in the circumstances presented. Cf.
McElderry v. Planning Bd. of Nantucket, 431 Mass. 722, 722, 727
(2000) (in absence of affirmative vote by majority of quorum,
plan disapproved).
First, the plaintiffs point to § 10.05 (9) (b) of the FWR,
which discusses "substantive denials" and provides that the
commission "may deny permission for any activity within areas
under its jurisdiction if, in its judgment, such denial is
necessary to protect the Resource area values identified in the
Bylaw." It further provides that "[t]he written decision will
include the reasons for the denial, citing Resource area values
protected, and relevant regulations. The written decision will
be signed by a majority of the Commission." Contrary to the
plaintiffs' contention, all of these requirements were met, as
reflected in the written decision.
In addition, the plaintiffs point to § 235-7 (B) of the
wetlands bylaw, which requires that in denying a request for a
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permit, "[d]ue consideration shall be given to any demonstrated
hardship on the applicant by reason of denial, as presented at
the public hearing," and argue that because there was no second
vote, the commission did not consider any "hardship" that the
plaintiffs would suffer if their application were denied. The
FWR defines "hardship" specifically:
"Hardship means the application of Chapter 235 of the Code
of Falmouth to a particular piece of property, evaluated in
its totality, owing to the unique characteristics of the
property, that is unduly oppressive, arbitrary or
confiscatory and would involve substantial economic loss to
the Applicant because of the literal enforcement of the
Bylaw provided that the Conditions and characteristics of
the property are not the result of the actions of the
Applicant, or owner, or their agents, predecessors,
successors or assignees."
Nothing in the record suggests that the plaintiffs presented
evidence at the hearing of a hardship within the foregoing
definition. And, in their brief, they point only to their need
to wade through water to reach their existing dock -- which
evidence was before the commission when it voted. The
commission cannot be faulted for failing to explicitly weigh the
hardship on the plaintiffs when the plaintiffs presented no
evidence of harm that would meet the definition of "hardship,"
or any evidence that they would suffer from a "substantial
economic loss" because of the application of the wetlands bylaw.
The plaintiffs also argue that § 10.05 (2) of the FWR was
violated because the decision was drafted after the vote and the
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commission did not vote on the specific reasons for denial while
they were at the meeting. Section 10.05 (2) requires only that
any action taken by the commission pursuant to "Chapter 235 of
the Code of Falmouth" "is to be taken by more than half the
members present at a meeting of at least a quorum." It does not
require that the drafting of a written decision occur during the
meeting. Where the written decision was signed by more than
half of the members that were present at the public meeting on
the plaintiffs' proposal, the regulation was satisfied.
Finally, the plaintiffs argue that a second vote was
required because it may not have passed and then the commission
might have failed to act on the application within twenty-one
days of the application and lost its jurisdiction to enforce the
local bylaw and regulations. See Oyster Creek Preservation,
Inc. v. Conservation Comm'n of Harwich, 449 Mass. 859, 866
(2007). That outcome, however, is belied by the written
decision denying the application that was signed by a majority
of the commission. In short, the requirement of a written order
explaining the reasons for the denial eliminates the scenario
the plaintiffs have contemplated.
2. Walkway is an extension of the existing dock. The
plaintiffs next contend that the commission's conclusion that
the proposed walkway is an "extension" of the existing dock is
based on an erroneous interpretation of the regulations. As
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noted above, § 10.16 (h) prohibits new structures in the
velocity zone (in the absence of a public benefit) and applies
to "new docks or piers or extension[s] of an existing dock or
pier." A "dock" is defined in § 10.04 as "the entire structure
of any Pier, wharf, walkway, bulkhead or float, and any part
thereof including pilings, ramps, walkways, float and/or tie-off
pilings."
The plaintiffs speculate that the prohibition on extensions
of existing docks is only for "seaward extensions," not to the
addition of a walkway landward of an existing dock. Velocity
zones are defined in the FWR as "those portions of land subject
to coastal storm flowage which are coastal high hazard areas or
areas of special flood hazard extending from the inland limit
within the one-hundred-year floodplain seaward supporting waves
greater than three feet in height." By its very definition,
velocity zones include property that may be inland from the
dock. The distinction offered by the plaintiffs is not made in
the bylaw and we decline to add language to it. Where the
plaintiffs do not suggest that the proposed walkway will not be
in a velocity zone, we discern no reason to conclude that
§ 10.16 (h) does not apply to it.
3. Public benefit. The commission concluded that the
plaintiffs did not demonstrate how there would be a public
benefit from the proposed project. On appeal, the plaintiffs
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contend that there will be a public benefit because the project
will restore some salt marsh. They contend that salt marsh
provides public benefits and assists in controlling storm
damage, and that the commission should have weighed these
benefits with the risks of harm from the walkway.
The meeting minutes reveals that the commission considered
the planned wetlands restoration and, indeed, reveals that the
commission members disagreed as to whether the restoration
offset the potential harm from the elevated walkway. It was the
commission's job to determine whether a public benefit would
arise, and the majority concluded that there was no public
benefit. We cannot substitute our judgment on this issue. See
Croteau v. Planning Bd. of Hopkinton, 40 Mass. App. Ct. 922, 924
(1996) ("The determination of public benefit involves a
'considerable area of discretion' and it is 'the board's
evaluation . . ., not the judges, which is controlling'"
[citation omitted]). Cf. Wine v. Planning Bd. of Newburyport,
74 Mass. App. Ct. 521, 527 (2009) (burden of showing board erred
in denying waiver because denial was not in public interest
"nearly insupportable" [citation omitted]). Where the
commission concluded that there was no public benefit, the
plaintiffs' argument that the commission did not weigh the
public benefit against the likelihood of harm is unavailing.
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Discerning no abuse of discretion or other error of law, we
affirm the judgment.
Judgment affirmed.
By the Court (Sullivan,
Desmond & Singh, JJ. 3),
Clerk
Entered: August 2, 2023.
3 The panelists are listed in order of seniority.
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