THE OFFICE OF APPEALS AND DISPUTE RESOLUTION

March 3, 2010

________________________

In the Matter of OADR Docket No.: WET-09-048

Edward C. Gordon and DEP File No.: SE25-3437

129 Racing Beach Trust Falmouth, MA

________________________

RECOMMENDED FINAL DECISION

INTRODUCTION

In this appeal, the Petitioners, Paul F. Hogan and Patricia A. Hogan (“the Hogans”) challenge a Superseding Order of Conditions ("SOC") that the Southeast Regional Office of the Massachusetts Department of Environmental Protection ("the Department" or “MassDEP”) issued on September 9, 2009 to the Applicant, Edward C. Gordon, Trustee of the 120 Racing Beach Trust, pursuant to the Massachusetts Wetlands Protection Act, G. L. c. 131 § 40 ("MWPA") and the Wetlands Regulations at 310 CMR 10.00 et seq. (“Wetlands Regulations”). The SOC approved the Applicant’s proposed project (“the Project”) at the Applicant’s real property at 120 Racing Beach Avenue, Falmouth, Massachusetts (“the Property”).

BACKGROUND AND UNDISPUTED FACTS

The Property consists of two lots—Lot 61, approximately 1.8 acres in size, and Lot 228, approximately .4 acres in size. Wilson Pre-Filed Testimony (“PFT”), ¶ 9. The Property abuts Buzzards Bay to the West and Racing Beach Avenue to the East, which runs generally north-south along the Property line. Id. The Applicant’s residential house is located on Lot 61. Abutting Lot 61 on the south is Lot 228, which, in turn, abuts the north side of the Hogan’s property (112 Racing Beach Avenue).

The coastal bank for both the Applicant’s and the Hogans’ properties is armored with a large angled seawall made of boulders. Significant portions of the seawall between the boulders have been grouted with concrete. The purpose of the seawall is to protect both properties from the effects of ocean storms, waves, winds, and tidal action. Wilson PFT, ¶ 11.

The Project involves the construction of an addition to the existing house, including additional residential space, an attached garage, patio, and driveway, and the installation and alteration of landscaping and storm water infrastructure. See SOC; McGrath PFT, ¶¶ 21, 40-44. The Project would take place within the following areas on the Property subject to protection under the MWPA and the Wetlands Regulations: Land Subject to Coastal Storm Flowage (“LSCSF”) and the Buffer Zones to Bordering Vegetated Wetlands (“BVW”) and Coastal Bank. Id.

In furtherance of the Project, the Applicant filed a Notice of Intent with the Falmouth Conservation Commission (“Commission”) on about November 30, 2007. McGrath PFT, ¶ 14, Ex. 2. The Commission held hearings regarding the NOI on December 12, 2007, January 23, 2008, February 27, 2008, and April 23, 2008. McGrath PFT, ¶ 16. In the course of the Commission’s proceedings, the Applicant submitted various revised plans and reports and a detailed storm water management report. Id. at ¶ 17, Ex. 40-44. The Commission issued the Order of Conditions (“OOC”) on May 14, 2008, approving the Project. The OOC was appealed to the Department’s Southeast Regional Office, which, in turn, issued the SOC on September 9, 2009. The SOC was appealed to the Office of Appeals and Dispute Resolution (“OADR”) on September 23, 2009.

In this appeal, the Applicant and the Department contend that the Department properly authorized the Project in accordance with the MWPA and the Wetlands Regulations. The Hogans disagree, contending that the Project approved in the SOC will: (1) take place within Riverfront Area subject to protection under the MWPA and the Wetlands Regulations; (2) wrongly impact the alleged Riverfront Area; (3) adversely impact and destabilize the Coastal Bank; and (4) cause flooding to the Hogans’ real property by adversely impacting LSCSF. See Pre-Screening Conference Report and Order, p. 2; Petitioners’ Memorandum of Law, pp. 1-3.

On February 1, 2010, I held an Adjudicatory Hearing regarding the Issues For Resolution previously identified by Chief Presiding Officer Salvatore Giorlandino. Those issues are the following:

ISSUE No. 1: Whether the Petitioners have standing to challenge the SOC as aggrieved parties under 310 CMR 10.04?

ISSUE No. 2: Whether the proposed work will take place within a Riverfront Area within the meaning of the MWPA and the Wetlands Regulations?

a. Whether a River (perennial stream) is located within 200 feet of the proposed work?

b. If so, whether the Project satisfies the alternatives analysis for work within Riverfront Area under 310 CMR 10.58(4)(c)?

ISSUE No. 3: Whether under 310 CMR 10.30(6), the Project will have an adverse impact on Coastal Bank at the Property?

ISSUE No. 4: Whether under 310 CMR 10.24(1), the Project contributes to storm damage prevention and flood control with respect to the Land Subject to Coastal Storm Flowage at the Property?

At the Adjudicatory Hearing the Hogans called the following witnesses:

1. Arlene Wilson. Ms. Wilson is a Professional Wetlands Scientist who is the Principal Environmental Planner for A.M. Wilson Associates, Marston Mills, MA, a civil engineering and land use planning firm with a specialty in land use planning, waterfront design, and wetlands related permitting. She has 34 years of experience in wetland identification and permitting. She has a BA in English Literature with a Minor in Environmental Science. Wilson PFT, pp. 1-2 and Ex. 1.

2. Carlos G. Pena. Mr. Pena is a Registered Professional Engineer and Vice President of CLE Engineering. He “specializ[es] in waterfront engineering, permitting and construction management.” He has 26 years of engineering experience, and received his BS in Civil Engineering. Pena PFT, p. 1.

The Applicant called the following witnesses:

1. Michael B. McGrath. Mr. McGrath is a Registered Professional Engineer, a Registered Professional Land Surveyor, and an Approved Soil Evaluator. He is President of Holmes and McGrath, Inc., a civil engineering and land surveying firm. He has over 40 years of experience. He received his BS in Civil Engineering. McGrath PFT, pp. 1-2.

2. Stanley M. Humphries. Mr. Humphries is a Senior Coastal Geologist with LEC Environmental Consultants, Inc., with “expertise in the areas of coastal geomorphology and flood hazard mitigation.” He received his MS and BS degrees in Geology. He has over 30 years of experience. Humphries PFT, pp. 1-2.

3. Raul Lizardi-Rivera. Mr. Lizardi-Rivera is Registered Professional Engineer and an Approved Soil Evaluator with Holmes and McGrath, Inc. He holds a BS in Engineering and has approximately 10 years of experience. Lizardi-Rivera PFT, p. 1.

The Department called one witness:

Gregory J. DeCesare. Mr. DeCesare is an Environmental Analyst III with MassDEP. He holds a BS degree in Biology. He has approximately 22 years of experience.

Recommendation

Based on the requirements of the MWPA and the Wetlands Regulations, as well as the testimonial and documentary evidence of the parties’ respective witnesses, as discussed in detail below, I make the following recommendations: I recommend that MassDEP’s Commissioner (the “Commissioner”) issue a Final Decision affirming the Department’s issuance of the SOC. I conclude that the Hogans have standing. Although a preponderance of the testimonial and documentary evidence demonstrates that the Department incorrectly determined there was no Riverfront Area, the Applicant has satisfied the alternatives analysis under 310 CMR 10.58(4)(c) with respect to the Project’s minimal impact on that area. In particular, there is no practicable and substantially equivalent economic alternative to the proposed work with less adverse effects on the interests identified in M.G.L. c. 131 § 40. Regarding the Coastal Bank, the Hogans did not show by a preponderance of the evidence that the Project would adversely impact the Coastal Bank under 310 CMR 10.30(6). Lastly, under 310 CMR 10.24(1), the Project is sufficiently conditioned to contribute to storm damage prevention and flood control with respect to the LSCSF.

THE BURDEN OF PROOF IN AN APPEAL CHALLENGING AN SOC

As the parties challenging the SOC, the Hogans had the burden of proving by a preponderance of the evidence that the Department improperly issued the SOC. See 310 CMR 10.03(2); 310 CMR 10.04; 310 CMR 10.05(7)(j)2.b.iv; 310 CMR 10.05(7)(j)2.b.v; 310 CMR 10.05(7)(j)3.a; 310 CMR 10.05(7)(j)3.b; 310 CMR 10.05(7)(j)3.c. Specifically, the Hogans were required to present “credible evidence from a competent source in support of each claim of factual error, including any relevant expert report(s), plan(s), or photograph(s).” 310 CMR 10.05(7)(j)3.c.

“A party in a civil case having the burden of proving a particular fact [by a preponderance of the evidence] does not have to establish the existence of that fact as an absolute certainty. . . . [I]t is sufficient if the party having the burden of proving a particular fact establishes the existence of that fact as the greater likelihood, the greater probability.” Massachusetts Jury Instructions, Civil, 1.14(d).

The relevancy, admissibility, and weight of evidence that the parties sought to introduce in the Hearing were governed by G.L. c. 30A, § 11(2) and 310 CMR 1.01(13)(h)(1). Under G.L. c. 30A, § 11(2):

[u]nless otherwise provided by any law, agencies need not observe the rules of evidence observed by courts, but shall observe the rules of privilege recognized by law. Evidence may be admitted and given probative effect only if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs. Agencies may exclude unduly repetitious evidence, whether offered on direct examination or cross-examination of witnesses.

Under 310 CMR 1.01(13)(h), “[t]he weight to be attached to any evidence in the record will rest within the sound discretion of the Presiding Officer. . . .”

DISCUSSION

ISSUE No. 1: Whether the Petitioners have standing to challenge the SOC as aggrieved parties under 310 CMR 10.04?

The Hogans contend that they have standing under 310 CMR 10.04 and 10.05(7)(j)2 as aggrieved parties. A "Person Aggrieved" means “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 in M.G.L. c. 131, § 40. Such person must specify in writing sufficient facts to allow the Department to determine whether or not the person is in fact aggrieved.” 310 CMR 10.04.

To show standing a party need not prove by a preponderance of the evidence that his or her claim of particularized injury is true. Butler v. Waltham, 63 Mass. App. Ct. 435, 441, 827 N.E.2d 216 (2005). "Rather, the plaintiff must put forth credible evidence to substantiate his allegations. In this context, standing becomes, then, essentially a question of fact for the trial judge." Marashlian v. Zonging Bd. Of Appeals of Newburyport, 421 Mass. 719, 721, 660 N.E.2d 369 (1996); see also In the Matter of Hull, Docket No. 88-22, Decision on Motion for Reconsideration of Dismissal, 6 MELR 1397, 1407 (July 19, 1999)(party must state sufficient facts which if taken as true demonstrate the possibility that injury alleged would result from the allowed activity); compare Standerwick v. Zoning Board of Appeals of Andover, 447 Mass. 20, 37 (2006) (plaintiff's case appealing zoning decision cannot consist of "unfounded speculation to support their claims of injury").

Thus, the Hogans must demonstrate that the Project, as conditioned by the Department, would or could generate identifiable impacts on their property. See Matter of Lepore, Docket No. 2003-092 and 2003-093, Recommended Final Decision (September 2, 2004); Matter of Whoulev, Docket No. 99-087, Final Decision (May 16, 2000); Matter of Kittansett Club, Docket No. WET-2007- 009, Recommended Final Decision (April 10, 2008), adopted by Final Decision (April 16, 2008) (Appeal dismissed where Petitioner could not demonstrate any flooding impact to abutting property because it was not downgradient from project site). "[A]n allegation of abstract, conjectural or hypothetical injury is insufficient to show aggrievement." In the Matter of Doe, Doe Family Trust, Docket No. 97-097, Final Decision, 5 DEPR 61, 64 (April 15, 1998).

I conclude that the Hogans have sufficiently demonstrated standing. In particular, they have presented expert testimony that the Project could cause destabilization of the Coastal Bank in violation of 310 CMR 10.30(6), leading to potential flooding and storm damage on the Hogans’ property. Hearing Transcript, pp. 65-66, 73; Wilson PFT, Ex. 11 at p. 2-20; Pena PFT, ¶¶ 17-29. Thus, there is sufficient evidence that the Hogans 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 in G.L. c. 131, § 40. See Krafchuk v. Planning Board of Ipswich, 453 Mass. 517, 522-528 (2009)(expert testimony supporting allegations of runoff and flooding to plaintiff’s property was sufficient to find standing).

ISSUE No. 2: Whether the proposed work will take place within a Riverfront Area within the meaning of the MWPA and the Wetlands Regulations?

a. Whether a River (perennial stream) is located within 200 feet of the proposed work?

b. If so, whether the Project satisfies the alternatives analysis for work within Riverfront Area under 310 CMR 10.58(4)(c)?

In the OOC, the Commission found that the Project impacted the Riverfront Area associated with a perennial stream, but that the Project complied with the performance standards under 310 CMR 10.58. McGrath PFT, Ex. 44 (OOC, Findings 8 and 9). On appeal to the Department’s Southeast Regional Office, the Department determined in the SOC, without explanation, that there was no Riverfront Area associated with the Project. McGrath PFT, Ex. 45 (SOC). The Hogans have appealed that determination.

The watercourse in question begins in Flume Pond and flows in a channel generally south past the Property on the opposite side of Racing Beach Avenue (“Flume Pond Branch”). A second watercourse travels westerly from the vicinity of Miles Pond (“Miles Pond Branch”) and joins the Flume Pond Branch at a point east of Racing Beach Avenue and just south of the Property. From that confluence, the two watercourses travel together until they pass underneath Racing Beach Avenue through a culvert. From there the watercourses travel into a concrete control structure and leaching pit that protrudes above the beach surface and then into a pipe that empties into the ocean immediately south of the Hogans property.[1] Wilson PFT, ¶ 20-28 (with identified exhibits); DeCesare PFT, ¶ 12; McGrath PFT, ¶ 30, Ex. 46. The watercourses are down gradient of a fairly large wetland system. Wilson PFT, ¶¶ 20, 28, Ex. 33; Ex. 17 at p. 4-27; DeCesare PFT, ¶ 12. The portion of the watercourse channel in the vicinity of the Project is approximately 4 feet wide and 1 to 2 feet deep. Wilson PFT, ¶ 29, Ex. 34; McGrath PFT, ¶¶ 49-51, Ex. 34, 46. That channel is more than 200 feet from the Property, with the exception of approximately 100 square feet at the Property’s northeast corner and approximately 800 square feet at the southeast corner. McGrath PFT, Ex. 34, 46.