THE OFFICE OF APPEALS AND DISPUTE RESOLUTION
February 17, 2012
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In the Matter of OADR Docket No. 2009-032
Paul J. Armstrong, as agent for DEP File No. WRP File No. JD 09-2655
Jill Armstrong, Trustee of consolidated with
Whites Ferry Realty Trust OADR Docket No. 2009-075
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RECOMMENDED FINAL DECISION
The Petitioner Whites Ferry Realty Trust operates the Whites Ferry Marina at 1245, 1248, and 1250 Ferry Street in Marshfield, Massachusetts (“the Marina”). The Marina fronts the South River in Marshfield. In these consolidated appeals (hereinafter referred in the singular as “the appeal”), the Petitioner challenges the jurisdiction of the Massachusetts Department of Environmental Protection (“MassDEP” or “the Department”) to regulate portions of the Marina located at 1248 and 1250 Ferry Street pursuant to the Massachusetts Public Waterfront Act, G.L. c. 91 (“Chapter 91” or “c. 91”), and the Waterways Regulations at 310 CMR 9.00. See [Petitioner’s] Notice of Claim for Adjudicatory Hearing in OADR Docket No. 2009-032, May 18, 2009 (“Petitioner’s Appeal Notice Challenging c. 91 Determination for 1248 Ferry Street”); [Petitioner’s] Notice of Claim for Adjudicatory Hearing in OADR Docket No. 2009-075, December 3, 2009 (“Petitioner’s Appeal Notice Challenging c. 91 Determination for 1250 Ferry Street”); [Petitioner’s] Pre-Hearing Statement, September 9, 2009 (“Petitioner’s Pre-Hearing Statement”), at pp. 1-4; Pre-Screening Conference Report and Order, September 22, 2009 (“PSC Report & Order”), at pp. 1-3.
A bait shop with a one story addition is located at 1248 Ferry Street, and a house with a one story addition at the rear of the house is located at 1250 Ferry Street. Id. According to the Department, the bait shop at 1248 Ferry Street and the one story addition at the rear of the house at 1250 Ferry Street are located on “filled and flowed tidelands subject to jurisdiction under M.G.L. c. 91 and its regulations at 310 CMR 9.00.” [Positive] Determination of Applicability-310 CMR 9.00, 1248 Ferry Street, Marshfield, MA, WRP File No. JD 09-2655, April 28, 2009 (“Chapter 91 PDA for 1248 Ferry Street”), at p. 1; [Positive] Determination of Applicability-310 CMR 9.00, 1250 Ferry Street, Marshfield, MA, WRP File No. JD 09-2824, November 24, 2009 (“Chapter 91 PDA for 1250 Ferry Street”), at p. 1; Petitioner’s Pre-Hearing Statement, at pp. 1-2; PSC Report & Order, at pp. 1-2. As a result, since at least April 1991, the Department has regulated the activities and structures at 1248 and 1250 Ferry Street pursuant to a Chapter 91 Waterways License that it issued to the Petitioner’s predecessor in title. Id.
The 1991 Chapter 91 License and the Department’s Chapter 91 jurisdiction over the bait shop at 1248 Ferry Street and the one story addition at the rear of the house at 1250 Ferry Street are based on an Historic High Water Mark (“HHWM”)[1] “which place[d] the [structures at issue] . . . seaward of the HHWM.” Petitioner’s Pre-Hearing Statement, at pp. 1-2; PSC Report & Order, at 2. “Based on the HHWM[,] . . . the Department included several special conditions in [1991 Chapter 91 Waterways License] restricting the uses of the properties [at 1248 and 1250 Ferry Street].” Petitioner’s Pre-Hearing Statement, at p. 2; PSC Report & Order, at 2. One special condition prohibits human habitation at the bait shop on 1248 Ferry Street, and another special condition requires use of the one-story addition at the rear of the house on 1250 Ferry Street as a marina office. Id. “The Department indicated in the license that . . . any change of use or structural alteration [of the structures] requires Chapter 91 review and approval [by the Department].” Id. The Department re-confirmed its Chapter 91 jurisdiction over the structures in the 2009 Chapter 91 PDAs that the Petitioner challenges here. See below, at pp. 21-22. The Department’s 2009 Chapter 91 PDAs are based on a “presumptive” HHWM line established by a 2006 Chapter 91 Mapping Study and rooted in a mid-19th Century topographical survey prepared by the U.S. Coast Survey. Id.
The Petitioner contends that the Department’s presumptive HHWM line for 1248 and 1250 Ferry Street is incorrect, and that the bait shop at 1248 Ferry Street and the one-story addition at the rear of the house at 1250 Ferry Street are not subject to the Department’s Chapter 91 jurisdiction because the structures are located landward of the correct HHWM on naturally occurring uplands. Petitioner’s Appeal Notice Challenging c. 91 Determination for 1248 Ferry Street, at p. 2; Petitioner’s Appeal Notice Challenging c. 91 Determination for 1250 Ferry Street, at p. 2; Petitioner’s Pre-Hearing Statement, at pp. 2-3; PSC Report & Order, at p. 2; Petitioner’s Proposed Findings of Fact, Proposed Rulings of Law, and Proposed Decision, February 23, 2010 (“Petitioner’s Proposed Findings & Rulings”), at pp. 1-25.
The Department disputes the Petitioner’s claims, and asserts that it has proper Chapter 91 jurisdiction over 1248 and 1250 Ferry Street. Chapter 91 PDA for 1248 Ferry Street; Chapter 91 PDA for 1250 Ferry Street; Department of Environmental Protection’s Pre-Screening Filing, September 14, 2009 (“Department’s Pre-Hearing Statement”); PSC Report & Order, at pp. 2-3; [Department’s] Proposed Findings of Fact and Law, February 23, 2010 (“Department’s Proposed Findings & Rulings”), at pp. 1-49; [Department’s] Amended Proposed Findings of Fact, March 9, 2010.
In sum, the issues for resolution in this appeal are:
(1) Does the Department have Chapter 91 jurisdiction over the bait shop at 1248 Ferry Street?
(2) Does the Department have Chapter 91 jurisdiction over the one-story addition at the rear of the house at 1250 Ferry Street?
I conducted a one day Adjudicatory Hearing (“Hearing”) to resolve these issues through the testimony of the parties’ respective witnesses and documentary evidence submitted by the parties. The Petitioner, who had the burden of proof in the appeal,[2] introduced 41 exhibits in evidence[3] and called three witnesses at the Hearing:
(1) Paul Armstrong (“Mr. Armstrong”), the Petitioner’s agent and operator of
the Marina, and a builder by profession with over 30 years of experience in the construction industry and extensive experience in reviewing and interpreting plans including Land Court plans, and the permitting of projects including waterfront projects;[4]
(2) Darren Grady, P.E.(“Mr. Grady”), a licensed professional civil engineer with over 15 years of civil engineering experience, and involvement with hundreds of projects, including waterfront projects, and with extensive experience reviewing and interpreting plans, including historic and current plans, and surveying real property;[5] and
(3) Kevin Maguire (“Mr. Maguire”), an engineer with over 40 years of
civil and marine engineering experience, including over 30 years of service as a Civil Engineer for the Commonwealth (1968-2001) during which he worked on Eminent Domain Takings, Land Surveys, and the review, design and permitting of hundreds of waterfront projects, including dredging, flood control, marina construction, seawall construction, pier construction and other waterfront projects.[6]
The Department introduced 28 exhibits in evidence[7] and called two witnesses at the Hearing:
(1) Louis Gitto (“Mr. Gitto”), an engineer and Regional Planner in the
Department’s Chapter 91 Waterways Program since 1991 responsible for c. 91 licensing, primarily in Southeastern Massachusetts, and who reviewed and determined c. 91 jurisdiction over 1248 and 1250 Ferry Street in 2009;[8] and
(2) Alex Strysky (“Mr. Strysky”), a senior Environmental Analyst in the
Department’s Waterways Program, with 10 years of experience in Chapter 91 regulatory matters, including Chapter 91 licensing and determinations of whether Chapter 91 jurisdiction exists over areas of land, water, or any activities on land or water, including review of jurisdiction over the Petitioner’s properties at 1248 and 1250 Ferry Street.[9]
The two issues for resolution in this appeal as set forth above are simply stated but complex in nature based the voluminous testimonial and documentary evidence that the parties have submitted in the case. I have performed a searching and comprehensive review of the evidence, and conclude that the Petitioner proved by a preponderance of the evidence introduced at the Hearing that the Department’s presumptive HHWM line for 1248 and 1250 Ferry Street is incorrect, and that the bait shop at 1248 Ferry Street and the one-story addition at the rear of the house at 1250 Ferry Street are not subject to the Department’s Chapter 91 jurisdiction because the structures are located landward of the correct HHWM on naturally occurring uplands. Accordingly, I recommend that the Department’s Commissioner issue a Final Decision vacating the Department’s 2009 Chapter 91 PDAs for 1248 and 1250 Ferry Street, and the 1991 Chapter 91 License for 1248 and 1250 Ferry Street.
STATUTORY AND REGULATORY FRAMEWORK
I. THE PURPOSE OF CHAPTER 91
Under the Public Trust Doctrine and Chapter 91, “the Commonwealth holds tidelands in trust for the use of the public for, traditionally, fishing, fowling, and navigation.” Boston Edison Company v. Massachusetts Water Resources Authority, 459 Mass. 724, 735 (2011). “Tidelands” are “present and former submerged lands and tidal flats lying between the present or historic high water mark.” 310 CMR 9.02 (definition of “tidelands”). Former submerged lands and flats which have been filled to make them dry land are referred to as “filled tidelands.” Id., (definitions of “fill” and “filled tidelands”). “Flowed tidelands” are those lands over which the tides still flow. Id. (definition of “flowed tidelands”).
As noted above, the HHWM is the starting point for the Commonwealth’s c. 91 jurisdiction over all tidelands. The HHWM is “the high water mark which existed prior to human alteration of the shoreline by filling, dredging, excavating, impounding, or other means.” 310 CMR 9.02 (definition of “historic high water mark”). The high water mark for tidelands is:
[the] mean high tide line, as established by the present arithmetic mean of the water heights observed at high tide over a specific 19-year Metonic Cycle (the National Tidal Datum Epoch), and shall be determined using hydrographic survey
data of the National Ocean Survey of the U.S. Department of Commerce.[10]
310 CMR 9.02 (definition of “high water mark”).
“In areas where there is evidence of [human] alteration [of the shoreline] by fill, the Department [is required by the Waterways Regulations to] presume the [HHWM] 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.” 310 CMR 9.02 (definition of “historic high water mark”). “[This] presumption may be overcome by a clear showing that a seaward migration of such shoreline occurred solely as a result of natural accretion not caused by the owner or any predecessor in interest.” Id.
II. LICENSING UNDER THE WATERWAYS REGULATIONS
Under G.L. c. 91, § 14, “[t]the [D]epartment may license and prescribe the terms for the construction or extension of a . . . structure, or for the filling of land or flats, or the driving of piles in or over tide water below high water mark.” In accordance with its statutory authority under G.L. c. 91, § 18, the Department has promulgated the Waterways Regulations that include licensing provisions regulating the proposed uses of and construction activities in tidelands.
Under 310 CMR 9.03(1):
[w]ritten authorization in the form of a license, permit, or amendment thereto must be obtained from the Department before the commencement of one or more activities specified in . . . 310 CMR 9.05 and located in one or more geographic
areas specified in 310 CMR 9.04 . . . .
The geographic areas subject to licensing include “all filled tidelands, except for landlocked tidelands,” which are not pertinent in this case. 310 CMR 9.04(1), 9.04(2). “[A]n
application for [a] license or license amendment shall be submitted to the Department for the following activities involving work on or use of fill or structures [in tidelands]”:
(1) any construction, placement, excavation, addition, improvement,
maintenance, repair, replacement, reconstruction, demolition or removal of any fill or structures, not previously authorized, or for which a previous grant or license is not presently valid;
(2) any existing or proposed use of any fill or structures not previously
authorized, or for which a previous grant or license is not presently valid;
(3) any structural alteration of fill or structures from the specifications
contained in a valid grant or license, whether such authorization was obtained prior to or after January 1, 1984; or
(4) any change in use of fill or structures from that expressly authorized in a
valid grant or license or, if no such use statement was included, from that reasonably determined by the Department to be implicit therein, whether such authorization was obtained prior to or after January 1, 1984.
310 CMR 9.05(1).
Under 310 CMR 9.06(1), any person who desires a determination whether the Department has c. 91 jurisdiction over “any area of land or water, or any activity thereon, may submit to the Department a request for a determination of applicability.” The request must include a plan or plans showing:
(1) an appropriately-scaled site location map;
(2) references to any previous licenses, permits, or other authorizations for
existing structures, fill, or dredging at the site, including the license number(s) and the date the license was recorded at the Registry of Deeds or Land Court;
(3) appropriately-scaled principal dimensions and elevations of proposed and
existing fill, structures, or dredging in waterways;
(4) any historic dredging, filling, or impoundment at the site; and
(5) a delineation of the present high and low water marks, and the historic
high and low water marks, as relevant.
310 CMR 9.06(1)
III. THE PRESUMPTIVE HHWM LINES UNDER
THE 2006 CHAPTER 91 MAPPING PROJECT
From 2002 to 2006, the Commonwealth’s Office of Coastal Zone Management (“CZM”), in conjunction with the Department, began a historical shoreline mapping project to facilitate determinations of the Commonwealth’s Chapter 91 jurisdiction. Mr. Grady’s D.PFT, ¶ 22; Massachusetts Chapter 91 Mapping Project, Final Report, June 9, 2006, prepared by The BSC Group, Inc. (“BSC c. 91 Mapping Report”), at p. 1.[11] CZM retained The BSC Group, Inc., a private consulting firm comprised of land surveyors, civil engineers, and environmental planners (“BSC”), to map the Commonwealth’s tidelands jurisdiction under Chapter 91 and develop a Geographic Information System (“GIS”)[12] based mapping product. Id. The purpose of this project was to develop presumptive c. 91 lines of jurisdiction over tidelands, including “produc[ing] plans depicting geographic presumptive lines of [Department] jurisdiction in tidelands pursuant to Chapter 91 and the Waterways Regulations.” BSC c. 91 Mapping Report,