Environmental – Wetlands – Pier

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Where the conservation commission of Barnstable denied an application to construct a permanent pier in place of an existing seasonal pier on waterfront property in Osterville, the commission’s decision to deny the application was arbitrary and capricious and based on an error of law, so it must be annulled.

“The plaintiff, Shawn D. Martin, as trustee for the 310 North Bay Road Realty Trust (Martin), brought an action in the nature of certiorari under G.L.c. 249, §4, challenging the denial by the conservation commission of Barnstable (commission) of his application to construct a permanent pier in place of an existing seasonal pier on his waterfront property in Osterville (property). On the parties’ cross motions for judgment on the pleadings, a Superior Court judge entered judgment affirming the decision of the commission. Martin appeals, claiming principally that the commission’s decision was arbitrary and capricious and based on findings unsupported by substantial evidence. We vacate the Superior Court judgment and remand for entry of a new judgment that annuls the decision of the commission and remands the matter to the commission for further consideration. …

“Section 703-3(A) of the local regulations requires an applicant to file a notice of intent before constructing ‘any new pier or dock, whether fixed or floating, permanent or seasonal,’ and ‘for any substantial alteration or extension of an existing pier or dock.’ Under local regulation §237-6(B), the commission is authorized to deny an application that (1) fails ‘to meet the design specifications, performance standards, policy guidelines or other requirements in [the regulations]’; (2) fails ‘to avoid or prevent unacceptable significant or cumulative effects upon the wetlands values protected by [the regulations]’; or (3) where denial is ‘deemed … necessary to preserve the environmental quality of resource areas.’ According to local regulation §703-1(K), piers conforming to local regulations ‘can be presumed to minimize … possible negative [wetland] impacts.’

“Here, the commission denied Martin’s permit based on findings that the project ‘will have a cumulative effect on the overall water sheet,’ ‘may have an adverse effect on resource areas and the use of these areas,’ and ‘is likely to result in negative effects on shellfish.’ Ultimately, the commission found that Martin failed to prove, by a preponderance of the evidence, that ‘a permanent pile pier would, in fact, lessen the environmental impacts’ compared to a seasonal pier. However, the proper question under the local regulations was whether Martin proved that the project would not have ‘unacceptable significant or cumulative effects’ on the wetland resource values. The commission’s findings are premised on its assessment of the relative merits of seasonal piers versus permanent piers; the regulations do not prohibit permanent piers, however, and the commission did not identify with particularity any unacceptable significant and cumulative effect of the project. Although the commission stated that the change from a seasonal pier to a permanent pier would have a ‘cumulative effect on the overall water sheet,’ there was no evidence of the cumulative impact of the project, nor of the effects of existing docks and future docks with pending applications as required under §703-5(A) of the regulations. Instead, the commission simply expressed concern that the project would ‘set a precedent for all existing seasonal piers’ in Barnstable.

“Because the commission did not apply the correct standard, the commission’s ‘denial of [Martin’s] application was improperly based on a policy existing outside of the regulatory framework.’ Fieldstone Meadows Dev. Corp. v. Conservation Comm’n of Andover, 62 Mass. App. Ct. 265, 267 (2004). Where the commission failed to apply the standard of review articulated by the local regulations, we conclude that the commission’s decision to deny Martin’s application was arbitrary and capricious and based on an error of law. … Thus, we vacate the Superior Court judgment and remand the case for entry of a new judgment, annulling the commission’s decision and remanding the matter to the commission for further factual findings and application of the proper standard under the local regulations; that is, whether the project would have ‘unacceptable significant or cumulative effects’ on the wetland resource values. …”

Martin v. Conservation Commission of Barnstable (Lawyers Weekly No. 81-109-25) (7 pages) (Docket No. 24-P-674) (July 14, 2025).

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