Attorneys notch trifecta of wins vs. Barnstable board

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On a single day earlier this month, a pair of land use attorneys brought home appellate wins in three separate cases for clients whose planned improvements to their Barnstable waterfront properties had been stymied by regulatory overreach.

Brian J. Wall and Clodagh L. Troy, of Troy Wall Associates in Sandwich, represent property owners JMS Holdings LLC, Shawn D. Martin, and Stephen and Beth McParland. Each sought approval from the Barnstable Conservation Commission to build or modify piers.

In each case, the commission cited the need for the protection of wetlands in either denying approval for the project outright or, in the case of CMS’s application, adding a condition that the property owner considered unacceptable. A Superior Court judge affirmed the commission’s ruling in all three instances.

But on July 14, the Appeals Court issued decisions in JMS, Martin and McParland reversing the judgments in favor of the commission.

“When you represent clients before these agencies, the agency needs to know that what is before it is the project and that they can’t just arbitrarily decide to impose conditions,” Wall says.

In JMS, the property owner had applied for approval to construct a permanent walkway in place of an existing partially permanent/partially seasonal walkway that was part of a pier extending from the shore of the waterfront home. Even though an existing seasonal float used for docking was not part of the proposed project, in approving the walkway the commission imposed a condition that any boat berthed at the float needed a minimum of 30 inches between the ocean floor and the bottom of the boat.

The problem with the condition was that the commission in 2003 had granted the property’s previous owners an exemption from wetlands protections in the form of allowing a 1-foot docking depth at the float.

“The client knew very well what they had bought because the regulations had changed over the 20 years that that dock had been in place,” Wall says. “They knew that they could not build a brand-new dock and meet the regulation, so they very deliberately did not propose any work [on the float] because they did not want to lose that [exemption].”

In vacating the regulatory action below, the Appeals Court panel in JMS concluded that the commission had exceeded its authority under the Wetlands Protection Act, G.L.c. 131, §40, and the town’s wetland protection regulations.

The panel first noted that since the commission approved the project for the elevated walkway, it had necessarily found that the work itself would not have “an unacceptable significant and cumulative effect” on wetland values expressed in the town’s bylaws.

The panel then concluded that the commission had simply gone too far in imposing a condition regarding a section of the pier that was not a part of the proposed construction project in the first place.

“The commission was not empowered to use the project as a hook to access JMS’s previously-vested exemption from the thirty-inch minimum docking depth at the float,” Judge Robert A. Brennan wrote for the panel. “Accordingly, the commission acted outside of its authority by imposing conditions requiring that boats be berthed only at the float with a thirty-inch minimum docking depth.”

As a published decision, Wall says JMS constitutes important precedent.

“The JMS case stands very clearly for the proposition that when a property owner goes before a conservation commission and applies for a permit, the scope of authority that the commission has — its jurisdiction — extends to the extent of the project, not the person’s property,” Wall says. “The Conservation Commission [here] basically took the position that this dock is in a wetland resource and therefore we can regulate it. I argued you can only regulate the extent of work that was proposed, not the structure itself.”

In Martin, the property owner appealed the ConCom’s outright denial of his application to construct a permanent pier in place of an existing seasonal pier that was located in a “high-value shellfish” area, as defined in local regulations.

The proposed project contemplated replacing the 4-inch-thick seasonal posts for the existing pier with 12-inch-thick permanent piles.

The commission found that the project complied with the state wetlands statute, yet it denied the application under local regulations on the ground that the increased area occupied by the pilings permanently reduced existing shellfish habitat.

In reaching its decision, the commission found that Martin failed to prove that “a permanent pile pier would, in fact, lessen the environmental impacts” compared to the posts for the existing seasonal pier.

In an unpublished decision, the Appeals Court reversed and remanded Martin for further consideration, holding “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.”

According to the court, the commission went astray in grounding its denial of Martin’s application on its assessment of the relative merits of seasonal piers versus permanent piers.

“[T]he regulations do not prohibit permanent piers, however, and the commission did not identify with particularity any unacceptable significant and cumulative effect of the project,” the panel wrote. “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 [local] regulations. Instead, the commission simply expressed concern that the

project would ‘set a precedent for all existing seasonal piers’ in Barnstable.”

Last but not least, the ConCom in McParland denied the property owners’ application to construct a permanent pier on their property. As in Martin, the commission found that, while the McParlands’ proposed project complied with the state’s wetland protection statute, it couldn’t be approved under local regs.

Specifically, the commission found that the McParland project would: (1) reduce water access for shellfish harvesting; (2) significantly impact shellfish habitat due to space occupied by pilings; (3) scour shellfish habitat; and (4) exacerbate the problem of exotic species proliferation.

The unpublished decision stated that the commission had yet again impermissibly imposed a burden on the property owners to show that permanent piles would lessen the environmental impact compared to posts used for seasonal piers.

“Because the commission did not apply the correct standard, the commission’s ‘denial of [the McParlands’] application was improperly based on a policy existing outside of the regulatory framework,’” the panel wrote.

Wall credits citizens who volunteer to serve on conservation commissions.

“They are very well-meaning and well-intended,” he says. “But these three cases make the point that they need to be reminded from time to time that they are [members of an] agency created by legislation — in this case a bylaw — and that they need to abide by that statutory authority.”

Citing the fact that the Appeals Court remanded Martin and McParland for further proceedings, Barnstable Town Attorney Karen L. Nober declined a request for comment.