Beverly Port Marina, Inc. v. Commissioner of the Department of Environmental Protection, et al. (Lawyers Weekly No. 11-145-13)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us       12‑P‑2010                                       Appeals Court   BEVERLY PORT MARINA, INC.  vs.  COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[1] No. 12‑P‑2010. Essex.     September 12, 2013.  ‑  December 11, 2013. Present:  Green, Grainger, & Fecteau, JJ.   Department of Environmental Protection.  Administrative Law, Agency’s interpretation of regulation, Regulations.  Regulation.  Real Property, Littoral property, License.  License.       Civil actions commenced in the Superior Court Department on July 22 and November 7, 2011.   After consolidation, the case was heard by David A. Lowy, J., on motions for judgment on the pleadings.     Adam J. Brodsky for the plaintiff. Louis M. Dundin, Assistant Attorney General, for Department of Environmental Protection. Richard A. Nylen, Jr., for city of Beverly.       GREEN, J.  Under the regulations governing issuance of licenses under G. L. c. 91 for projects on filled tidelands, a license may not issue for a project proposed in a “designated port area” (DPA) if a proposal for a “competing project” submitted during the public comment period on the license application would promote water-dependent industrial uses of the project site to a greater extent than the project proposed in the license application.  See 310 Code Mass. Regs. § 9.36(5)(a) (1994).  During review by the Department of Environmental Protection (DEP) of an application by the city of Beverly (city) for licenses authorizing, inter alia, construction and operation of a restaurant on a waterfront site, the plaintiff, Beverly Port Marina, Inc. (BPM), submitted a proposal to, inter alia, build and operate a boatyard on the site instead.  A DEP hearing officer (presiding officer) concluded that BPM’s submission failed to demonstrate that its proposal was feasible, and recommended issuance of the licenses, with conditions, for the city’s proposed project.  The DEP commissioner adopted the recommended decision, and BPM appealed the decision to the Superior Court, where a judge affirmed the decision on cross motions for judgment on the pleadings.  We conclude that BPM’s competing proposal adequately satisfied the criteria established by the applicable regulations, and we vacate the judgment.   Background.  The site at the center of the controversy among the parties is a parcel owned by the city known as “Glover’s Wharf,” located along the Beverly waterfront.  The site is at the westernmost end of a DPA established in 1978 under the Massachusetts Coastal Zone Management Plan.  See 301 Code Mass. Regs. […]

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