Mostyn v. Department of Environmental Protection, et al. (Lawyers Weekly No. 11-081-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑1284                                       Appeals Court   JOHN MOSTYN, trustee,[1]  vs. DEPARTMENT OF ENVIRONMENTAL PROTECTION & others.[2]     No. 12‑P‑1284. Suffolk.     April 4, 2013.  ‑  June 24, 2013. Present:  Meade, Milkey, & Hanlon, JJ.   Real Property, Beach, Conservation restriction.  Beach.  Wetlands Protection Act.  Department of Environmental Protection.  Municipal Corporations, Conservation commission.  Administrative Law, Standing, Regulations, Agency’s interpretation of regulation.  Practice, Civil, Standing.       Civil action commenced in the Superior Court Department on July 20, 2010.   The case was heard by Thomas E. Connolly, J., on motions for judgment on the pleadings.     David L. Klebanoff for the plaintiff. Suleyken D. Walker, Assistant Attorney General, for Department of Environmental Protection. Justin Perrotta for Terry Milligan.     MILKEY, J.  The Sea Pines Condominium Association (Sea Pines) owns a lengthy stretch of beach in Brewster.  On a long-standing basis, members of the association have stored kayaks on a coastal dune there.  Upland of the area where the kayaks were stored is property owned by the Lot 106-2 Dune Road Realty Trust, whose sole beneficiary is Joseph E. Corcoran.  Corcoran objects to the kayaks being stored in front of his property and the attendant foot traffic that it engenders.  At his instance, the conservation commission of Brewster (commission) determined that the storage of the kayaks on the dune was an activity subject to regulation pursuant to the Wetlands Protection Act, G. L. c. 131, § 40 (the act), and therefore that it could continue only if Sea Pines obtained an order of conditions allowing such use.  After several layers of administrative review and an adjudicatory hearing, the Department of Environmental Protection (DEP) issued a final decision temporarily allowing the kayak storage to resume on certain specified conditions.  On Corcoran’s appeal taken pursuant to G. L. c. 30A, § 14, a Superior Court judge affirmed DEP’s decision.  We affirm the judgment. Background.  According to evidence presented at the adjudicatory hearing, Sea Pines has stored kayaks or other small boats on the dune since 1981.  Although Corcoran contested that specific date, it appears undisputed that the practice has been of very long duration. As DEP’s presiding officer found, and Sea Pines does not dispute, the long-standing storage of the boats, and attendant foot traffic, has had an adverse impact on the dune.  Specifically, the portion of the dune at issue has […]

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