Franchi v. Falmouth Conservation Commission

24 Mass. L. Rptr. 368
CourtMassachusetts Superior Court
DecidedJuly 10, 2007
DocketNo. 200600281
StatusPublished

This text of 24 Mass. L. Rptr. 368 (Franchi v. Falmouth Conservation Commission) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Franchi v. Falmouth Conservation Commission, 24 Mass. L. Rptr. 368 (Mass. Ct. App. 2007).

Opinion

Nickerson, Gary A., J.

Plaintiffs David and Teresa Franchi filed this action in response to the Falmouth Conservation Commission’s issuance of an Order of Conditions for the construction of a replacement dock on their property. They seek certiorari review and declaratory relief from the Falmouth Conservation Commission’s decision to impose certain conditions on the construction of the dock. Plaintiffs’ motion for judgment on the pleadings was heard April 26, 2007.

BACKGROUND

The plaintiffs own residential property at 48 Deer Run Lane, North Falmouth, Massachusetts (“the Property”). On or about November 10, 2005, the plaintiffs filed a notice of intent seeking approval to replace an existing dock on the Property. The Property lies along a canal, which feeds into Fiddler’s Cove in Falmouth, Massachusetts.

A dock has existed at the Property since approximately 1987. The Massachusetts Department of Environment Protection (“the DEP”) granted a dock permit to a previous owner on June 30, 1987. The Falmouth Conservation Commission (“the Commission”) issued a Certificate of Compliance for the dock on October 28, 2004, which was recorded. As the dock currently exists, it consists of a ramp of about 20 feet that terminates at a 6 by 24-foot float. The plaintiffs first sought to replace the existing float and ramp with a 4 by 26-foot ramp, a 6 by 24-foot float, two 12-inch diameter piles, and three 12-inch dolphin piles.

Mark Patton, Director of the Town of Falmouth Department of Natural Resources, conducted a site visit. Patton concluded that the plaintiffs’ project should be considered “new construction” and not a “reconstruction.” He told the Commission that “[t]he proposed configuration occupies very little of the original footprint of the current structure" and “it has long been the position of the Conservation Commission that such projects should fall under all regulation and policies that appertain to a new structure.”

During his visit, Patton had a shell fisherman perform a half-pull of the area around the dock with a 24-inch non-screened bull rake. This half-pull revealed a total of thirty shellfish. Patton suggested that the Commission therefore require a shellfish survey to be done on the site. Correspondence from the Massachusetts Division of Marine Fisheries (“the DMF”) noted that Fiddler’s Cove was “Conditionally Approved” to be open for shellfishing between November 1 and April 30. Patton stated that the area is actively shellfished during the winter months.

Paul J. Diodati of the DMF voiced concerns about the project to the Commission in a letter dated December 14, 2005. Diodati stated that the project was within a “mapped habitat” for oysters and quahogs, effectively rebutting the fact that Fiddler’s Cove is not included on the Town of Falmouth’s Natural Resources Map as an area significant to shellfish. Regarding the dock’s design, Diodati stated that there was a danger that the proposed float would cause depressions in the substrate. While the water depth at the float was 3.5 feet, the pier profile showed that the water depth from the bottom of the boat to the substrate was about 2 feet. Further, DMF was concerned that motorized vessels using the float would most likely have less than 2 feet of separation from the bottom of the propeller and the substrate, and consequently “may result in the ‘prop dredging’ of the substrate."

Later, Vaccaro Environmental Consulting, Inc. (“VEC”) conducted a shellfish survey on the site leading to a Shellfish Survey Report dated January 19, 2006. The survey found that the recorded species density for quahog exceeds the threshold value of one quahog per 9 square feet established for significance under the Town of Falmouth Wetlands Regulations (“FWR”) 10.16(3). The species density for oysters was below the threshold value of three oysters per 9 square feet established in the same regulation. Relying on the quahog density, and the status of the canal as seasonally open to shellfishing, VEC determined that the site was “significant to shellfish as defined under the Falmouth Wetlands Regulations.”

After an initial hearing, the plaintiffs modified their proposal to include an “L” shaped fixed dock in place of the ramp and float, averting the danger that the float might interfere with the substrate. The plaintiffs also submitted a variance request to the Commission for relief from FWR 10.16(l)(h)(2), which prohibits construction of a new dock under certain situations, and from FWR 10.16(l)(d)(3), which limits the square footage of docks.

On March 22, 2006, the Commission approved the plaintiffs’ variance request, and issued an Order of Conditions approving construction of the fixed dock. [369]*369The Order of Conditions listed six specific findings by the Commission. First, the Commission found that the area around the replacement dock exceeded the shellfish density requirements of FWR 10.34(3)(b)(l). Second, it found that there was an existing licensed dock on the Property which was previously approved by the Commission. Third, it found that the “proposed replacement dock has a footprint that is slightly different than the existing dock, but it is identical in size.” Fourth, it found that the plaintiffs’ plan depicted a 50-foot mooring field, and that using a fixed dock rather than a float would better protect resource areas. Fifth, it found that the DMF noted that the maximum water depth at low tide would be about 4 feet and “large motorized vessels with drafts over 2 feet may still have less than 2 feet of separation between the bottom of the propeller skeg and the substrate.” Thus, use of the dock by such vessels may result in “prop dredging” the substrate, adversely impacting the significant shellfish habitat. Last, the Commission noted that the plaintiffs offered mitigation “for excess shellfish density of $1,000.00 worth of shellfish spat.”

There are six special conditions in the Order of Conditions. Special conditions four, five, and six are at issue. Special condition four is that “[a] boat draft restriction of 24 inches shaíl be imposed in the area of the dock designated as the mooring field.” Special Condition five is that “[o]nly one vessel may be tied to the pier at any given time.” Special Condition six provides that the Order of Conditions expires in three years, and may be renewed for periods of five years so long as an agent of the Commission determines that the dock is not adversely impacting the site.2 Three standard conditions in the Order of Conditions, numbered 32, 33, and 34, impose maintenance burdens similar to that of special condition six.

In the plaintiffs’ complaint, they challenge the Commission’s findings and imposition of special conditions four, five, and six. In argument before this court, the plaintiffs clarified their position to include a challenge to the standard conditions numbered 32, 33 and 34. The fate of conditions 32, 33 and 34 is directly tied to that of special condition six and requires no separate consideration.

DISCUSSION

A. Standard of Review

General Laws c. 249, §4, establishes limited judicial review in the nature of certiorari “to correct errors in proceedings which are not according to the course of the common law . . . [and] not otherwise renewable.” Sheriff of Plymouth County v. Plymouth County Pers. Bd., 440 Mass. 708, 710 (2004). “Certiorari allows a court to ‘correct only a substantial error of law, evidenced by the record, which adversely affects a material right of the plaintiff.’ ” Id., quoting

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Bluebook (online)
24 Mass. L. Rptr. 368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franchi-v-falmouth-conservation-commission-masssuperct-2007.