Miramar Park Ass'n, Inc. v. Town of Dennis

105 N.E.3d 241, 480 Mass. 366
CourtMassachusetts Supreme Judicial Court
DecidedAugust 30, 2018
DocketSJC-12449
StatusPublished
Cited by5 cases

This text of 105 N.E.3d 241 (Miramar Park Ass'n, Inc. v. Town of Dennis) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miramar Park Ass'n, Inc. v. Town of Dennis, 105 N.E.3d 241, 480 Mass. 366 (Mass. 2018).

Opinion

GAZIANO, J.

*243**367In this appeal, we are asked to consider whether dredging and beach nourishment projects undertaken by the town of Dennis violated Massachusetts environmental regulations by requiring that materials dredged from the mouth of a tidal river be deposited on a publicly-owned beach, rather than on an adjacent, privately-owned beach. The plaintiffs, homeowners and a homeowners' association, commenced an action in the Superior Court, pursuant to G. L. c. 214, § 7A, against the town, seeking injunctive relief and a declaratory judgment on their claim that the town's actions violated a Department of Environmental Protection (DEP) regulation designed to protect beaches that are downdrift from jetties from loss of sediments caused by the jetties. After both parties filed cross motions for summary judgment, a Superior Court judge concluded that the town's extension of a jetty at the mouth of Swan Pond River in the early 1990s triggered the requirements of 310 Code Mass. Regs. § 10.27 (2014), and allowed the plaintiffs' motion. The judge also issued an injunction permanently requiring the town "periodically [to re]dredge [the river]" and to deposit the dredged material on the plaintiffs' private beach. The town appealed, and we transferred the case from the Appeals Court on our own motion.

We conclude that judgment should not have entered for the plaintiffs, and that judgment instead should have entered for the town. Among other things, the plaintiffs have introduced nothing in the summary judgment record showing that the town's extension of the jetty violated, or even triggered, the requirements of 310 Code Mass. Regs. § 10.27(4)(c). In addition, as the judge found, the town's subsequent dredging of the river did not trigger the requirements of that regulation. Because the plaintiffs would be unable to prove an essential element of their claim at trial, the order of injunction must be vacated, and the judgment allowing summary judgment for the plaintiffs must be reversed.

1. Statutory overview. A number of potentially overlapping statutes and regulations are at issue in this case. Because an understanding of the interrelationships among them is essential to understanding the issues raised, we describe each in some detail.

General Laws c. 214, § 7A,2 an environmental citizen suit provision, allows a group of at least ten residents of the Commonwealth **368to file a complaint in the Superior Court when damage to the environment is occurring or is about to occur as a result of an action by, inter alia, a municipality, that is in "violation of a statute, ordinance, by-law or regulation the major purpose of which is to prevent or minimize damage to the environment." See Boston v. Massachusetts Port Auth., 364 Mass. 639, 645, 308 N.E.2d 488 (1974). The statute defines "damage to the environment" as "any destruction, damage or impairment, actual or probable, to any of the *244natural resources of the [C]ommonwealth, whether caused by the defendant alone or by the defendant and others acting jointly or severally." G. L. c. 214, § 7A.

The wetlands protection act, G. L. c. 131, § 40 (act), "was created to protect wetlands from destructive intrusion," Healer v. Department of Envtl. Protection, 73 Mass.App.Ct. 714, 716, 901 N.E.2d 161 (2009), and, inter alia, governs the dredging of wetlands and lands bordering waters. See G. L. c. 131, § 40. The act requires, in relevant part, that a party wishing to dredge first must file a written notice with a local issuing authority, often, as in this case, a local conservation commission, which exercises local regulatory authority under the act. See G. L. c. 131, § 40. Following a hearing, the authority shall determine if the project affects an area that is "significant to public or private water supply, to the groundwater supply, to flood control, to storm damage prevention, to prevention of pollution, to protection of land containing shellfish, to the protection of wildlife habitat or to the protection of fisheries." Id. If so, the issuing authority issues a written order that "impose[s] such conditions as will contribute to the protection of [these] interests ... and all work shall be done in accordance therewith." Id. No work may be done without "receiving and complying with [this] order of conditions." Id. DEP has promulgated regulations under G. L. c. 131, § 40, to protect wetlands. See 310 Code Mass. Regs. §§ 10.00 (2014). Specifically, **369310 Code Mass. Regs. §§ 10.21 - 10.37 are applicable to all dredging covered under G. L. c. 131, § 40. See 310 Code Mass. Regs. § 10.21. These regulations are "performance standards ... intended to identify the level of protection the issuing authority must impose in order to contribute to the protection of the interests of [G. L.] c. 131, § 40." Id. If the issuing authority determines that a project will affect one of the protected interests under the act, the issuing authority must "order specific measures and requirements for each proposed project which will ensure that the project is designed and carried out consistent with the required level of protection," and must memorialize those requirements in an "[o]rder of [c]onditions which is understandable and enforceable." Id.

A number of other State and Federal statutes and regulations concerning water quality also are applicable to the areas at issue in this case. General Laws c. 21, § 27, provides that "[i]t shall be the duty and responsibility of the division [of water pollution control] to enhance the quality and value of water resources and to establish a program for prevention, control, and abatement of water pollution" in the Commonwealth. DEP has issued water quality regulations pursuant to G. L. c. 21, § 27, and G. L. c. 91, §§ 52 - 56. See 314 Code Mass. Regs. §§ 9.00 (2014). Section 9.01(1) of those regulations provides that they "establish[ ] procedures and criteria for the administration of Section 401 of the [F]ederal Clean Water Act, 33 U.S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
105 N.E.3d 241, 480 Mass. 366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miramar-park-assn-inc-v-town-of-dennis-mass-2018.