STEPHEN M. McPARLAND, Trustee, & Another v. CONSERVATION COMMISSION OF BARNSTABLE.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-675

STEPHEN M. McPARLAND, trustee,1 & another2

vs.

CONSERVATION COMMISSION OF BARNSTABLE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Stephen M. McParland and Beth F. McParland,

as trustees for the McParland Family 2014 Revocable Trust

(McParlands), brought an action in the nature of certiorari

under G. L. c. 249, § 4, challenging the denial by the

conservation commission of Barnstable (commission) of their

application to construct a permanent pier on their waterfront

property in Osterville (property). On the parties' cross

motions for judgment on the pleadings, a Superior Court judge

entered judgment affirming the decision of the commission. The

1 Of the McParland Family 2014 Revocable Trust.

2Beth F. McParland, as trustee of the McParland Family 2014
Revocable Trust.
McParlands appeal, claiming principally that the commission's

decision was arbitrary and capricious and based on findings

unsupported by substantial evidence. We vacate the Superior

Court judgment and remand for entry of a new judgment that

annuls the decision of the commission and remands the matter to

the commission for further consideration.

Background. The McParlands own property at 150 Carriage

Road in Osterville. On December 16, 2022, the McParlands

applied for a permit to build a pier for nonmotorized watercraft

in a high-value shellfish area (project). On January 3, 2023,

and February 14, 2023, the commission held public hearings on

the project. On February 28, 2023, the commission voted to

approve the project under the Wetlands Protection Act, G. L.

c. 131, § 40 (act), but to deny the project under the town's

wetland protection regulations. On March 2, 2023, the

commission issued an order of conditions and, in support of its

decision, found that the McParland project would (1) reduce

water access for shellfish harvesting; (2) have a significant

impact on shellfish habitat due to space occupied by pilings;

(3) scour shellfish habitat; and (4) contribute to the potential

for exotic species proliferation.

Discussion. We review de novo a judge's order allowing a

motion for judgment on the pleadings. See UBS Fin. Servs., Inc.

v. Aliberti, 483 Mass. 396, 405 (2019). "[O]ur review is

2
limited at most to whether the commission's decision is

supported by substantial evidence in the administrative record,

whether the commission's action was arbitrary and capricious,

and whether the commission committed an abuse of discretion or

other error of law." Delapa v. Conservation Comm'n of Falmouth,

93 Mass. App. Ct. 729, 733-734 (2018). Under the act,

municipalities are empowered to issue regulations and "may enact

more stringent requirements than those provided in the act."

See Hobbs Brook Farm Prop. Co. v. Conservation Comm'n of

Lincoln, 65 Mass. App. Ct. 142, 149 (2005). "Unless an agency's

interpretation of its own regulation is arbitrary, unreasonable,

or inconsistent with the plain terms of the rule, such

interpretation is entitled to deference" (quotation and citation

omitted). Carey v. Commissioner of Correction, 479 Mass. 367,

369-370 (2018).

Section 703-3(A) of the local regulations requires an

applicant, in relevant part, to file a notice of intent before

constructing "any new pier or dock, whether fixed or floating,

permanent or seasonal." Under local regulation § 237-6(B), the

commission is authorized to deny a permit where the application

(1) fails "to meet the design specifications, performance

standards, policy guidelines or other requirements in [the

regulations]"; (2) fails "to avoid or prevent unacceptable

significant or cumulative effects upon the wetlands values

3
protected by [the regulations]"; or (3) where denial is "deemed

. . . necessary to preserve the environmental quality of

resource areas." According to local regulation § 703-1(K),

piers conforming to local regulations "can be presumed to

minimize . . . possible negative [wetland] impacts."

Here, the commission denied the McParlands a permit based

on findings that the project "will cause negative impacts on

[wetland] values" and "result in negative effects" on shellfish

habitats and fishing access.3 Ultimately, the commission found

that the McParlands failed to prove, by a preponderance of the

evidence, that "a permanent pile pier would, in fact, lessen the

environmental impact" compared to a seasonal pier.4 However, the

proper question under the local regulations was whether the

McParlands proved that the project would not have "unacceptable

3 The commission also argues in its brief that the project
did not comply with the performance standard limiting the length
of the pier to one hundred feet from mean low water to the end
of the pier. However, the McParlands' proposed pier was eighty-
one feet from mean low water to the end of the pier, and thus
complied with the regulation.

4 We note that in a May 9, 2023, order of conditions
approving an unrelated permit application to convert a nearby
seasonal pier to a permanent pier, the commission made no
mention of a requirement that the applicant prove the permanent
pier's lesser environmental impact compared to the seasonal
pier.

4
significant or cumulative effects" on the wetland resource

values.5

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." Fieldstone Meadows Dev. Corp. v. Conservation

Comm'n of Andover, 62 Mass. App. Ct. 265, 267 (2004). Where the

project complied but the commission failed to apply the standard

of review articulated by the local regulations, we conclude that

the commission's decision to deny the McParlands' application

was arbitrary and capricious and based on an error of law.6 See

5 To the extent that the commission based the permit denial
on "environmental quality" concerns due to potential for
proliferation of invasive species on permanent piers, we note
that the commission's May 9, 2023, permit application approval
for the nearby site did not mention the potential for the
proliferation of invasive species. The appeals in that
unrelated case and this case were paired for oral argument; at
oral argument, the commission offered no justification for why
the potential for invasive species proliferation was central to
the negative determination on the McParland pier application,
but not relevant to the approval of the other permit
application.

6 We decline to address the McParlands' general contention
that the commission's decision was a product of its "ad hoc
agenda against permanent docks and piers." The McParlands also
argue that the commission's determinations that the project
would reduce access for shellfish harvesting and that "ice
eaters" used to prevent pilings on permanent piers from freezing
would scour shellfish habitats were not supported by substantial
evidence. Based on our conclusion that the commission's
decision was arbitrary and capricious, we need not reach those
issues either, except to note that shellfish could be raked

5
id. at 268. Thus, we vacate the Superior Court judgment and

remand for entry of a new judgment that annuls the decision of

the commission and remands the matter to the commission for

further factual findings and application of the proper standard

under the local regulations; that is, whether the project would

have "unacceptable significant or cumulative effects" on the

wetland resource values.7

The judgment is vacated, and
the case is remanded to the
Superior Court for further
proceedings consistent with
this memorandum and order.

By the Court (Henry, Shin &
Brennan, JJ.8),

Clerk

Entered: July 14, 2025.

under and all the way around the project's pier, which would be
five feet above the water and only four feet wide.
Additionally, the project did not propose to use ice eaters.
Instead, the project would have used polyvinyl chloride (PVC)
collars around the pier's piles to prevent displacement of the
pier during the winter. In concluding that the project
necessitated the use of ice eaters, the commission made no
finding regarding the effectiveness of PVC collars.

7 The decision whether to hold additional hearings is within
the commission's discretion. See Box Pond Ass'n v. Energy
Facilities Siting Bd., 435 Mass. 408, 420 (2001).

8 The panelists are listed in order of seniority.

6