JAMES HALLECK HOELAND, Trustee v. CONSERVATION COMMISSION OF WELLFLEET.

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

23-P-1304
23-P-1305

JAMES HALLECK HOELAND, trustee, 1

vs.

CONSERVATION COMMISSION OF WELLFLEET.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, James Halleck Hoeland, as "Trustee of the

Family Trust Established Under Article IV, Paragraph (E)(1) of

the Grantor Retained Annuity Trust of Mark Blasch Dated October

23, 2008" (trust), appeals from a Superior Court judgment

affirming the decision of the defendant conservation commission

of Wellfleet (commission) to deny the trust's application to

construct a coastal engineering structure (CES) on a coastal

bank located on the trust's property. Because the local

1Of the Family Trust Established Under Article IV,
Paragraph (E)(1) of the Grantor Retained Annuity Trust of Mark
Blasch Dated October 23, 2008.
environmental protection regulations are more restrictive than

State regulations, we affirm.

Background. 1. The trust's project. The trust owns

property in Wellfleet that contains a single-family residential

dwelling constructed in 2010. 2 The property also contains a

costal bank as defined in the Wetlands Protection Act, G. L.

c. 131, § 40 (act), and the State regulations promulgated

thereunder (State regulations). See 310 Code Mass. Regs.

§ 10.30 (2014). 3 The dwelling is located near the top of the

eroding coastal bank. 4 On September 12, 2018, the trust filed a

notice of intent (NOI) with the commission seeking an order of

conditions under the provisions of the act, the Wellfleet

environmental protection bylaw (bylaw), and the Wellfleet

environmental protection regulations (local regulations), to

2 The property contained a dwelling prior to August 10,
1978. In 2007, the commission issued an order of conditions
authorizing the demolition of the structure and the construction
of the dwelling at issue here.

3 Unless otherwise noted, all references to the State
regulations are to the 2014 version, which was in effect in 2018
when the trust filed its notice of intent. A coastal bank is
defined in 310 Code Mass. Regs. § 10.30(2) as "the seaward face
or side of any elevated landform, other than a coastal dune,
which lies at the landward edge of a coastal beach, land subject
to tidal action, or other wetland."

4 In 2018, the dwelling's foundation and deck were located
within twenty-five feet and fourteen feet, respectively, from
the top of the coastal bank. Those distances have since
decreased.

2
construct a CES on the coastal bank to prevent further erosion

and protect the dwelling. Pursuant to the State and local

regulations, the commission may permit a CES on a coastal bank

to prevent damage to buildings constructed prior to August 10,

1978. 5 See 310 Code Mass. Regs. § 10.30(3). In November 2018,

the trust revised the proposal and submitted additional

materials to the commission. The proposed CES consisted of a

241-foot-long rock revetment, covered with fiber rolls and a

planted sand cover, with annual sand nourishment.

2. First decision and proceedings. In December of 2018,

after a public hearing, the commission voted to deny the NOI.

In its decision, the commission found that the trust was not

entitled to a CES under the local regulations because the

dwelling on the property was constructed in 2010 and since

August 10, 1978, "two separate dwellings have been built and

removed from the site." It also found that the "armoring" of

the property through the construction of a CES "is likely to

lead to significant erosion on abutting properties."

On February 1, 2019, the trust brought an action in the

nature of certiorari in the Superior Court pursuant to G. L.

5As discussed infra, the State regulations also provide
that a CES may be permitted to protect post-August 10, 1978
reconstructions of pre-August 10, 1978 structures. See 310 Code
Mass. Regs. § 10.30(3).

3
c. 249, § 4. On April 24, 2020, a judge allowed the trust's

motion for judgment on the pleadings. The judge found that the

commission was required to include a "specific condition"

pursuant to 310 Code Mass. Regs. § 10.30(5), in the 2007 order

of conditions that no CES shall be permitted "if at that time it

deemed the reconstruction of the structure to be a 'new

building,'" i.e., one constructed for the first time after

August 10, 1978. 6 The judge acknowledged that the local

regulations were more stringent than the act in that they did

not "allow[] for the protection of pre-1978 buildings

'reconstructed' after 1978," but concluded that the denial of

the NOI on the basis of categorizing the structure as "[post]-

1978" was arbitrary and capricious in light of the absence of

the specific condition. 7 The judge remanded the matter to the

6 Title 310 Code Mass. Regs. § 10.30(5) provides that the
order of conditions and certificate of compliance for "any new
building within 100 feet landward of the top of a coastal bank
permitted by the issuing authority" under G. L. c. 131, § 40,
must contain the following condition: "310 CMR 10.30(3),
promulgated under [G. L. c. 131, § 40], requires that no coastal
engineering structure, such as a bulkhead, revetment, or seawall
shall be permitted on an eroding bank at any time in the future
to protect the project allowed by this [o]rder of [c]onditions."

7 The judge further concluded that (1) the commission's
denial of the application "based on findings of insufficient
information" provided by the trust was not supported by
substantial evidence and was thus arbitrary, and (2) the
commission "applied a too stringent interpretation" of the "no
feasible alternative" requirement and imposed an undue burden on
the trust.

4
commission to "consider the proposal anew" based on the

"information provided to it." 8

On May 7, 2020, the trust filed a motion in the Superior

Court to vacate the judgment and reconsider the April 24, 2020

decision. The trust asked the Superior Court judge to (1) order

the commission to treat the dwelling as a pre-August 10, 1978

structure on remand, (2) consider the proposal based on the

administrative record alone, and (3) retain jurisdiction over

the matter pending the commission's reconsideration of the NOI.

On June 22, 2020, the judge, treating the motion as one to alter

and amend, agreed that the Superior Court would retain

jurisdiction and instructed that, upon remand, "the [c]ommission

should review the proposal pursuant to section 2.03(2) of the

bylaw, which authorizes the [c]omission to allow a CES provided

certain requirements are met." The judge concluded that the

record contained "sufficient information for the [c]ommission to

evaluate the proposal and render a decision on the issues to be

resolved on remand." An amended judgment entered on June 24,

2020.

8 The judge instructed that, if the commission required
additional information on remand, "it must specify the reason
why the information provided i[s] insufficient and identify the
information sought."

5
The commission filed a notice of appeal from the April 24,

2020 order allowing the trust's motion for judgment on the

pleadings, and the amended judgment. In response, the trust

filed a motion to strike the notice of appeal or, in the

alternative, vacate the amended judgment. On December 28, 2020,

a different Superior Court judge allowed the trust's motion in

part and vacated the amended judgment. The judge concluded that

"[i]t remains an Order of the Court" that (1) the commission's

decision to treat the dwelling as a post-August 10, 1978

structure was arbitrary, (2) the matter was remanded for the

commission to "evaluate the proposal and render a decision on

the issues to be resolved," and (3) the commission was to

commence a further public hearing within sixty days. 9

3. Second decision and proceedings. On February 17, 2021,

after the matter was remanded, the commission held a public

hearing. 10 During the hearing, the commission accepted

9 There is no dispute that the appeal associated with the
commission's first decision and the subsequent Superior Court
orders entered before the remand is moot. Nonetheless, where
the trust's appeal to the Superior Court from the commission's
first decision and the resulting Superior Court orders were
interlocutory, everything in the record is properly before us on
appeal.

10Before the remand hearing, on February 3, 2021, the
commission held a hearing regarding an after-the-fact NOI that
the trust had filed. As an interim measure, the commission
authorized the trust to install a "three-tier, sand filled, coir
envelope array at the toe of the existing coastal bank." On
March 5, 2021, the commission issued an after-the-fact order of

6
additional evidence in the form of letters, reports, and

testimony. On March 3, 2021, the commission issued a decision

denying the trust's application. The commission found that the

Superior Court had "remanded the case back to the [c]ommission

as a pre-1978 structure," but referenced its prior conclusion

that the dwelling was not a pre-August 10, 1978 structure.

Nevertheless, it found that the proposal had not met the

performance standards under § 2.03(4)(a)(2) of the local

regulations. It further found that the trust had failed to

demonstrate that the project would have "no significant adverse

impact" on the adjacent and nearby coastal resource areas and

that the trust had not provided proof that there were "no

feasible alternative methods of protecting the building."

On April 15, 2021, the trust again sought certiorari review

in the Superior Court. 11 On September 27, 2023, a Superior Court

judge allowed the commission's cross motion for judgment on the

pleadings. The judge found that, "giving due weight to the

[c]ommission's interpretation of the bylaw . . . the commission

conditions authorizing the project. No issues regarding these
actions are before us.

11Although the Superior Court had retained jurisdiction
over the matter, the trust commenced a separate action by filing
another writ of certiorari in the Superior Court. On February
7, 2023, the two actions were consolidated in the Superior
Court.

7
was entitled to categorize the [t]rust's house as a post-1978

structure." The judge also found that the commission had ample

evidence from which it could conclude that the proposed CES

would reduce the ability of the coastal bank to "provide

sediment to coastal beaches, coastal dunes, barrier beaches,

tidal flats, or sub-tidal areas." On October 2, 2023, judgment

entered affirming the commission's decision denying the trust's

second application for an order of conditions. The trust

appealed therefrom. 12

Discussion. 13 1. Standard of review. We review the

allowance of a motion for judgment on the pleadings de novo.

Boston v. Conservation Comm'n of Quincy, 490 Mass. 342, 345

(2022).

12Although the trust's notice of appeal includes an appeal
from an order denying its motion to strike, it makes no separate
argument on appeal as to that order and we do not address it.

13Following oral argument in this appeal, the commission
filed a motion to dismiss the appeals as moot because the trust
had sold the property to a party who "demolish[ed] the structure
at the [p]roperty," such that "there is no longer any structure
left at the [p]roperty." The trust opposed the motion to
dismiss arguing, inter alia, that the order of conditions sought
by the trust is still a live issue because, "if the [trust] has
a legal right to construct the CES, such CES is still of value
to protect the [p]roperty, regardless of whether the [d]welling
exists." Although there is a measure of persuasiveness to the
commission's argument, we assume, without deciding, that the
case is not moot. See Styller v. Zoning Bd. of Appeals of
Lynnfield, 487 Mass. 588, 595 (2021), quoting Rosado v. Wyman,
397 U.S. 397, 403 (1970) ("Unlike standing, 'mootness [is] a
factor affecting [the court's] discretion, not its power,' to
decide a case").

8
"In an action in the nature of certiorari challenging a
wetlands permit decision made by a conservation commission
pursuant to a local by-law, our review is 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). A decision is arbitrary and capricious if

"there is no ground which 'reasonable men might deem proper' to

support it" (citation omitted). T.D.J. Dev. Corp. v.

Conservation Comm'n of N. Andover, 36 Mass. App. Ct. 124, 128

(1994). The commission's selection between two conflicting

evidentiary views will not be disturbed on appeal as long as

that selection was reasonable. See Conservation Comm'n of

Falmouth v. Pacheco, 49 Mass. App. Ct. 737, 739 n.3 (2000).

2. Interpretation of the local regulations. The trust

argues that the commission's determination that the dwelling was

not a pre-August 10, 1978 structure was arbitrary and capricious

because, consistent with the act and State regulations, the

local regulations "demonstrate an intent to protect properties

improved by buildings prior to August 10, 1978." 14 Put another

14The trust also claims that the judge erred when he
determined that the pre-August 10, 1978 status of the dwelling
had been before the commission on remand. Even assuming this to
be true, it is of no consequence where our review of the motion
for judgment on the pleadings is de novo. As mentioned supra,
the commission noted in its second decision that the matter was
remanded "as a pre-1978 structure," and treated the dwelling as

9
way, the trust contends that the commission erred by

interpreting the local regulations to require that the dwelling

on the property had to be constructed prior to August 10, 1978,

to be entitled to pre-1978 status. The argument is unavailing.

The act "establishes Statewide minimum wetlands protection

standards, and local communities are free to impose more

stringent requirements." Oyster Creek Preservation, Inc. v.

Conservation Comm'n of Harwich, 449 Mass. 859, 866 (2007). We

give substantial deference to the commission's reasonable

interpretation of its bylaws and regulations. See Nelson v.

Conservation Comm'n of Wayland, 90 Mass. App. Ct. 133, 134

(2016); Rodgers v. Conservation Comm'n of Barnstable, 67 Mass.

App. Ct. 200, 208 (2006). The State regulations provide, in

pertinent part:

"[n]o new . . . coastal engineering structure shall be
permitted on such a coastal bank except that such a coastal
engineering structure shall be permitted when required to
prevent storm damage to buildings constructed prior to the
effective date of 310 CMR 10.21 through 10.37 . . . (August
10, 1978), including reconstructions of such buildings
subsequent to [August 10, 1978]."

such in making its findings. However, the commission referenced
the finding from its first decision -- that the dwelling was not
a pre-August 10, 1978 structure -- in the second decision and
the finding was revisited by the Superior Court judge in
entering judgment on the pleadings in favor of the commission.
Thus, we first address the commission's denial of the trust's
application based on its finding that the structure was not a
pre-August 10, 1978 structure under § 2.03(4)(a)(2) of the local
regulations.

10
310 Code Mass. Regs. § 10.30(3). By contrast, § 2.03(4)(a)(2)

of the local regulations provides only that "the [c]ommission

may allow a CES when required to prevent storm damage to

buildings constructed prior to August 10, 1978." There is no

provision in the local regulations that affords pre-August 10,

1978 status to reconstructions that occurred after August 10,

1978. The local regulations are thus more restrictive than the

act regarding the construction of a CES on properties improved

by reconstructions of pre-August 10, 1978 structures.

The trust also argues that the commission's failure to

include the specific condition required by 310 Code Mass. Regs.

§ 10.30(5) for new buildings in the 2007 order of conditions

authorizing the dwelling's construction "demonstrates that the

[c]ommission intended that the permitted dwelling on the

[p]roperty would maintain its status as a pre-1978 dwelling."

Here, under the act and State regulations, the dwelling would

maintain its status as a pre-August 10, 1978 dwelling and,

therefore, no specific condition was required. Although the

reconstruction was not protected as a pre-August 10, 1978

dwelling under the local bylaw and local regulations, this did

not trigger the condition where, unlike the act, the local

regulations do not contain such a requirement. Indeed,

including a condition designating certain constructions as "new

buildings" would have been unnecessary where, as discussed

11
above, reconstructions are not afforded pre-August 10, 1978

status under the local regulations. Thus, the commission's

conclusion that the dwelling on the trust's property was not a

pre-August 10, 1978 structure was supported by its reasonable

interpretation of § 2.03(4)(a)(2) of the regulations.

In accordance with the commission's interpretations of its

regulations, the proposal was subject to review under section

2.03(4)(a)(1), which provides that a CES that "reduce[s] the

ability of the [c]oastal [b]ank to provide sediment to coastal

beaches, coastal dunes, barrier beaches, tidal flats, or sub-

tidal areas shall not be allowed." There was substantial

evidence that the trust's proposal did not meet that standard. 15

The very purpose of the proposed CES was to "stop the entire

coastal bank from eroding," thereby causing a reduction in the

supply of sediment. The commission's decision was fully

supported and was not arbitrary or capricious. See Rodgers, 67

Mass. App. Ct. at 205-206, quoting New Boston Garden Corp. v.

Assessors of Boston, 383 Mass. 456, 466 (1981) ("A finding is

based upon substantial evidence if 'experience permits the

reasoning mind to make the finding; [i.e.,] whether the finding

15Counsel for the trust conceded at oral argument that the
"nature of the CES is to prevent any further erosion of the
coastal bank," and thus it would not be possible to meet the
standard under § 2.03(4)(a)(1).

12
could have been made by reference to the logic of experience'"

[emphasis omitted]).

3. Denial under § 2.03(4)(a)(2) of the local regulations.

Even assuming that the dwelling on the trust's property was

entitled to pre-August 10, 1978 status, there was substantial

evidence in the administrative record to support the

commission's conclusion in its second decision that the trust

did not satisfy the performance standards under section

2.03(4)(a)(2) of the local regulations. Section 2.03(4)(a)(2)

provides that the commission "may" permit a CES to protect

buildings constructed before August 10, 1978, so long as certain

requirements are met. Those requirements include, inter alia,

that the CES is designed to have "no significant adverse impact"

on adjacent or nearby resource areas and that the applicant

provide an "alternatives analysis." 16

Here, the commission's expert opined that the proposed CES

could result in "flanking," a process by which "adjacent

properties continue to erode naturally, while the project site

maintains a shoreline position further seaward than necessary to

protect the house." The Department of the Interior also

expressed concern with the effects of the proposal and predicted

16The alternatives analysis requires the applicant to
provide "[p]roof that there are no feasible alternative methods
of protecting the building other than the proposed CES."

13
that it would have "severe, adverse impacts on the resources"

and noted that the effects "will not be minimal." Moreover, the

coir envelopes, although not a permanent solution, were an

existing alternative, and the trust's expert testified to the

commission that the measure "should be effective in preventing

bank retreat for 2 to 3 years and could be renewed at that

point."

The trust also contends that the commission's decision was

"tainted" because it accepted new materials and supplemented the

existing record. In remand proceedings, "[t]he judge, not the

petitioner, sets the terms of the remand." Nasca v. Board of

Appeals of Medway, 27 Mass. App. Ct. 47, 49 (1989). We note

that it is unclear what orders remained in effect regarding the

scope of the remand. 17 In any event, the trust has failed to

demonstrate that it was prejudiced as a result of the commission

accepting additional information. The commission could have

concluded, based solely on the evidence in the administrative

record from its first decision, that there was substantial

evidence that the proposal did not meet the performance

standards.

17Unlike the Superior Court judge's April 24, 2020 written
decision on the cross motions for judgment on the pleadings and
the subsequent amended order, the December 28, 2020 order
vacating the amended judgment was silent on whether the
commission could accept new information.

14
In sum, the commission's findings were supported by

substantial evidence and its reasonable interpretation of the

local regulations is entitled to substantial deference. See

Rodgers, 67 Mass. App. Ct. at 208.

Judgment entered October 2,
2023, affirmed.

By the Court (Neyman,
Ditkoff & Wood, JJ. 18),

Clerk

Entered: May 7, 2025.

18 The panelists are listed in order of seniority.

15