SHAWN D. MARTIN, Trustee 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-674

SHAWN D. MARTIN, trustee,1

vs.

CONSERVATION COMMISSION OF BARNSTABLE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Shawn D. Martin, as trustee for the 310

North Bay Road Realty Trust (Martin), 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 his application to construct a permanent pier in place of an

existing seasonal pier on his 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. Martin appeals, claiming

principally that the commission's decision was arbitrary and

capricious and based on findings unsupported by substantial

1 Of the 310 North Bay Road Realty Trust.
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. In 2002, the commission approved an

application to construct a pier, a ramp, and a float at 310

North Bay Road in Osterville. The commission issued the permit

pursuant to the Wetlands Protection Act, G. L. c. 131, § 40

(act), and the town's wetlands protection regulations (local

regulations). That pier, ramp, and float currently exist at the

property.

In 2004, the commission promulgated new local regulations

regarding private docks and piers that impose additional

requirements for projects in "high-value shellfish" areas.

Nevertheless, the pier continued to exist in the same footprint

with full use as authorized by the 2002 order of conditions.

The pier is located within a high-value shellfish area.

On December 27, 2022, Martin applied for a permit to

convert the pier's support structure from temporary posts to

permanent piles (project). The converted pier would have the

same footprint and be in the same location as the existing pier.

The size of the posts for the existing seasonal pier was four

inches, while the size of the project's proposed piles was

twelve inches. The number of posts and piles was the same.

2
On January 10, 2023, after a public hearing, the commission

voted to approve the project under the act, but to deny it under

the local regulations. On January 26, 2023, the commission

issued an order of conditions, which included findings that the

project would (1) cause a permanent loss of shellfish habitat by

increasing the surface sediment area occupied by pilings;

(2) have a cumulative effect on the overall water sheet;

(3) increase the likelihood of the growth of invasive species on

the pier; and (4) reduce water access for fin fishing and boat-

based shellfish harvesting year-round, rather than seasonally.

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

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,

3
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 to file a notice of intent before constructing "any

new pier or dock, whether fixed or floating, permanent or

seasonal," and "for any substantial alteration or extension of

an existing pier or dock." Under local regulation § 237-6(B),

the commission is authorized to deny an application that

(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

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 Martin's permit based on

findings that the project "will have a cumulative effect on the

overall water sheet," "may have an adverse effect on resource

areas and the use of these areas," and "is likely to result in

negative effects on shellfish." Ultimately, the commission

4
found that Martin failed to prove, by a preponderance of the

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

environmental impacts" compared to a seasonal pier.2 However,

the proper question under the local regulations was whether

Martin proved that the project would not have "unacceptable

significant or cumulative effects" on the wetland resource

values.3 The commission's findings are premised on its

assessment of the relative merits of seasonal piers versus

permanent piers; the regulations do not prohibit permanent

piers, however, and the commission did not identify with

particularity any unacceptable significant and cumulative effect

of the project. Although the commission stated that the change

from a seasonal pier to a permanent pier would have a

"cumulative effect on the overall water sheet," there was no

2 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.

3 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 Martin pier application, but
not relevant to the approval of the other permit application.

5
evidence of the cumulative impact of the project, nor of the

effects of existing docks and future docks with pending

applications as required under § 703-5(A) of the regulations.

Instead, the commission simply expressed concern that the

project would "set a precedent for all existing seasonal piers"

in Barnstable.

Because the commission did not apply the correct standard,

the commission's "denial of [Martin's] 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

commission failed to apply the standard of review articulated by

the local regulations, we conclude that the commission's

decision to deny Martin's application was arbitrary and

capricious and based on an error of law.4 See id. at 268. Thus,

we vacate the Superior Court judgment and remand the case for

entry of a new judgment, annulling the commission's decision and

4 Martin also argues that the commission's determination
that the project would reduce water access for fin fishing and
boat-based shellfish harvesting was not supported by substantial
evidence. Based on our conclusion that the commission's
decision was arbitrary and capricious, we need not reach that
issue. However, we note that because the project's pier would
be six and one-half feet above the bottom and only four feet
wide, shellfish could be raked all the way around a permanent
pier. We decline to address Martin's general contention that
the commission's decision was a product of its "ad hoc agenda
against permanent docks."

6
remanding 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.5 See id. at 269-270 (remanding matter to local

conservation commission where denial of application was based on

legally incorrect assumption and "commission's findings

demonstrate[d] no consideration of the particularities of the

proposed detention basin or of the evidence as to the actual or

potential effect of the proposed work on the adjacent

wetlands").

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.6),

Clerk

Entered: July 14, 2025.

5 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).

6 The panelists are listed in order of seniority.

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