HomeMy WebLinkAboutFin Dec - WET-2016-027COMMONWEALTH OF MASSACHUSETTS
EXECUTIVE OFFICE OF ENERGY & ENVIRONMENTAL AFFAIRS
DEPARTMENT OF ENVIRONMENTAL PROTECTION
ONE WINTER STREET, BOSTON, MA 02108 617-292-5500
THE OFFICE OF APPEALS AND DISPUTE RESOLUTION
May 8, 2018
In the Matter of OADR Docket No. WET-2016-027
Ali and Elaine Bigdeliazari DEP File No. SE-83-2048
West Yarmouth, MA
RECOMMENDED FINAL DECISION
INTRODUCTION
In this appeal, Michael Durkin and Janet Durkin ("the Petitioners") challenge a
Superseding Order of Conditions ("SOC") that the Southeast Regional Office of the
Massachusetts Department of Environmental Protection ("MassDEP" or "the Department")
issued to Ali and Elaine Bigdeliazari ("the Applicants") on September 16, 2016, pursuant to the
Massachusetts Wetlands Protection Act, G.L. c. 131, § 40 ("MWPA"), and the Wetlands
Regulations, 310 CMR 10.00 et seq. ("the Wetlands Regulations"). The SOC affirmed the Town
of Yarmouth Conservation Commission's ("YCC") approval of the Applicants' proposed Project
at 188 Berry Avenue, West Yarmouth, Massachusetts ("the Property"), specifically "[s]ingle
family house additions, swimming pool, pervious driveway, garage, lawn reduction and
This Information Is available in alternate format. Call Michelle Waters-Ekanem, Diversity Director, at 617-292-5751. TDD# 1.866-539-7622
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MassDEP Website: v .mass.gov
('r1 Printed on Recycled Paper
replacement with mitigation planting of native salt tolerant species, [and] fencing." SOC, at p. 1.
The Department affirmed the YCC's approval of the proposed Project after finding that the
Project will not adversely affect the stability of the Coastal Bank, a wetlands resource, at the
Property.' Department's Pre -Hearing Statement, at pp. 1-2.
The Petitioners contend that the SOC violates the MWPA and the Wetlands Regulations
and request that the SOC be vacated and the proposed Project rejected because the Project
purportedly does not satisfy the Performance Standards for activities in Coastal Bank as set forth
in 310 CMR 10.30(6);2 the entire Project area will be located in Land Subject to Coastal Storm
Flowage ("LSCSF") and will not further the MWPA interests of flood control and storm damage
prevention;3 and the Project will be detrimental to wildlife habitat. Petitioners' Appeal Notice, at
pp. 3-5; Petitioners' Pre -Hearing Statement, at pp. 2-4, 7-8.
The Applicants and the Department dispute the Petitioners' claims and request that the
SOC be affirmed, contending that the Department properly issued the SOC pursuant to the
MWPA and the Wetlands Regulations. Applicant's Pre -Hearing Statement, at pp. 1-11;
Department's Pre -Hearing Statement, at pp. 1-2.
I conducted an evidentiary Adjudicatory Hearing ("Hearing") to resolve the following
issues raised by the Petitioners' appeal of the SOC:
1. Whether the proposed Project meets the Performance Standards for
' "Coastal Bank" is "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." 310 CMR 10.32(2).
s "Performance Standards" are "th[e] requirements established by [the Wetlands Regulations] for activities in or
affecting [specific wetlands areas protected by MWPA]" 310 CMR 10.04. The Performance Standards appear at
310 CMR 10.25 through 10.35 and 10.37, and 310 CMR 10.54 through 10.60. Id.
3 "LSCSF" is "land subject to any inundation caused by coastal storms up to and including that caused by the 100-
year storm, surge of record or storm of record, whichever is greater." 310 CMR 10.04. "Under the Wetlands
Regulations, LSCSF is `likely to be significant to flood control and storm damage prevention."' In the Matter of
Norman Rankow, OADR Docket No. WET-2012-029, Recommended Final Decision (August 6, 2013), 2013 MA
ENV LEXIS 45, at 17, adopted as Final Decision (August 12, 2013), 2013 MA ENV LEXIS 79.
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Coastal Bank as set forth in 310 CMR 10.30(6)?
2. With respect to the proposed Project being located within LSCSF, did the
Department properly determine that the Project will not interfere with the
MWPA interests of flood control and storm damage prevention?
3. Whether the Department properly considered the impact of the proposed
Project on wildlife habitat?4
By agreement of the parties, the Hearing was transcribed by a Registered Professional Reporter
retained by the private parties in the case at their expense.5 At the Hearing, the parties were
represented by legal counsel and presented witnesses and documentary evidence in support of
their respective positions on the issues for resolution in the appeal as set forth above. A total of
seven witnesses, all of whom had previously submitted Pre -Filed Testimony ("PFT") on behalf
of the parties for the Hearing, were made available for cross-examination under oath at the
Hearing. The parties' respective witnesses at the Hearing were as follows.
The Petitioners' witnesses were:
(1) C. Diane Boretos ("Ms. Boretos"), a Professional Wetlands Scientist with
more than 30 years of experience in the wetlands field; and
(2) Paul A. Brogna ("Mr. Brogna"), a Professional Engineer with more than
40 years of civil engineering experience.6
The Applicants' witnesses were:
(1) John Z. Demarest, Jr. ("Mr. Demarest"), a Professional Land Surveyor
4 These issues for resolution were established at Pre -Screening ("Pre -Hearing") Conference that I conducted with the
parties in November 2016. See November 28, 2016 Pre -Screening Conference Report and Order ("Con£ Report &
Order"), at pp. 3-4.
s My references to the Hearing Transcript in this Recommended Final Decision are noted as "HT, Page:Line" e.g.,
HT, 50:12.
6 The Petitioners' third witness, Gordon Peabody ("Mr. Peabody"), the Director of Safe Harbor Environmental, a
habitat restoration consultancy, filed PFT for the Petitioners but failed to appear for cross-examination at the
Hearing as required by the Adjudicatory Proceeding Rules, and, as a result, his PFT was stricken from the record at
the request of the Applicants. HT, 11:14-23; See also Con£ Report & Order, at p. 8 (Adjudicatory Rules mandate
that `[i]f a witness is not available for cross-examination at the hearing, the written testimony of the witness shall be
excluded unless the parties agree otherwise." 310 CMR 1.01(12)(f); 310 CMR 1.01(13)(h)3.)
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with more than 35 years of land surveying experience on Cape Cod;
(2) Lynne Hamlyn ("Ms. Hamlyn"), a Professional Wetlands Scientist with
more than 30 years of experience in the wetlands field;
(3) James O'Connell ("Mr. O'Connell"), a Coastal Geologist for more than 30
years; and
(4) Sean Riley ("Mr. Riley"), a Professional Engineer and Certified
Floodplain Manager with over 21 years of civil engineering experience.
The Department's witness was Gregory DeCesare ("Mr. DeCesare"), a senior
Environmental Analyst in the Wetlands and Waterways Program of the Department's Southeast
Regional Office with nearly 30 years of experience in the environmental field.
As discussed in detail below, based upon the testimonial and documentary evidence that
the Parties presented at the Hearing? and the applicable law, I recommend that the Department's
Commissioner issue a Final Decision affirming the Department's SOC affirming the YCC's
approval of the proposed Project for the following reasons.
First, by failing to present any probative testimony addressing the Performance Standards
for Coastal Bank, the Petitioners waived this issue at the Hearing. Additionally, I find that the
proposed Project meets the Performance Standards for Coastal Bank as set forth in 310 CMR
10.30(6), for the reasons set forth in the unrefuted testimony of the Applicants' and the
Department's respective witnesses on this issue. Based on the same unrefuted testimony, I also
find that the Coastal Bank was properly delineated for the proposed Project.
Second, with respect to the proposed Project being located within LSCSF, I find that the
' With respect to my review of the documentary evidence submitted by the Parties in this appeal, I re -state my denial
of the Applicants' February 3, 2017 Motion to Strike Exhibit 12 of Petitioners' Appendix on relevancy, hearsay, and
authentication grounds. As I noted in my Pre -Screening Report, at pp. 5-6, under G.L. c. 30A, § 11(2) and 310
CMR 1.01(13)(h), while "agencies need not observe the rules of evidence [required] by courts... [t]he weight to be
attached to any evidence in the record will rest within the sound discretion of the Presiding Officer...." I also note
that the Applicants' Motion to Strike was raised at the February 28, 2017 Hearing, and I denied the Motion at that
time. HT, 17:9-22.
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Department properly determined that the Project will not interfere with the MWPA interests of
flood control and storm damage prevention.
Lastly, I also find that the Department properly determined that the Project will not have
a detrimental impact on wildlife habitat.
BACKGROUND
To more fully explain the basis for my findings in this Recommended Final Decision, it is
useful to provide an in-depth description of the Property at issue, with particular emphasis upon
its MWPA resources and the Applicants' proposed Project activities, based upon my review of
undisputed facts as set forth in the evidentiary record.
The Applicants' Property is shown on the Site Plan entitled "Plan of Land in West
Yarmouth, MA 188 Berry Avenue, Prepared for Ali & Elaine Bigdeliazari, Scale: V = 30',"
dated December 21, 2015. Applicants' Appendix, Ex. A, Property Site Plan; Ms. Hamlyn's PFT,
¶ 7.8 As shown on the Site Plan, the entire Property is within LSCSF. Ms. Hamlyn's PFT, ¶ 9.
The LSCSF on the Property is comprised of two 100 Year Flood Zones, as mapped by the
Federal Emergency Management Agency ("FEMA")9 and depicted on the Site Plan: an AE Zone.
(el. I V) and a VE Zone (el. 13'). Applicants' App. Ex. A; Ms. Hamlyn's PFT, ¶ 8; Mr.
s At the Hearing, all of the Parties utilized this Site Plan, which depicts the Property, the proposed Project, and the
MWPA resources, as a basis for their respective positions. In addition, I note that the Petitioners, who had the
burden of proof at the Hearing CSee discussion at pp. 15-17 below), did not present an alternative plan depicting the
MWPA resources on the Property, but rather included the Site Plan as an Exhibit in this proceeding. See
Petitioners' Exhibits, # 14 (December 21, 2015 Plan of Land).
9 FEMA is responsible for furthering the U.S.'s ability to "sustain and improve [the nation's] capability to prepare
for, protect against, respond to, recover from[,] and mitigate all hazards." https://www.fema.gov/about-agency.
"The FEMA Flood Map Service Center (MSC) is the official public source for flood hazard information produced in
support of the National Flood Insurance Program (NFIP)." https://msc.fema.gov/portal. FEMA Flood Zone
Designations "are geographic areas that FEMA has defined according to varying levels of flood risk. These zones
are depicted on a community's Flood Insurance Rate Map (FIRM) or Flood Hazard Boundary Map. Each zone
reflects the severity or type of flooding in the area." hftps:Hsnmapmod.snco.us/f mn/document/fema-flood-zone-
definitions.pdf. "Coastal areas with a 1% or greater chance of flooding and an additional hazard associated with
storm waves" are designated by FEMA as "VE." Id. "These areas have a 26% chance of flooding over the life of a
30-year mortgage" on real property located in such areas. Id.
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O'Connell's PFT, ¶ 42. An AE Zone is designated by FEMA as an area subject to the 1% annual
chance flood with the Base Flood Elevation ("BFE") printed on the Flood Insurance Rate Map.
Mr. O'Connell's PFT, ¶ 43. AE Zones are generally areas of Stillwater flooding,10 where wave
action would be minimal. Id.; Mr. DeCesare's PFT, ¶ 28. However, some AE Zones
immediately landward of Velocity Zones can have narrow Areas of Moderate Wave Action,
defined as having wave heights between 1.5 feet and 3 feet, and/or can have Areas of Minimal
Wave Action, defined as having wave heights of less than 1.5 feet. Mr. O'Connell's PFT, ¶ 43.
As these AE Zones move further landward, the lower wave heights diminish into areas of
stillwater flooding. Id. In contrast to AE Zones, a VE Zone is designated by FEMA as an area
subject to the 1% annual chance flood, with wave effects of 3 feet or greater. Mr. O'Connell's
PFT, ¶ 45.
On the Property, the VE Zone is located seaward of the top of the Coastal Bank, and this
VE Zone is not in the area of the proposed Project. Applicants' App. Ex. A; Mr. O'Connell's
PFT, ¶ 46;11 See also, Mr. DeCesare's PFT, ¶ 28 ("[T]he applicant's proposed construction
project is landward of the high energy Velocity Zone and only within an AE Zone .... "). The
remainder of the Property, including the Project area, is within the AE Zone. Applicants'
10 "Stillwater" is defined by FEMA as "the flood level not including the effects of waves ... or tsunamis, but
including storm surge and astronomic tide." Stillwater: FEMA Coastal Flood Hazard Analysis and Mapping
Guidelines Focused Study Report, February 2005, at p. 1 (can be accessed at https://www.fema.gov/media-library-
data/20130726-1541-20490-33 76/&m_p1 still.pdf).
n Although the Petitioners' witness, Mr. Brogna, testified at the Hearing that "[b]ased on the FEMA maps, the
December 21, 2015 Plan of Land, and [his] own investigation, the Velocity Zone, VE (EL 13) is far above the top of
the actual coastal bank," Mr. Brogna's PFT, 111, he offered no expert analysis or alternative plan depiction
specifying where, how, or to what extent the VE is "far above" the top of the actual Coastal Bank. Due to the
Petitioners' lack of evidentiary support regarding the location of the VE, I find that the Site Plan depiction of the AE
and VE zones on the Property to be un-refined by the Petitioners. See also, discussion of LSCSF issue below at
pp. 19-25.
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App. Ex. A; Mr. O'Connell's PFT, ¶ 47.
In addition, there are two Coastal Banks on the Property and depicted on the Site Plan
which meet the criteria "top of [C]oastal [Blank," as defined by DEP Wetlands Program Policy
92-1 ("DEP Policy 92-1" attached as Exhibit D to Applicants' Appendix). Applicants' App. Ex.
A; Mr. DeCesare's PFT, ¶ 19; Ms. Hamlyn's PFT, ¶ 18; Mr. Riley's PFT, ¶ 14. In accordance
with DEP Policy 92-1: "There can be multiple [C]oastal [Blanks within the same site. This can
occur where the [C]oastal [Blanks are separated by [LSCSF] (an area less than 10:1)." DEP
Policy 92-1 at Applicants' App. Ex. D; Mr. Riley's PFT, ¶ 14. The first, more seaward top of
Coastal Bank on the Property is located at the top of the stone revetment, with a flattened shelf
— less than 10:1— immediately upgradient of it that is LSCSF. Ms. Hamlyn's PFT, ¶ 18; Mr.
O'Connell's PFT, ¶ 23; Mr. Riley's PFT, ¶ 15; Mr. DeCesare's PFT, ¶ 19. The second, more
landward Coastal Bank begins where the slope again rises to a steepness greater than 10% and
ends where that slope flattens to less than 10% inland. Id. This more landward top of Coastal
Bank is delineated on the Site Plan and located approximately parallel to an existing brick patio
along the waterfront side of the Property's existing dwelling. Applicants' App., Ex. A; Ms.
Hamlyn's PFT, ¶ 10.
The Applicants' proposed Project is shown on the Site Plan and includes: (1) a 528
square foot addition extending from the East side of the existing dwelling; (2) a proposed dry
laid patio extending off the new addition to the South; (3) the removal of a 219 square foot
section of the existing dwelling; (4) a proposed 20 foot x 24 foot pool, with attendant 6 foot
stamped concrete apron on the Northeast side of the dwelling; (5) a proposed dry laid patio
connecting the new addition and pool area; (6) a 24 foot x 38 foot proposed garage, with living
area on the second floor; and (7) a 190 square foot addition to include a covered porch,
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connecting the existing dwelling with the proposed garage. Applicants' App., Ex. A; Ms.
Hamlyn's PFT, ¶¶ 7, 11.
The proposed Project will result in a net increase of 1,692 square feet of hardscape
within the 50 foot buffer to the top of Coastal Bank. Applicants' App., Ex. A; Ms. Hamlyn's
PFT, 112. As mitigation for this net increase, the Applicants propose to eliminate 1,692 square
feet of existing managed lawn located seaward of the dwelling and will naturalize the area with
New England Coastal Salt Tolerant Grass Mix, by New England Wetland Plants, Inc., or
equivalent plantings. Ms. Hamlyn's PFT, ¶ 13. A single rail fence will be installed at the upper
edge of this planted area to ensure that the enhanced native buffer remains undisturbed on a
perpetual basis, and the Applicants will monitor the new plantings for a period of three (3) years
to ensure survivability. Id.
STATUTORY AND REGULATORY FRAMEWORK
I. THE PERMITTING REQUIREMENTS OF THE MWPA AND
THE WETLANDS REGULATIONS
The purpose of the MWPA and the Wetlands Regulations is to protect wetlands and to
regulate activities affecting wetlands areas in a manner that promotes the following eight
statutory interests:
(1) protection of public and private water supply;
(2) protection of ground water supply;
(3) flood control;
(4) storm damage prevention;
(5) prevention of pollution;
(6) protection of land containing shellfish;
(7) protection of fisheries; and
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(8) protection of wildlife habitat.
G.L. c. 131, § 40; 310 CMR 10.01(2); In the Matter of Gary Vecchione, OADR Docket No.
WET-2014-008, Recommended Final Decision (August 28, 2014), 2014 MA ENV LEXIS 76, at
6-7, adopted as Final Decision (September 23, 2014), 2014 MA ENV LEXIS 77; In the Matter of
Webster Ventures, LLC, OADR Docket No. WET-2014-016 ("Webster Ventures P'),
Recommended Final Decision (February 27, 2015), 2015 MA ENV LEXIS 14, at 10-11, adopted
as Final Decision (March 26, 2015), 2015 MA ENV LEXIS 10; In the Matter of Elite Home
Builders, LLC, OADR Docket No. WET-2015-010, Recommended Final Decision (November
25, 2015), adopted as Final Decision (December 17, 2015), 22 DEPR 202, 204 (2015); In the
Matter of Sunset City, Inc., OADR Docket No. WET-2016-016, Recommended Final Decision
(March 31, 2017), 2017 MA ENV LEXIS 35, at 9-10, adopted as Final Decision (April 21, 2017,
2017 MA ENV LEXIS 33.
The MWPA and the Wetlands Regulations provide that "[n]o person shall remove, fill,
dredge[,] or alter12 any [wetlands] area subject to protection under [the MWPA and Wetlands
12 The Wetlands Regulations at 310 CMR 10.04 define "alter" as "chang[ing] the condition" of any wetlands area
subject to protection under the MWPA and the Wetlands Regulations. Examples of alterations include, but are not
limited to, the following:
(a) the changing of pre-existing drainage characteristics, flushing characteristics, salinity distribution,
sedimentation patterns, flow patterns and flood retention areas;
(b) the lowering of the water level or water table;
(c) the destruction of vegetation;
(d) the changing of water temperature, biochemical oxygen demand (BOD), and other physical, biological
or chemical characteristics of the receiving water.
310 CMR 10.04. "Dredge" is defined as "deepen[ing], widen[ing], or excavat[ing], either temporarily or
permanently" a protected wetlands area, and "[f]ill means to deposit any material [in a protected wetlands area] so as
to raise an elevation, either temporarily or permanently." Id.
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Regulations] without the required authorization, or cause, suffer or allow such activity ...."
G.L. c. 131 § 40, ¶ 32; 310 CMR 10.02(2)(a); Vecchione, 2014 MA ENV LEXIS 76, at 7;
Webster Ventures I, 2015 MA ENV LEXIS 14, at 11-12; Elite Home Builders, 22 DEPR at 204;
Sunset Citv, 2017 MA ENV LEXIS 35, at 10. "Any activity proposed or undertaken within [a
protected wetlands] area[,] ... which will remove, dredge or alter that area, is subject to
Regulation under [the MWPA and the Wetlands Regulations] and requires the filing of a Notice
of Intent ("NOI")" with the permit issuing authority. 310 CMR 10.02(2)(a). A party must also
file an NOI for "[a]ny activity ... proposed or undertaken within 100 feet of [any protected
wetlands]" described as "the Buffer Zone" by the Regulations, "which, in the judgment of the
[permit] issuing authority, will alter [any protected wetlands]." 310 CMR 10.02(2)(b).
The "[permit] issuing authority" is either the local Conservation Commission when
initially reviewing the applicant's proposed work in a wetlands resource area protected by the
MWPA and the Wetlands Regulations, or the Department when it assumes primary review of the
proposed work or review on appeal from a local Conservation Commission decision. Healer v.
Department of Environmental Protection, 73 Mass. App. Ct. 714, 717-19 (2009). Under the
MWPA, a local Conservation Commission may issue an Order of Conditions authorizing or
precluding proposed activities in protected wetlands areas and "[is] allowed to `impose such
conditions as will contribute to the protection of the interests described [in MWPA and the
Wetlands Regulations]... and to require that "`all work shall be done in accordance' with the
conditions they might impose...." Id.
Orders of Condition, including any findings and wetlands delineations forming the basis
of the Orders, are valid for three years from the date of the Orders' issuance. 310 CMR
10.05(6)(d). However, any "order [by the Department] shall supersede the prior order of the
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conservation commission [issued pursuant to the MWPA and the Wetlands Regulations] ... and
all work shall be done in accordance with the [Department's] order," Id, unless the Commission
has properly denied the proposed project pursuant to a local Wetlands Protection Bylaw that is
more protective than the MWPA. Oyster Creek Preservation, Inc. v. Conservation Commission
of Harwich, 449 Mass. 859, 866 (2007). This is the case because the MWPA "establishes
Statewide minimum wetlands protection standards, [but] local communities are free to impose
more stringent requirements" by enacting local Wetlands Protection Bylaws. Oyster Creek, 449
Mass. at 866; Healer, 73 Mass. App. At 716. As a result, an SOC issued by the Department
under the MWPA approving proposed work in protected wetlands areas cannot preempt a timely
decision of a local Conservation Commission denying approval of the proposed work based "on
provisions of a local bylaw that are more protective than the [MWPA]." Oyster Creek, 449
Mass. at 866. This issue is not present in this case, because both the YCC and the Department
approved the proposed Project pursuant to the MWPA and the Wetlands Regulations.
II. THE PROTECTED WETLAND AREAS OF COASTAL BANK, LSCSF, AND
THE WETLANDS INTEREST OF WILDLIFE HABITAT
A. Coastal Bank
The Wetlands Regulations at 310 CMR 10.30(2) define Coastal Bank 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.
"When a proposed project involves dredging, removing, filling, or altering a coastal bank,
the [permit] issuing authority shall presume that the area is significant to storm damage
prevention and flood control." 310 CMR 10.30(1). "This presumption may be overcome only
upon a clear showing that a coastal bank does not play a role in storm damage prevention or
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flood control, and if the issuing authority makes a written determination to such effect." Id.
The Performance Standards under the Wetlands Regulations for Coastal Bank govern
proposed activities within 100 feet landward of a Coastal Bank determined to be significant to
storm damage prevention or flood control. 310 CMR 10.30(3)-10(8). Different Performance
Standards apply depending on whether the Coastal Bank supplies sediment to Coastal Beaches,
Coastal Dunes, or Barrier Beaches (310 CMR 10.30(3)-10(5)), or acts as a vertical buffer to
storm waters (310 CMR 10.30(6)-10(8)). In this case, since the Coastal Bank serves as a vertical
buffer to storm waters, the relevant Performance Standard is found at 310 CMR 10.30(6), which
requires that any project within 100 feet landward of the top of the Coastal Bank shall have no
adverse effects on the stability of the Coastal Bank. See Mr. DeCesare's PFT, ¶ 20.
B. LSCSF
"LSCSF" is "land subject to any inundation caused by coastal storms up to and including
that caused by the 100-year storm, surge of record or storm of record, whichever is greater." 310
CMR 10.04. "Under the Wetlands Regulations, LSCSF is `likely to be significant to [the
MWPA interests of] flood control and storm damage prevention."' Rankow, 2013 MA ENV
LEXIS 45. "Although there are no Performance Standards in the Wetlands Regulations for
LSCSF, the [wetlands] permit issuing authority may only authorize activities in LSCSF if the
issuing authority determines that the proposed activities will not interfere with the MWPA
interests of flood control and storm damage prevention." Id.
C. The MWPA Interest of Wildlife Habitat
The MWPA defines "wildlife habitat" as "those areas subject to [the MWPA] which, due
to their plant community composition and structure, hydrologic regime or other characteristics,
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provide important food, shelter, migratory or overwintering areas, or breeding areas for wildlife."
310 CMR 10.04 (definition of "wildlife habitat")
II1. THE PERMIT REVIEW PROCESS UNDER THE MWPA AND THE
WETLANDS REGULATIONS
As discussed above, under the wetlands statutory and regulatory scheme, the "[permit]
issuing authority" is either the local Conservation Commission when initially reviewing the
applicant's proposed work in a wetlands resource area protected by the MWPA and the Wetlands
Regulations, or the Department when it assumes primary review of the proposed work or review
on appeal from a local Conservation Commission decision. Healer, 73 Mass. App. Ct. at 717-19.
An appeal to the Department of a local Conservation Commission's Order of Conditions
("OOC") approving or denying a project is made through an SOC request to the Department.
310 CMR 10.05(7)(a)-(7)(d). The SOC request must be made to the Department "in writing and
[must] be sent [to the Department] by certified mail or hand delivered within ten [business] days
of [the OOC's] issuance ...." 310 CMR 10.05(7)(c). The SOC request must "state clearly and
concisely the objections to the [OOC], ... [and] how the [OOC] is inconsistent with [the
Wetlands Regulations] and does not contribute to the protection of the interests identified in [the
MWPA]." Id.
It is well settled that, in the normal instance, when the Department receives an SOC
request, "[t]he Department [conducts] a de novo review of [the proposed] Project [at issue],"
meaning that the review of the Project starts anew, and that the Department makes a
determination independent of any local Conservation Commission determination regarding
whether the Project should be authorized pursuant to the MWPA and the Wetlands Regulations.
In the Matters of Richard Cuda and Town of Orleans Board of Selectmen, OADR Docket Nos.
WET-2015-012 and WET-2016-014 ("Cuda"), Recommended Final Decision (December 13,
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2017), at p. 40, adopted as Final Decision (January 8, 2018), citing, In the Matter of
Chapoaauonsett Realty Trust, OADR Docket No. 1988-222, Order of Dismissal and Grant of
Motion to Intervene (July 19, 1989), 7 MELR 1421, 1426 (1989). Indeed, in issuing the SOC
affirming a local conservation commission's approval of a proposed Project, the Department is
not required by either the MWPA or the Wetlands Regulations "[to] adopt conditions identical to
those adopted by [the] conservation commission." Id.
Likewise, contrary to the Petitioners' assertions in this case, 13an appeal of the
Department's SOC to OADR is also a de novo proceeding, where the Presiding Officer conducts
an evidentiary hearing that includes the presentation of both sworn testimony and documentary
evidence to address the issues that were previously identified for adjudication in the Presiding
Officer's Pre -Screening Conference Report and Order. 310 CMR 10.05(7)0)3-9. Consistent
with the powers enumerated in 310 CMR 1.01(5)(a), Presiding Officers are authorized to
conduct trial -like evidentiary Adjudicatory Hearings which include, among other things, the right
to administer oaths to witnesses, the imposition of limitations upon and the management of the
evidence and the participation of the parties in order to develop an adequate and comprehensive
adjudicatory record, the right to conduct views of the project site, and the right to issue
subpoenas as appropriate. Id. Although the rules of evidence (other than privilege) applicable to
court proceedings do not apply to evidentiary Adjudicatory Hearings See 310 CMR
" See Petitioners' Closing Brief, at pp. 1-2, where the Petitioners erroneously argue that OADR review in this
proceeding is limited to the "administrative record" as previously developed by the Department, through its SOC,
and the YCC through its OOC. Additionally, as recently discussed in Cuda, "[i]t is important to recognize that the
Department's de novo review authority carries over to an administrative appeal of an SOC filed with OADR."
Cuda, at pp. 40-41. "During the pendency of the administrative appeal before OADR, the Department `is [not]
precluded from changing its position [on the SOC because] ... its [primary] obligation [is] to defend the interests of
the [MWPA]."' Cuda, at p. 41, citing, In the Matter of John Soursourian, OADR Docket No. WET-2013-028,
Recommended Final Decision (2014), 2014 MA ENV LEXIS 49, at 34-36, adopted as Final Decision, 2014 MA
ENV LEXIS 47 (2014). "Hence, if during the pendency of an administrative appeal, `[the Department] becomes
convinced' based on a different legal interpretation of applicable regulatory standards, new evidence, or error in its
prior determination, `that the interests of [MWPA] require it to take a different position from one that it had adopted
previously [in issuing the SOC],' the Department is authorized to, and should change its position." Id.
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1.01(13)(h)), at the conclusion of the Hearing, Presiding Officers make findings of fact and
rulings of law on every issue identified for adjudication based upon the parties' testimonial and
documentary evidence, and then issue a Recommended Final Decision based upon a
preponderance of the evidence for consideration by the Department's Commissioner, who is the
Final Decision -Maker in the appeal. Id.; 310 CMR 1.01(14)(a); Soursouri an, 2014 MA ENV
LEXIS 49, at 36 ("The Presiding Officer [responsible for adjudicating the administrative appeal]
is not bound by MassDEP's prior orders or statements [in the case], and instead is responsible . .
. for independently adjudicating [the] appea[l] and [issuing a Recommended Final Decision] to
MassDEP's Commissioner that is consistent with and in the best interest of the [MWPA, the
Wetlands] Regulations, and MassDEP's policies and practices").
IV. THE PETITIONERS' BURDEN OF PROOF
As explained in detail at pp. 4-6 of my November 28, 2016 Pre -Screening Conference
Report and Order ("Conf. Report"), the Petitioners had the burden of proving by a preponderance
of the evidence at the Hearing that the Department erred in issuing the SOC. See 310 CMR
10.03(2); 310 CMR 10.05(7)(j)2.b.iv; 310 CMR 10.05(7)(j)2.b.v; 310 CMR 10.05(7)0)3.a; 310
CMR 10.05(7)0)3.b. The Petitioners were required to "produce [at the Hearing] at least some
credible evidence from a competent source in support of [their] position" that the Department
erred in issuing the SOC. Id. This "credible evidence [was required to come] from a competent
source in support of each claim of factual error [made against the Department], including any
relevant expert report(s), plan(s), or photograph(s)." 310 CMR 10.05(7)(j)3.c. "A `competent
source' is a witness who has sufficient expertise to render testimony on the technical issues on
appeal." In the Matter of City of Pittsfield Airport Commission, OADR Docket No. 2010-041,
Recommended Final Decision (August 11, 2010), 2010 MA ENV LEXIS 89, at 36-37, adopted
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as Final Decision (August 19, 2010), 2010 MA ENV LEXIS 31. Whether the witness has such
expertise depends "[on] whether the witness has sufficient education, training, experience and
familiarity with the subject matter of the testimony." Commonwealth v. Cheromcka, 66 Mass.
App. Ct. 771, 786 (2006) (internal quotations omitted); see e.g. In the Matter of Carulli, Docket
No. 2005-214, Recommended Final Decision (August 10, 2006)(dismissing claims regarding
flood control, wetlands replication, and vernal pools for failure to provide supporting evidence
from competent source), adopted as Final Decision (October 25, 2006); In the Matter of Indian
Summer Trust, Docket No. 2001-142, Recommended Final Decision (May 4, 2004) (insufficient
evidence from competent source showing that interests under MWPA were not protected),
adopted as Final Decision (June 23, 2004); In the Matter of Robert Siegrist, Docket No. 2002-
132, Recommended Final Decision (April 30, 2003) (insufficient evidence from competent
source to show wetlands delineation was incorrect and work was not properly conditioned),
adopted as Final Decision (May 9, 2003); Pittsfield Airport Commission, supra, 2010 MA ENV
LEXIS 89, at 36-39 (petitioner's failure to submit expert testimony in appeal challenging
Department's Commissioner's issuance of 401 Water Quality Certification Variance to Pittsfield
Airport Commission fatal to petitioner's claims in appeal because Variance was "detailed and
technical ... requiring expert testimony on issues ... implicated by the Variance," including ...
(1) wetland replication, restoration, and enhancement, (2) mitigation of environmental impacts to
streams, and (3) stormwater discharge and treatment[,] [and (4)] ... runway safety and design").
As for the relevancy, admissibility, and weight of evidence that the Parties introduced in
the Hearing, this is governed by G.L. c. 30A, § 11(2) and 310 CMR 1.01(13)(h)(1). Under G.L.
c. 30A, § 11(2):
[u]nless otherwise provided by any law, agencies need not observe the rules of
evidence observed by courts, but shall observe the rules of privilege recognized
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by law. Evidence may be admitted and given probative effect only if it is the kind
of evidence on which reasonable persons are accustomed to rely in the conduct of
serious affairs. Agencies may exclude unduly repetitious evidence, whether
offered on direct examination or cross-examination of witnesses.
Under 310, CMR 1.01(13)(h), "[t]he weight to be attached to any evidence in the record will rest
within the sound discretion of the Presiding Officer...."
FINDINGS
I. THE PROPOSED PROJECT MEETS THE PERFORMANCE STANDARDS FOR
COASTAL BANK AS SET FORTH IN 310 CMR 10 30f61.
As noted above at pp. 11-12, the Performance Standard for Coastal Bank that is
applicable to the proposed Project is set forth at 310 CMR 10.30(6), which requires that "[a]ny
project on ... a coastal bank or within 100 feet landward of the top of [a] coastal bank shall have
no adverse effect on the stability of the coastal bank." As an issue identified for adjudication in
this proceeding, See Con£ Rept. & Order, at p. 4, the Petitioners had the burden of proving,
through the presentation of credible evidence by a competent source, as to why the proposed
Project failed to meet this Coastal Bank Performance Standard. The Petitioners, however, failed
to present any probative testimonial or documentary evidence addressing this Coastal Bank
Performance Standard. Asa result, I find pursuant to 310 CMR 10.05(7)0)3b that the Petitioners
waived the issue of whether the proposed Project meets the Performance Standards for Coastal
Bank asset forth in 310 CMR 10.30(6). I also find that the proposed Project complies with the
Performance Standards for Coastal Bank based upon the unrefuted testimony of Applicant's and
the Department's respective witnesses. Ms. Hamlyn's PFT, ¶¶ 24-41 (at pp. 7-9);14 Mr.
14 In Ms. Hamlyn's PFT, IN 24, 25, and 26 are numbered twice; the first set of paragraphs numbered 24, 25, and 26
are set forth on p. 6 of Ms. Hamlyn's PFT and the second set of paragraphs numbered 24, 25, and 26 are set forth on
p. 7 of Ms. Hamlyn's PFT.
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DeCesare's PFT, It 15-26.
In addition, despite the Petitioners' effort to "re -characterize" the Coastal Bank issue into
a challenge as to whether the initial delineation of the Coastal Bank was in accordance with DEP
Policy 92-1 See Petitioners' January 3, 2017 Memorandum of Law, pp. 2-3; Mr. Brogna's PFT,
19), I reject Petitioners' position for following reasons.
First, as the Applicants' witness, Ms. Hamlyn correctly pointed out,15 the Petitioners'
witness, Mr. Brogna, did not support his conclusions challenging the Coastal Bank delineation
for the proposed Project with backup documentation regarding the location of the Coastal Bank
on the Property other than to state in a conclusory fashion that his opinion is "[b]ased upon [his]
on -site measurements and findings ... and [his] subsequent calculations, and following DEP
Policy 92-1...." Mr. Brogna's PFT, ¶ 9. It also appears that Mr. Brogna's opinion for the
Coastal Bank location is based, at least in part, upon prior findings contained in a 1994 SOC for
the Property, which expired, because SOCs (just as OOCs) are only valid for three years from the
date of issuance. Mr. Brogna's PFT, ¶ 9; See also Petitioners' January 3, 2017 Memorandum, at
p. 3 (asserting that the Applicants had the burden to explain why the prior Coastal Bank location
in the 1994 SOC was not the accurate location); Cf. 310 CMR 10.05(6)(d) (Orders of Conditions
are valid for three years from date of issuance).
In contrast to Mr. Brogna's summary opinions on this issue, the Applicants' witness, Ms.
Hamlyn, presented extensive testimony both describing the requirements of DEP Policy 92-1 for
delineating Coastal Banks, and then detailed how she complied with this Policy through her site
investigative work to locate and delineate the Coastal Banks on the Property with the assistance
of the Project's Land Surveyor, Mr. Demerest. Ms. Hamlyn's PFT, ¶¶ 14-22, 26 (at p. 6); See
" See Ms. Hamlyn PFT, ¶¶ 24-25 (at p. 6) ("Mr. Brogna does not indicate how he arrived at [his] conclusion, nor
does he provide any of the data upon which he bases his opinion.... Without that data, or further explanation related
to his methodology, it is not possible to address the methodology he used in forming that opinion.")
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also, Mr. O'Connell PFT, IT 15-25 (refuting Mr. Brogna's conclusory statements and concurring
with Ms. Hamlyn's methodology and conclusions as consistent with DEP Policy 92-1
requirements). The Department's witness, Mr. DeCesare, also testified that the Coastal Banks on
the Property were delineated in accordance with DEP Policy 92-1. Mr. DeCesare's PFT, 119.
In sum, I find, based upon the evidentiary record, that: (1) the Petitioners waived the
issue of whether the proposed Project complies with the Performance Standards for Coastal Bank
as set forth in 310 CMR 10.30(6) by failing to present any probative evidence on the issue;
(2) the Coastal Banks on the Property were properly delineated by the Applicants in accordance
with DEP Policy 92-1; and (3) the proposed Project complies with the Performance Standards for
Coastal Bank as set forth in 310 CMR 10.30(6) based upon the unrefuted testimony of the
Applicants and the Department's respective witnesses.
II. WITH RESPECT TO THE PROPOSED PROJECT BEING LOCATED WITHIN
LSCSF, THE DEPARTMENT PROPERLY DETERMINED THAT THE
PROJECT WILL NOT INTERFERE WITH THE MWPA INTERESTS OF
FLOOD CONTROL AND STORM DAMAGE PREVENTION.
As noted previously, LSCSF is defined at 310 CMR 10.04 as "land subject to any
inundation caused by coastal storms up to and including that caused by the 100-year storm, surge
of record or storm of record, whichever is greater," and is presumed to be significant to the
MWPA interests of flood control and storm damage prevention. At the Hearing, it was
undisputed that the proposed Project would be located within LSCSF but the Petitioners failed to
demonstrate through their witnesses, that the Project will negatively impact LSCSF and interfere
with the MWPA interests of flood control and storm damage prevention. For the reasons
detailed below, I find that: (1) the Petitioners' witness, Mr. Brogna, failed to present any
probative testimony on the LSCSF issue; and (2) in contrast, both the Applicants' and the
Department's respective witnesses amply demonstrated, through both testimony and exhibits,
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that the Department properly determined that the proposed Project's location in LSCSF will not
negatively impact the MWPA interests of flood control and storm damage prevention.
With respect to my review of Mr. Brogna's PFT,16 I note that Mr. Brogna appeared to
address the LSCSF issue in ¶¶ 11 and 13 of his PFT. In ¶ 11, Mr. Brogna initially stated that
"[b]ased upon the FEMA maps, the December 21, 2015 Plan of Land, and [his] own
investigation, the Velocity Zone, VE (EL 13) is far above the top of the actual coastal bank."
Despite the importance of the location of the Velocity Zone to potential flooding and/or storm
damage, Mr. Brogna did not provide any detail regarding how his "own investigation" led him to
conclude that the "VE is far above the top of the ... coastal bank," which was a crucial
foundation for his expert opinion regarding how the proposed Project purportedly impacts the
pertinent LSCSF interests. Notwithstanding this lack of supporting technical analysis, Mr.
Brogna then asserted, in general terms, that due to the Velocity Zone, "wind and wave action are
expected to push water up onto, and across, the locus property, across the areas of proposed
work, and onto the [Petitioners'] property, in a significant and/or 100 year storm." Further in
this same paragraph, Mr. Brogna opined that "[t]he extensive proposed work ... will, more
likely than not, to a reasonable degree of engineering certainty, direct and channel more flood
water onto the [Petitioners'] property," without ever defining how he reached this "reasonable
degree of engineering certainty." Mr. Brogna's general pronouncements of anticipated flooding
of the Petitioners' property as a result of the proposed Project appeared throughout ¶ 11, without
any supporting technical data or analysis (e.g., he stated that "[his] evaluation is that the
extensive proposed work will, more likely than not ... increase the volume and depth of the
16 As noted previously at p. 3, n.6 above, the testimony of Petitioners' other expert, Mr. Peabody, was stricken from
the record due to the fact that he did not appear at the Hearing for cross-examination. Accordingly, despite the fact
that the Petitioners asserted at the Hearing that they met their burden of proof on the LCSCF issue "by the Affidavits
of Paul Brogna and Gordon Peabody," See Petitioners' January 3, 2017 Memorandum at p. 4, I have not reviewed
nor accorded any weight to Mr. Peabody's PFT.
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water being channeled ... onto the [Petitioners'] property" and that "[i]t is more probable than
not that the proposed work will cause an additional 6" or greater depth of water onto the
[Petitioners'] property, for a number of hours, during a significant ... storm").
In ¶ 13 of his PFT, Mr. Brogna stated that there was no information before the YCC and
the Department about the FEMA Base Flood Elevation ("BFE") that he claimed was necessary to
the determination of whether the proposed Project meets the requirements of the State Building
Code and certain FEMA regulations (pertaining to a FEMA designated Regulatory Floodway or
a designated hydraulically restricted area). See Mr. O'Connell's PFT, at 1161, 63). However,
the BFE is clearly depicted on the Site Plan. See Applicants' Appendix, Ex. A; Mr. O'Connell's
PFT, 160. More importantly, and for the reasons asserted by the Applicants in their Closing
Brief, at pp. 12-13, these issues as described in Mr. Brogna's testimony are completely irrelevant
to resolution of the issue of whether the Proposed Project's location in LSCSF will have an
impact upon the MWPA interests of flood control and storm damage prevention. For the same
reason, Mr. Brogna's testimony in ¶ 13 regarding the costs of the Proposed Project (purportedly
in relation to the State Building Code and certain FEMA requirements) is also irrelevant.17
As noted above, pursuant to 310 CMR 1.01(13)(h), "[t]he weight to be attached to any
evidence in the record will rest within the sound discretion of the Presiding Officer...." Due to
the failure of Petitioners' witness, Mr. Brogna, to provide any technical data or analysis to
support his generalized statements regarding the location of the VE Zone and the potential
adverse impacts of the proposed Project due to its location in LSCSF, I accord little or no weight
" I also note that 112 of Mr. Brogna's PFT alleged certain negative impacts of the Applicants' "mechanical, heating
and cooling equipment" in the basement of the pre-existing structure on the Property as detrimental to the MWPA
interest of"pollution prevention" that the Department purportedly failed to address through the SOC. As correctly
stated by the Applicants' witness, Mr. O'Connell, this SOC appeal pertains only to the proposed Project's activities,
not pre-existing structures, and therefore, Mr. Brogna's testimony on this issue is irrelevant as well. See Mr.
O'Connell's PFT, ¶¶ 56-58.
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to Mr. Brogna's testimony, and therefore the Petitioners have failed to sustain their burden of
proof on this issue. In reaching this conclusion, I also credit the testimony of Applicants'
witnesses, Mr. O'Connell and Mr. Riley, rebutting Mr. Brogna on the LSCSF issue on a point -
by -point basis. Mr. Riley's PFT, ¶¶ 17-34; Mr. O'Connell's PFT, ¶¶ 48-49, 53, 59-65.
In stark contrast to Mr. Brogna's vague, generalized testimony, both the Applicants' and
the Department's respective witnesses provided detailed testimony that fully analyzed and
explained why the proposed Project activities in this LSCSF location will not negatively impact
the MWPA interests of flood control and storm damage prevention. As described by the
Applicants' witness, Mr. O'Connell, the LSCSF on this Property consists of two Flood Zones, as
depicted on the Site Plan: an AE Zone (el. I I') and a VE Zone (el. 13'). Mr. O'Connell's PFT,
¶ 42; See Applicants' App. A. Mr. O'Connell testified that AE Zones are designated by FEMA
as areas subject to the I % annual chance flood with the Base Flood Elevation printed on the
Flood Insurance Rate Map and are generally areas of stillwater flooding. Mr. O'Connell's PFT,
143. He also testified that some AE Zones immediately landward ofVelocity Zones (but not all)
can have narrow Areas of Moderate Wave Action, which as discussed above, are defined as
having wave heights between 1.5 feet and 3 feet, and/or can have Areas of Minimal Wave
Action, which as also discussed above, are defined as having wave heights of less than 1.5 feet.
Id. However, as AE Zones move further landward, the lower wave heights diminish into areas of
stillwater flooding. Id.
Mr. O'Connell also testified that, during a 100 year coastal storm event within the AE
Zone, there is primarily stillwater flooding, and movement of flood water is minimal. Mr.
O'Connell's PFT, 144. He further testified that, while AE Zones which are also designated by
FEMA as Areas of Moderate Wave Action or Areas of Minimal Wave Action have the potential
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for moderate and/or minimal wave action, none of the proposed Project area has been designated
as either Areas of Moderate Wave Action or Areas of Minimal Wave Action, thereby indicating
that there will be minimal movement of flood waters in the location of proposed Project
activities. Mr. O'Connell's PFT, ¶¶ 44, 47.18
Based upon the minimal movement of flood waters in the AE Zone, Mr. O'Connell
testified that the existing topographic contours on the Applicants' Property will be maintained
during the proposed Project activities, and any still flood waters that rise during a 100 year storm
event will follow the same path as they currently follow on site. Mr. O'Connell's PFT, ¶ 53. In
addition, Mr. O'Connell noted that the topography on the Property slopes to the west and
southwest, away from the Petitioners' property-- further indicating that impacts from the
proposed Project will be remote. Id.
Lastly, Mr. O'Connell testified that the major source of floodwater during a 100 year
storm event at the Property is the non -restricted, `tidally influenced' water body of Lewis Bay.
Mr. O'Connell's PFT, 154. He testified that, in contrast to inland situations, where development
can displace flood waters onto adjacent properties, construction on the Petitioners' coastal
property, where the flood waters are not so confined, will not increase the flow of flood water
onto either the Applicants' Property, or the Petitioners' property, to any measurable degree. Mr.
O'Connell's PFT, ¶¶ 54-55. For all of these reasons, Mr. O'Connell opined that the proposed
Project at this LSCSF location will not adversely affect the MWPA interests of flood control and
storm damage prevention. Mr. O'Connell's PFT, ¶ 66.
The Department's witness, Mr. DeCesare, concurred with the Applicants' position that the
18 While there is also a VE Zone on the Property, it is undisputed as a result of the unrefated testimony of the
Applicants' and the Department's respective witnesses that the proposed Project is not located in this Zone, and
therefore the VE Zone is not pertinent to the LSCSF analysis. See Mr. O'Connell's PFT, ¶¶ 45-46; Mr.
DeCesare's PFT, ¶ 28; Project Description at pp. 5-8 above.
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proposed Project in this LSCSF location will not adversely impact the MWPA interests of flood
control and storm damage prevention for similar reasons. As Mr. DeCesare testified, the
proposed Project is located only within the FEMA AE Zone (and is landward of the high energy
VE Zone), and therefore expected flooding is considered stillwater flooding, with minimal wave
action. Mr. DeCesare's PFT, 128. As a result, during a severe storm, the Property and all other
properties with similar elevations would be inundated equally up to the elevation of the flood
event. Id. Hence, the Petitioners' property (which is at the same or slightly higher elevation)
will experience the same flooding regardless of any proposed Project activities on the
Applicants' Property. Id. Mr. DeCesare also testified that the Department's SOC approving the
proposed Project had been conditioned to ensure that all site grading from the Project does not
increase runoff onto other properties (including, but not limited to, Petitioners' property), to
protect these adjacent properties from flooding or storm damage as a result of Project activities.
Mr. DeCesare's PFT, 129. For these reasons, Mr. DeCesare opined that the proposed Project at
this LSCSF location will not negatively impact the MWPA interests of flood control and storm
damage prevention. Mr. DeCesare's PFT, 130.
On a final note, I have reviewed the Hearing Transcript, particularly with respect to the
Petitioners' cross-examination of the Applicants' and the Department's witnesses on the issue of
LSCSF, as well as the Parties' Closing Briefs. Based upon this review, I find that there is
nothing in the record that undercuts or diminishes the credibility of either the Applicants' or the
Department's witnesses regarding the LSCSF issue, notwithstanding the Petitioners' attempts to
mischaracterize the testimony of these witnesses at the Hearing and in their subsequent Closing
Brief. Therefore, based upon the reasons set forth above, I find that with respect to the LSCSF
issue that: (1) the Petitioners failed to prove that the proposed Project will negatively impact the
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MWPA interests of flood control and storm damage protection; and (2) based upon the testimony
of the Applicants' and the Department's respective witnesses, the Department properly
determined that the proposed Project will not negatively impact these MWPA interests.
III. THE DEPARTMENT PROPERLY DETERMINED THAT THE PROPOSED
PROJECT WILL NOT HAVE A DETRIMENTAL IMPACT ON WILDLIFE
HABITAT.
As noted above at pp. 12-13, the MWPA defines "wildlife habitat" as "those areas subject
to [the MWPA] which, due to their plant community composition and structure, hydrologic
regime or other characteristics, provide important food, shelter, migratory or overwintering
areas, or breeding areas for wildlife." 310 CMR 10.04 (definition of "wildlife habitat"). At the
Hearing, through their witness, Ms. Boretos, the Petitioners asserted that the proposed Project
will negatively impact the MWPA interest of wildlife habitat. In response, Ms. Hamlyn and Mr.
DeCesare testified on behalf of the Applicants and the Department respectively, that the
proposed Project will not negatively impact wildlife habitat. Based upon my review of the
testimony of these three witnesses, I find that, for the reasons detailed below that: (1) the
Petitioners failed to prove that the proposed Project will have a detrimental impact on wildlife
habitat because their witness, Ms. Boretos, offered no probative testimony on the issue; and
(2) both Ms. Hamlyn and Mr. DeCesare presented ample testimony demonstrating that the
proposed Project activities will not negatively impact, and/or will actually enhance, wildlife
habitat on the Property.
With respect to the Petitioners' claim that the proposed Project will negatively impact
wildlife habitat, Ms. Boretos testified that the seaward portion of the Property provides
significant overwintering roosting habitat for mallards, gulls, and Canada geese, and that she
personally observed scat for all these species along the seaward portion of the Property. Ms.
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Boretos' PFT, ¶ 10. She also testified that the on -site wildlife habitat characteristics are
juxtaposed to adjacent intertidal feeding area and some vegetative cover providing shelter. Ms.
Boretos' PFT, ¶ 11. Ms. Boretos also testified that during high tides, some types of waterfowl
need nearby dry areas to rest, digest food and preen their feathers; however, she did not specify
the relationship between these "nearby dry areas" and the wildlife habitat on the Property. Ms.
Boretos' PFT, ¶ 12. Lastly, Ms. Boretos testified that the SOC failed to protect wildlife habitat
because the proposed Project would alter the overwintering roosting habitat of the birds by
replacing the area with mowed -lawn grass, thereby destroying the roosting habitat. Ms. Boretos
PFT, ¶ 13.
The primary flaw in Ms. Boretos' testimony is that her focus is upon wildlife habitat
found in the seaward area of the Property, where no proposed Project activities are planned by
the Applicants. As noted by the Applicants through their witness, Ms. Hamlyn, all proposed
Project construction activities will take place in the landward portion of the Property, and
therefore the Project will not adversely affect any wildlife habitat that currently exists along the
seaward side. Ms. Hamlyn's PFT, 143. In addition, and as the Applicants correctly pointed out,
Ms. Boretos failed to specify whether any waterfowl actually utilize the Property to "rest, digest
food, and preen their feathers," or use "nearby dry spots" for these activities. See Ms. Hamlyn's
PFT, ¶ 46. In that respect, I agree with the Applicants that Ms. Boretos' testimony is speculative
in nature. Id. I also agree with the Applicants that the proposed Project's addition of 1,692
square feet of naturalized and undisturbed area close to the shoreline will, in all likelihood,
enhance the wildlife habitat interests for birds in this location. Ms. Hamlyn's PFT, ¶¶ 44, 47;
See also Proposed Project description at pp. 5-8 above (creation of naturalized area to mitigate
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for equivalent increase of Project hardscape).
I am also persuaded that the proposed Project will not have a negative impact on wildlife
habitat based on the testimony of the Department's witness, Mr. DeCesare. Mr. DeCesare
testified that the MWPA does not presume either LSCSF or Coastal Banks to be significant to
the protection of wildlife habitat, and the proposed Project does not exceed any threshold that
would trigger the regulatory requirement to perform a wildlife habitat evaluation pursuant to 310
CMR 10.60. Mr. DeCesare's PFT, ¶ 32; See 310 CMR 10.30(1) (Preamble: Coastal Banks are
likely to be significant to storm damage prevention and flood control). Mr. DeCesare also
testified that under the Wetlands Regulations, the mere presence of wildlife in a wetlands
resource area is not enough to establish wildlife habitat value; rather a site's wetlands resource
areas must present specific physical habitat characteristics that are necessary for a certain species
to breed, seek shelter, migrate or overwinter. Mr. DeCesare's PFT, ¶ 33. With respect to the
proposed Project, Mr. DeCesare testified that there must be a "nexus" between the Property's
physical resource area characteristics (i.e., the resource areas of Coastal Bank and LSCSF), and
the significant wildlife habitat values that depend upon the area(s). Mr. DeCesare's PFT, ¶ 34.
Based upon this analysis, Mr. DeCesare concluded that there is no evidence to show that the
proposed Project area will provide important food, shelter, migratory or overwintering, or
breeding areas for these bird species, i.e., the ducks, geese and gulls are not dependent upon
LSCSF or Coastal Bank in this area for important wildlife functions. Mr. DeCesare's PFT, ¶ 36.
In sum, I find that the Department properly determined that the proposed Project will not
have a detrimental impact on wildlife habitat.
CONCLUSION
For the reasons set forth above, I recommend that the Department's Commissioner issue
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a Final Decision affirming the Department's SOC approving the Applicants' proposed Project
because the Department properly determined that: (1) the Project meets the Performance
Standards for work in Coastal Bank asset forth in 310 CMR 1030(6); (2) the Project will not
interfere with the MWPA interests of flood control and storm damage prevention, and as such,
the Project will not be detrimental to LSCSF; and (3) the Project will not be detrimental to
wildlife habitat.
Date: o `�;- (—) '? 1,, Cv 11 ���.
Salvatore M. Giorlandino
Chief Presiding Officer
NOTICE -RECOMMENDED FINAL DECISION
This decision is a Recommended Final Decision of the Chief Presiding Officer. It has
been transmitted to the Commissioner for his Final Decision in this matter. This decision is
therefore not a Final Decision subject to reconsideration under 310 CMR 1.01(14)(d) and/or
14(e), and may not be appealed to Superior Court pursuant to G.L. c. 30A. The Commissioner's
Final Decision is subject to rights of reconsideration and court appeal and will contain a notice to
that effect. Because this matter has now been transmitted to the Commissioner, no party and no
other person directly or indirectly involved in this administrative appeal shall neither (1) file a
motion to renew or reargue this Recommended Final Decision or any part of it, nor
(2) communicate with the Commissioner's office regarding this decision unless the
Commissioner, in his sole discretion, directs otherwise.
In the Matter of Ali and Elaine Bigdeliazari, OADR Docket No. WET-2016-027
Recommended Final Decision
Page 28 of 30
SERVICE LIST
Applicants: Ali and Elaine Bigdeliazari
18 Juniper Way
Medway, MA 02053
e-mail: None listed in the Petitioners' Appeal Notice;
Legal representative: Sarah A. Turano-Flores, Esq.
Jean L. R. Kampas, Esq,
Nutter, McClennen & Fish, LLP
1471 Iyannough Road
P.O. Box 1630
Hyannis, MA 02601
e-mail: sturano-flores@nutter.com
jkampas@nutter.com;
Petitioners: Michael Durkin and Janet Durkin
15 Lewis Bay Boulevard
West Yarmouth, MA 02683;
Legal representative: Douglas A. Robertson, Esq.
Martin, Magnuson, McCarthy,
& Kenney
101 Merrimac Street, 7ch Floor
Boston, MA 02114
e-mail: dobertson@mmmk.com;
The Local Conservation Commission:
Town of Yarmouth Conservation Commission
c/o Kelly Grant, Conservation Administrator
1146 Route 28
Yarmouth, MA 02664
e-mail: kgrant@yarmouth.ma.us;
Legal representative: Michael Kennefick, Esq.
Blatman, Bobrowski, Mead, &
Talerman, LLC
730 Main Street, Suite 2B
Millis, MA 02054
e-mail: michael@bbmatlaw.com;
[continued next page]
In the Matter of Ali and Elaine Bigdeliazari, OADR Docket No. WET-2016-027
Recommended Final Decision
Page 29 of 30
[continued from preceding page]
The Department: Jim Mahala, Section Chief, Wetlands Program
MassDEP/Southeast Regional Office
Bureau of Water Resources
20 Riverside Drive
Lakeville, MA 02347
e-mail: Jim.Mahala@state.ma.us;
Greg DeCesare, Wetlands Analyst
MassDEP/Southeast Regional Office
Bureau of Water Resources
20 Riverside Drive
Lakeville, MA 02347;
e-mail: Gregory.DeCesare@state.ma.us;
Legal Representative: David Bragg, Senior Counsel
MassDEP/Office of General Counsel
One Winter Street
Boston, MA 02108;
e-mail: David.Bragg@state.ma.us;
cc: Shawn Walsh, Chief Regional Counsel
MassDEP/Southeast Regional Office
Office of General Counsel
20 Riverside Drive
Lakeville, MA 02347
e-mail: Shawn.Walsh@state.ma.us;
Leslie DeFilippis, Paralegal
MassDEP/Office of General Counsel
One Winter Street
Boston, MA 02108.
In the Matter of Ali and Elaine Bigdeliazari, OADR Docket No. WET-2016-027
Recommended Final Decision
Page 30 of 30