COMMONWEALTH OF MASSACHUSETTS


DIVISION OF ADMINISTRATIVE LAW APPEALS



In the Matter of:


Harbor Access Group

Docket No. DEP-07-671
Waterways Determination of Applicability


25 Dock Square
Rockport

RECOMMENDED FINAL DECISION

In a determination of applicability, the Department of Environmental Protection declared that a granite seawall and a concrete walkway on land owned by Stone-Ashe Realty Trust lie seaward of the historic high water mark. After a hearing, I find that the structures are landward of the historic high water mark. Consequently, I order DEP to issue a final determination that the seawall and walkway lie landward of the historic high water and are, thus, not subject to 310 CMR 9.35(3)(A)(2)b, which requires public access over filled tidelands.

BACKGROUND AND PROCEDURAL HISTORY

Sixteen Rockport residents, calling themselves the Harbor Access Group, requested the Department of Environmental Protection to determine whether its Waterways Regulations, 310 CMR 9.00, apply to a granite seawall and a concrete walkway adjacent to Rockport Harbor on land owned by Stone-Ashe Realty Trust.

On May 24, 2007, DEP determined that the seawall and walkway are seaward of the historic high water mark and are therefore subject to the Waterways Regulations. The Trust appealed, arguing that the structures are landward of the historic high water mark.

On March 11, 2008, I conducted a prehearing conference at which the parties (DEP, the Harbor Access Group, and Stone-Ashe Realty Trust) agreed on a hearing schedule. Prior to the hearing, all the parties filed their witnesses' direct testimony with exhibits attached. Additionally, the Trust filed written rebuttal testimony to which it attached additional exhibits.

On June 9, 2008, I conducted a hearing. The witnesses appeared, adopted their written testimony, and were available for cross-examination.

The Trust presented three witnesses: Erich R. Gundlach, who holds a Ph.D. in geology and is a coastal geologist experienced in identifying and mapping coastal features; Richard Loud, who holds a bachelor's degree in geology and is a professional land surveyor; and Wendy Stone-Ashe, who is the trustee of Stone-Ashe Realty Trust. The other parties cross-examined Gundlach but not the Trust's other witnesses.

The Harbor Access Group presented Sean Ewald, who holds a bachelor's degree in civil engineering and is a professional land surveyor. DEP presented Alex Strysky, who holds a bachelor's of science degree in biology and has made or participated in 30 determinations concerning the applicability of the Waterways Regulations to coastal sites, including the one under review here. The Trust cross-examined both of these witnesses.

During the hearing, which I recorded on two cassette tapes, I took one exhibit into the record, a copy of a 1999 deed transferring ownership of the site to Stone-Ashe Realty Trust.

DISCUSSION


The issue in this proceeding is: where is the historic high water mark on the Trust's property?
DEP's Waterways Regulations define historic high water mark as:
the high water mark which existed prior to human
alteration of the shoreline…. In areas where there is
evidence of such alteration by fill, the…. historic
high water mark is the farthest landward former
shoreline which can be ascertained with reference to
topographic or hydrographic surveys, previous license
plans, and other historic maps or charts, which may be
supplemented as appropriate by soil logs, photographs,
and other documents, written records, or information
sources of the type on which reasonable persons are
accustomed to rely in the conduct of serious business affairs.

310 CMR 9.02.

The parties disputed many facts that are not germane to the outcome of this proceeding. These nine significant facts are not contested.

1. Stone-Ashe Realty Trust owns land at 25 Dock Square in Rockport that includes sand flats adjacent to Rockport Harbor.

2. A granite seawall lies landward of the flats: it runs the roughly 108-foot length of the Trust's shoreline property.

3. The seawall is topped by a concrete walkway that measures ten feet wide from the seawall's face landward.

4. The Harbor Access Group provided DEP with a plan dated November 9, 2006 produced by the BSC Group showing the historic high water mark landward of the seawall and walkway. Based primarily on this plan, DEP determined that the seawall and walkway are seaward of the historic high water mark.

5. A four to five foot tall granite retaining wall extends along a portion of the landward edge of the concrete walkway.

6. Landward of the walkway and retaining wall are uplands that include the site of a single-family house.

7. In 1813, Ebeneezer Poole conveyed a parcel of "land or flats" to the Sandy Bay Piers Company. Poole retained the land "which I have heretofor enclosed and also running forty feet from each corner of my seawall, as it now stands and being about one hundred and six feet by the seashore." (deed, exhibit 2 to Gundlach direct testimony).

8. In 1819, a surveyor produced a plan for Sandy Bay Piers Company. Landward, it depicts the Company's property separated by the parcel that Poole retained. It shows two proposed piers extending into an area of water marked "bason" and the high water mark. It does not show the seawall described in the 1813 deed.

9. In 1832, the Company petitioned the legislature for permission to place two piers at the same locations where they appear on the 1819 plan.
While the record contains many plans, charts, and photographs, the 1819 plan is pivotal. The parties agree that it is generally reliable. They disagree about when the wharves depicted on the plan were built and on why the seawall is not shown.

THE TRUST'S EVIDENCE AND ARGUMENT

The Trust's principal witness, Dr. Gundlach, a coastal geologist with more than thirty years' experience identifying shorelines and interpreting maps, testified that the existing seawall is the same seawall mentioned by Ebenezer Poole in the 1813 deed.


Dr. Gundlach reviewed the historic maps and documents, and visited the site. He measured the current seawall as 108 feet long. He noted that it is nearly identical in length to the 106 foot length of the seawall described in the 1813 deed. Additionally, he observed that the entire seawall is composed of granite blocks of roughly the same size. He explained that this uniformity indicates that the wall was constructed at one time, rather than over a period of years or decades. Dr. Gundlach also observed the four to five foot tall granite retaining wall that extends along a portion of the landward edge of the concrete walkway (finding #5). He saw that the entire retaining wall is composed of granite blocks of roughly the same size and that these blocks were different in size and shape than those that make up the seawall. He concluded that the retaining wall, like the seawall, was built at one time, but much later than the seawall.

Dr Gundlach addressed the absence of the seawall on the 1819 plan (finding #9). He testified that the 1819 map is a plan representing proposed construction in the harbor. He added that although the seawall existed in 1819, it is not shown because it is landward of high water, and is therefore not pertinent to the plans for construction in the harbor.

He testified that when the seawall was built (sometime before the 1813 deed), seawalls were placed at the high water mark because they were not designed to withstand wave action. This testimony was not contradicted. Based on his review of the historic maps and documents, his observations at the site, and his specialized knowledge, Dr Grundlach concluded that the seaward face of the existing seawall coincides with the historic high water mark and, consequently, the historic high water mark adopted by DEP is approximately ten feet too far landward.

HARBOR ACCESS GROUP'S EVIDENCE AND ARGUMENT

Sean Ewald was Harbor Access Group's sole witness. He testified that he prepared the plan that his employer, BSC Group, provided to the Harbor Access Group, and is the basis of the DEP's determination that the historic high water mark lies landward of the seawall and walkway. (finding #4). He added that he became a professional land surveyor only after preparing the plan for the Harbor Access Group, and therefore did the work under the supervision of a professional land surveyor, who stamped and signed it. Thus, the professional responsible for the work did not testify. This leaves Ewald vouching for the quality of work he did before he became a professional land surveyor. Although this reduces the weight I ascribe to Ewald's testimony, it does not render the testimony incompetent.
Ewald testified that he selected points on the wharves depicted in the 1819 plan which are readily identified on the site today. He calculated the distances between these points and the high water mark shown on the 1819 plan. Then he located the points on the existing wharves. He projected a line from these points toward the Trust's property. He concluded that a line of the same length as the line from the wharves to the high water mark on the 1819 plan extended ten feet past the seawall. He placed the historic high water mark on his plan based on this calculation.

Ewald's reliance on points depicted on the 1819 plan is misplaced. The plan represented wharves the Sandy Bay Piers Company was proposing to build, not structures that existed in 1819 (finding #8 and #9). This creates doubt about Ewald's approach.

In turn, Ewald's approach brings the accuracy of the Group's plan into question. The Group asserts that the historic high water mark is ten feet landward of the seawall, while the Trust claims that the historic high water mark is at the base of the seawall. Thus, there is little room for error. Because the Group's evidence lacks precision, it is not the kind of evidence that reasonable people are accustomed to rely on in the conduct of serious business affairs. See 310 CMR 9.02.

In contrast, the testimony of Dr. Gundlach, presented by the Trust, meets the reliability test. Dr. Gundlach is an expert in coastal geology. He stated his opinion that the existing seawall was built in an era when seawalls were built at high water and offered a reasonable factual basis for his opinion.
In its written closing argument, the Harbor Access Group, perhaps recognizing the weakness in its case, focused on ownership of the Trust's property through the centuries. It attempted to show that the 106 foot seawall Poole references in the 1813 deed is not the same seawall that is located on the Trust's land. This argument is out of place because the Harbor Access Group did not present testimony on it. The two lawyers representing the Harbor Access Group may be experts in interpreting historical documents. They, however, did not testify on this subject. Their closing argument is not evidence and I do not treat it as such. While all of the documents referred to in the closing are in the record, these documents are not self explanatory and require expert interpretation.

Accordingly, I do not consider the Group's argument concerning historic ownership of the Trust's land.


DEP'S EVIDENCE AND ARGUMENT

Alex Strysky was DEP's sole witness. He has a bachelor's degree in biology and in the course of his employment has gained experience reviewing maps and plans. He visited the site and reviewed the plan submitted by the Harbor Access Group as well as some of the historical documents. He found the group's plan to be reliable. On cross-examination, however, he appeared confused about benchmarks and distances.


HOLDING AND ORDER


The seawall was built before 1813 at the high water mark. Accordingly, the determination of applicability placing the historic high water mark landward of the concrete walkway is erroneous.

I order DEP to issue a final determination consistent with this decision.
Additionally, I order the Trust to comply with any reasonable request from DEP for a surveyed plan of its land to accompany the final determination of applicability.


/s/ August 12, 2009
Francis X. Nee
Administrative Magistrate




NOTICE


This is a recommended final decision. This office has transmitted it to the Commissioner of the Department of Environmental Protection for her final decision. It is not subject to reconsideration at the Division of Administrative Law Appeals, and may not be appealed to the Superior Court pursuant to G.L. c. 30A. The Commissioner's final decision is subject to these rights and will contain a notice to that effect. Because this matter has now been transmitted to the Commissioner, no party shall file a motion to renew or reargue this recommended final decision or any portion of it and no party shall communicate with the Commissioner's office regarding this decision unless the Commissioner, in her sole discretion, directs otherwise.