Opinion
No. 11–P–1973.
2013-03-13
Robin DOWNS v. CONSERVATION COMMISSION OF DENNIS.
By the Court (CYPHER, KANTROWITZ & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case concerns a 2010 decision by the Conservation Commission of Dennis (commission) to deny the plaintiff's application for an order of conditions to construct a recreational boating dock. At issue before us on this review in the nature of certiorari is whether the commission's denial of the dock application was arbitrary and capricious.
The commission's denial of the plaintiff's proposal, as correctly summarized by the Superior Court motion judge, cited “significant adverse impacts to ‘prevention of pollution, water quality [and] erosion and sedimentation control,’ ‘protections of shellfish/wildlife habitat [and] protection of land containing shellfish,’ and recreation.”
In his decision concluding that the commission's decision was not arbitrary or capricious, the judge noted that the plaintiff's expert, while indicating that the locus was “quite unproductive” for shellfish resources, failed to address how the proposed project would effect only a negligible present or future change on the area. The burden is indeed a steep one for the appellant in matters such as these, as the parties themselves note in their respective briefs. A further hurdle is posed by the additional restrictions found in the town's wetlands by-law and the commission's rules and regulations, which are more restrictive than those in the Wetlands Protection Act and its regulations.
The judge also noted the failure to address the issue that the proposed docking and loading facility did not meet the three-foot minimum depth requirement of the regulations. Although we recognize why the judge was concerned about this potentially significant point, as the plaintiff points out, the judge's review should have been confined to the reasons given by the commission for the denial of the application. See Fieldstone Meadows Dev. Corp. v. Conservation Commn. of Andover, 62 Mass.App.Ct. 265, 266 n. 2 (2004). However, we do not view the judge's inclusion of this point as a basis for reversal in light of the entirety of the record and the commission's express reasoning.
Our review of the major points raised concerning shellfish, water quality, and recreation leads us to the conclusion that substantial evidence was presented on these points and that the commission acted in neither an arbitrary nor capricious manner. For example, given the density of the area and the problems of maneuverability, the commission did not transcend its boundaries in ruling that recreational use by boaters would be adversely affected if the dock were to be built.
For these reasons, as well as substantially for those in the brief of the commission, the judgment below is affirmed.
Judgment affirmed.