Geoffroy v. Conservation Comm'n of Falmouth, 13–P–151.

Decision Date20 December 2013
Docket NumberNo. 13–P–151.,13–P–151.
Citation999 N.E.2d 503 (Table),84 Mass.App.Ct. 1126
PartiesLinda GEOFFROY v. CONSERVATION COMMISSION OF FALMOUTH.
CourtAppeals Court of Massachusetts

84 Mass.App.Ct. 1126
999 N.E.2d 503 (Table)

Linda GEOFFROY
v.
CONSERVATION COMMISSION OF FALMOUTH.

No. 13–P–151.

Appeals Court of Massachusetts.

December 20, 2013.


MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Linda Geoffroy appeals from an enforcement order of the conservation commission of Falmouth (the commission), requiring her to correct unauthorized alterations to the coastal dune that previously existed on the southeastern corner of her property. The order issued after the commission found that she altered a coastal dune in violation of the Wetlands Protection Act, G.L. c. 131, § 40 (the act); and the Falmouth wetlands regulations (FWR).

The commission argues that its decision must be affirmed unless it is arbitrary or capricious. Garrity v. Conservation Commn. of Hingham, 462 Mass. 779, 791–792 (2012). Geoffroy, on the other hand, argues that the decision must be supported by substantial evidence. New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 466–467 (1981). We need not decide this issue because, even under the somewhat more stringent substantial evidence test, the decision is adequately supported. There was evidence in the record including aerial photographs from 1986, 1991, and 1998, as well as a plan submitted by Geoffroy herself in 1992 when she sought permission to rebuild a retaining wall on her property, that indicated the presence of a coastal dune in the southeastern corner of the property. Geoffroy argues that because the evidence showed that the sand on the relevant portion of her property was only between three inches and one foot deep, it was an error of law for the commission to determine that a coastal dune ever was present. “Coastal dune” is defined in the Massachusetts regulations as “any natural hill, mound or ridge of sediment landward of a coastal beach deposited by wind action or storm overwash.” See 310 Code Mass. Regs. § 10.28(2) (1997). Section 10.28(2)(a) of the FWR is in accord. However, the act, the Massachusetts regulations, and the FWR contain no height requirement for coastal dunes. In any event, it is not the commission's position that a pile of sand three inches high is a dune. Rather, it is...

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