Wilson v. Com.

• Decision Date: 27 February 1992
• Docket Number: No. 90-P-540,90-P-540
• Citation: 31 Mass.App.Ct. 757,583 N.E.2d 894
• Parties: Joan WILSON et al. 1 v. COMMONWEALTH.
• Court: Appeals Court of Massachusetts

Page 894

583 N.E.2d 894

31 Mass.App.Ct. 757

Joan WILSON et al. ¹ v. COMMONWEALTH.

No. 90-P-540.

Appeals Court of Massachusetts,

Barnstable.

Argued April 18, 1991.

Decided Jan. 9, 1992.

Further Appellate Review

Granted Feb. 27, 1992.

Nicholas B. Soutter, Paul McGovern, with him, for plaintiffs.

Madelyn Morris, Asst. Atty. Gen., for Com.

Before DREBEN, KASS and GREENBERG, JJ.

GREENBERG, Justice.

Owners of oceanfront property in Chatham sued the Commonwealth under negligence and regulatory taking theories to recover for the loss of their homes in the aftermath of a violent storm in 1987. The damage occurred when the ocean washed away the owners' beaches and ultimately undermined the foundations of their houses. In a confused complaint, the plaintiffs articulate a number of theories under which the Commonwealth should be held responsible for the damage to their property. ² The trial judge dismissed the complaint under Mass.R.Civ.P. 12(c), 365 Mass. 756 (1974). We affirm on all counts except the taking claim; as to the taking claim, we reverse and remand for proceedings consistent with this opinion.

1. Facts and procedural history. Our narrative begins in January, 1987, when a major winter storm washed away a section of Nauset Beach, a sandy barrier off the coast of Chatham. The resulting breach, over a mile wide, exposed the previously protected shoreline along Chatham Harbor to the ocean's full force. It soon became clear that the gap in the sandbar spelled catastrophe for certain property owners whose lots lay at the edge of the water. The formerly stable harbor beach began to erode at an alarming rate, reclaiming sand from the beachfront and bringing the ocean ever closer to the houses which bordered the coast.

A group of those coastal property owners consulted with an engineering firm in developing a plan to prevent further erosion of their property. They petitioned the Chatham conservation commission (commission) in October, 1987, under the Wetlands Protection Act, G.L. c. 131, § 40, for permission to build a "stone revetment," a kind of sea wall, to protect their homes. After a hearing in November, the commission denied the owners' request but allowed them to construct a temporary beach barrier using sand-filled plastic tubes.

In December, 1987, the owners filed an action in the Superior Court seeking to enjoin the commission, the Department of Environmental Quality Engineering (DEQE), ³ and the Army Corps of Engineers from interfering with their construction of stone revetments. The court issued a temporary restraining order on December 21, 1987, followed, after a full hearing, by a ninety-day interlocutory order on January 4, 1988. The orders provided relief to a majority of owners by allowing them to retain large stones which they had already placed on the beach pending evaluation of an application to the DEQE, pursuant to G.L. c. 91 App., for a license to build a permanent structure to protect their properties. ⁴ However, the remaining owners, including those involved in the present case, were ordered to remove the stones from their land within forty days and to replace them, if they chose, with the sand tubes mentioned earlier.

The court's differential treatment of the owners resulted from the regulatory classification of their various properties. The Wetlands Protection Act protects various types of shorelands, including "coastal dunes," 310 Code Mass.Regs. § 10.28 (1987), and "coastal banks," 310 Code Mass.Regs. § 10.30 (1987). Each of these formations is presumed to be "significant to storm damage prevention and flood control." 310 Code Mass.Regs. §§ 10.28(1), 10.30(1). ⁵ While this presumption may be rebutted, any "dredging, filling, removing or alteration" of such land (such as the construction of stone revetments) is not permitted if it interferes with the ability of the land structures to perform their flood control functions. Ibid.

The regulations draw a key distinction between the two forms of wetlands. While the prohibition against building coastal dune revetments is absolute, see 310 Code Mass.Regs. § 10.28(4), it does not apply to coastal banks, which are exempted because of their height and stability. Revetments may be raised on this type of land if they are built to protect buildings constructed prior to August 10, 1978, if they are absolutely necessary, and if they minimize any adverse environmental impact. 310 Code Mass.Regs. § 10.30(3). Among the properties at issue, the DEQE found the majority to be coastal bank, and thus eligible for protection so long as they supported buildings erected before 1978. Those lots belonging to the owners who brought the present case were found to rest on coastal dunes, and thus further construction was absolutely prohibited. ⁶ Based on this DEQE determination, the motion judge, in finding it "unlikely that the property owners in the designated 'coastal dune' area would be able to prevail with the placement of a stone revetment," denied them injunctive relief. In its answer, the Commonwealth included a counterclaim for violation of the Wetlands Protection Act. ⁷

Despite this initial defeat, the owners forged ahead with attempts to obtain permission to build the revetment and, in January, 1988, again petitioned the commission. In an "Order of Conditions" dated February 2, 1988, the commission now acquiesced, holding that those properties previously designated as coastal dune were "so wasted by the shock of the Nauset Beach break that they are simply unable now to perform the [flood control] functions described in the [Wetlands Protection Act] Regulations." For regulatory purposes, the commission would now classify the entire affected area as coastal bank and sanction the revetment.

The owners' victory, as it turned out, was short-lived. Two weeks later, on February 17, 1988, the DEQE appealed the commission's decision on its own initiative in accordance with G.L. c. 131, § 40, ⁸ which effectively vacated the order pending the DEQE's own review. The DEQE reversed the commission's order on March 4, 1988, and decided that the owners could not build a sea wall. The DEQE found that the owners' land was coastal dune and reasoned that the dune structures continued to serve a function in both storm damage prevention and flood control. ⁹ One week later, the owners requested an adjudicatory hearing to review the determination of the status of their land as coastal dune, and on April 26, 1988, amended this "appeal" to a hearing officer to include a request for a variance. See 310 Code Mass.Regs. § 10.36 (1987).

Apparently lacking faith in their administrative prospects, the owners continued to prosecute their cause in court. Just prior to issuance of the commission's order of conditions, on February 1, 1988, the owners filed a second suit in the Superior Court in which they alleged that the Commonwealth, in blocking the construction of a revetment, had made a regulatory taking by permitting the sea to encroach upon their land. ¹⁰ The second suit was dismissed on May 25, 1988, under Mass.R.Civ.P. 12(b)(9), 365 Mass. 755 (1974), on the ground that there existed a prior pending action.

The owners' initial suit had, however, stalled pending the outcome of the administrative process. On February 26, 1988, the parties had entered into a stipulation pursuant to which the owners agreed to abide by the final order of the DEQE with respect to preventative measures on their lots.

The owners focused again on the administrative process. On June 14, 1988, the owners and the DEQE set the ground rules for future proceedings in a prehearing conference. The parties agreed to submit to the hearing officer prefiled testimony. See 310 Code Mass.Regs. § 1.01(8)(f) (1986). The owners' testimony was due on August 1, 1988; that of the DEQE was due three weeks later. The parties were also to attempt voluntary discovery, and the owners agreed to file an "environmental notification form" pursuant to the Massachusetts Environmental Policy Act, G.L. c. 30, §§ 61-62H (MEPA). ¹¹

The weeks passed without the owners having filed any testimony. On August 8, 1988, seven days beyond the deadline, the DEQE filed a motion to dismiss for failure to prosecute, failure to conduct voluntary discovery, and failure to file the environmental notification form. In response, the owners attributed their delay to a lack of funds. Announcing that they could now proceed, the owners submitted the overdue testimony. The hearing officer denied the motion to dismiss, but suspended proceedings in the case "pending completion of the MEPA process."

On September 1, 1988, the owners filed an environmental notification form and requested by motion that the DEQE consider their petitions pending the outcome of the MEPA evaluation. Also, in mid-October despite the hearing officer's stay of proceedings, the owners filed a motion to dismiss or to compel discovery in the DEQE proceeding. No action was taken on either of these motions.

The ocean overran the plaintiffs' homes on October 22, 1988. On October 27, the Secretary of Environmental Affairs issued a MEPA certificate for the owners' proposal which required them to obtain an environmental impact report for the project. In January, 1989, the plaintiffs voluntarily dismissed their DEQE petition and on July 31, 1989, filed this lawsuit, their third action against the Commonwealth.

2. The judgment on the pleadings. The judge dismissed the plaintiffs' claims on the pleadings. See Mass.R.Civ.P. 12(c). We must determine whether, taking all of the plaintiffs' factual allegations as true, they are legally sufficient to make out a claim. Minaya v. Massachusetts Credit Union Share Ins. Corp., 392 Mass. 904, 905, 467 N.E.2d 874 (1984). The effect of a motion for judgment on the pleadings is to challenge the legal sufficiency of the complaint. Burlington v. District Attorney for the N. Dist., 381 Mass. 717, 717-718, 412 N.E.2d 331 (1980). See also Liberty...