Hickey v. Conservation Commission of Dennis

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17-P-1292 Appeals Court

BRIAN S. HICKEY & another 1 vs. CONSERVATION COMMISSION OF
DENNIS & others. 2

No. 17-P-1292.

Barnstable. May 3, 2018. - July 27, 2018.

Present: Milkey, Hanlon, & Singh, JJ.

Practice, Civil, Action in nature of certiorari,
Standing. Municipal Corporations, Conservation
commission. Wetlands Protection Act. Way, Wetlands
Protection Act.

Civil action commenced in the Superior Court Department on
April 21, 2016.

The case was heard by Gary A. Nickerson, J., on a motion
for judgment on the pleadings.

Margaret P. Stolfa for the plaintiffs.
Justin Perrotta for Pathways Association, Inc.

MILKEY, J. On March 3, 2016, the conservation commission

of Dennis (commission) issued an approval pursuant to the local

1 Mary P. Hickey.

2 Town of Dennis and Pathways Association, Inc.
2

wetlands by-law (by-law) for a walkway and stairs (walkway)

proposed by Pathways Association, Inc. (Pathways). The walkway

is designed to allow certain inland owners to use their

easements to access Cape Cod Bay. Brian and Mary Hickey (the

Hickeys), who own property that abuts the site of the proposed

walkway, brought an action in the nature of certiorari

challenging the commission's approval. See G. L. c. 249, § 4.

On the Hickeys' motion for judgment on the pleadings, a Superior

Court judge ruled that they lacked standing to maintain this

action, and judgment entered affirming the commission's

decision. We affirm.

Background. This case involves a twenty-foot wide access

way (Hickey Way) that runs from Shore Drive to Cape Cod Bay in

Dennis. Hickey Way was the subject of earlier litigation.

See Hickey v. Pathways Assn., Inc., 472 Mass. 735 (2015) (Hickey

I). Together with the couple that owned the property on the

other side of Hickey Way, the Hickeys brought a Land Court

action seeking to establish that each couple owned to the center

line of the way, and that various owners of nearby inland lots

had no rights to use it. Id. at 738. The Hickeys named

Pathways -- the incorporated association representing the inland

owners in their quest to use Hickey Way -- as the lead defendant

in that action. The Supreme Judicial Court eventually ruled in

favor of Pathways and the inland owners. Id. at 738-739. The
3

court specifically held that the underlying fee interest in

Hickey Way was not held by the Hickeys and their coplaintiffs,

but instead had been retained by the original developers of the

tract that included all of the respective properties (thereafter

devolving to the original developers' heirs). Id. at 743. The

court also held that the inland owners hold easements in Hickey

Way allowing them to use it for access. Ibid.

The area through which Hickey Way runs includes a steep,

armored coastal bank that lies parallel to the water. Because

of this topography, the inland owners cannot make use of their

access rights in Hickey Way unless some version of the walkway

is built there. 3 On the heels of its victory in Hickey I,

Pathways sought to build such a structure over Hickey Way, and

it filed a permit application -- known as a notice of intent --

to do so. On their own, and through their counsel and wetlands

consultant, the Hickeys submitted comments in opposition to the

proposal. In particular, the Hickeys opposed the width of the

proposed walkway and the fact that the proposal included

landings (measuring eight by ten feet each), on which people

could congregate or store items. The Hickeys were concerned

that people congregating in the landing areas would disrupt

3 The Hickeys and other shoreland owners have similar
structures on their own properties, and there used to be a
similar structure on Hickey Way (before it was taken down after
it apparently had fallen into disrepair).
4

their enjoyment of their nearby home. They were also concerned

that people who used the walkway to reach the intertidal beach

area at the bottom of the stairs inevitably would stray onto

their portion of the beach and use it for general beach

purposes. 4

The commission unanimously approved the project by issuing

an order of conditions pursuant to both G. L. c. 131, § 40 (the

Wetlands Protection Act), and the by-law. The Hickeys filed the

current certiorari action challenging the approval issued under

the by-law, and they simultaneously filed an administrative

appeal with the Department of Environmental Protection (DEP)

pursuant to the Wetlands Protection Act. In the latter appeal,

the DEP issued a superseding order of conditions that approved a

somewhat smaller version of the walkway. Unsatisfied with this

partial victory, the Hickeys filed a further administrative

appeal at the DEP. However, before that appeal was heard, the

DEP stayed the matter until resolution of the Hickeys'

certiorari action (then pending in the Superior Court, now

before us). 5 After the commission assembled the record that had

4 The ownership of the tidal flats in front of the Hickeys'
home and the scope of the inland owners' rights to use that area
are addressed in a separate appeal decided today. See Loiselle
v. Hickey, 93 Mass. App. Ct. (2018).

5 If the superseding order of conditions issued by the DEP
stands, Pathways will not be able to build the specific project
that it originally had proposed. Prior to oral argument, we
5

been before it, the Hickeys filed a motion for judgment on the

pleadings, to which Pathways filed an opposition. Without

addressing the underlying merits, the judge ruled that the

Hickeys lacked standing to maintain this action.

Discussion. To demonstrate standing to bring a certiorari

action to challenge the wetlands approval issued by the

commission, the Hickeys must "make[] a requisite showing of a

reasonable likelihood that [they have] suffered injury to a

protected legal right." Higby/Fulton Vineyard, LLC v. Board of

Health of Tisbury, 70 Mass. App. Ct. 848, 850 (2007). Unlike in

the zoning context, the Hickeys do not enjoy presumptive

standing based on their status as abutters. Ibid.

When their standing was challenged, the Hickeys did not

submit affidavits seeking to establish how they would be

adversely affected by the proposed walkway. 6 Instead, they

relied on the comments that they, their attorney, and their

issued an order directing the parties to be prepared to address
whether the issuance of the superseding order of conditions
rendered the current appeal moot. The Hickeys acknowledged that
the DEP still could approve the walkway project as originally
proposed once the stay of the further administrative appeal is
dissolved. Both parties agree that the appeal before us is not
moot.

6 The Hickeys did submit with their motion for judgment on
the pleadings an affidavit from their wetlands consultant (a
copy of which we obtained on our own initiative from the
Superior Court). However, that affidavit did not purport to
establish how they would be harmed by the proposed walkway.
6

wetlands consultant had submitted to the commission as part of

the administrative process. As the judge accurately pointed

out, "the heart of the [Hickeys'] opposition to the proposed

[walkway] is their fear that it will increase recreational

activity within the private way, potentially spilling over onto

the [Hickeys'] private property, which the [Hickeys] find

offensive or injurious." These concerns do not fall within the

wetlands-related interests protected by the by-law, and

therefore cannot form the basis of standing to challenge a

decision made under it. See Enos v. Secretary of Envtl.

Affairs, 432 Mass. 132, 135 (2000), quoting from Massachusetts

Assn. of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of

Ins., 373 Mass. 290, 293 (1977) (to establish standing to

challenge governmental action, alleged injury must fall "within

the area of concern of the statute or regulatory scheme").

To the extent that the Hickeys' comments addressed wetlands

issues at all, they essentially argued that Pathways had not met

its burden of proof with regard to such issues, rather than

trying to demonstrate affirmatively what specific harms the

walkway would cause. We agree with the judge that the Hickeys'

factual assertions about such harm were raised "in a conclusory

fashion, and [were unsupported by] expert evidence, technical

analysis, or particular facts in the record that establish [the
7

purported risks]." 7 On this record, we conclude that the Hickeys

have not "put forward evidence to show actual, substantial

injury" to the interests protected by the by-law, and their

claims are of a "speculative nature" insufficient to support

standing. Higby/Fulton Vineyard, LLC, 70 Mass. App. Ct. at 851-

852.

The Hickeys additionally argue that they have automatic

standing based on the uncontested fact they too hold an access

easement in Hickey Way. 8 Specifically, the Hickeys argue that

because Pathways's "standing" to seek approval to build the

walkway rests on its representing those who own an access

easement in Hickey Way, 9 it necessarily must follow that their

7
The Hickeys assert that the project will have negative
visual consequences for them, and that protection of aesthetic
interests falls within the scope of the by-law. Assuming
arguendo that aesthetic interests could supply standing to
challenge approvals issued under the by-law, the Hickeys have
not demonstrated such harms beyond "unsubstantiated claims and
personal opinions." Kenner v. Zoning Bd. of Appeals of Chatham,
459 Mass. 115, 121 (2011) (upholding finding that plaintiffs had
not demonstrated standing based on impaired visual interests
even though relevant zoning by-law protected aesthetic interests
and plaintiffs, as abutters, enjoyed presumptive standing).

8
In Hickey I, the court observed that the original deed out
to the Hickeys' predecessor in title "explicitly conveyed" an
easement in Hickey Way. 472 Mass. at 753.

9
Pathways made some efforts to demonstrate that a
particular individual who may be a coowner of the fee interest
in Hickey Way (as an heir to the original developers who had
retained that interest) had granted the inland owners permission
to build the proposed walkway. However, the identity of the
heirs to the original developers has never been adjudicated, and
8

own interest in the way provides them standing to challenge the

commission's approval of Pathways's proposal. Any superficial

appeal of such an "equivalency" argument vanishes under

scrutiny.

As the incorporated association representing inland owners

who hold easements allowing them to use Hickey Way for access,

Pathways is a proper party to seek approval to build a walkway

in order that such access rights can be used. See Hickey I, 472

Mass. at 741 (observing that Land Court judgment that in

pertinent part was being affirmed "explicitly permitted [the

inland owners] whom [the judge] concluded had access rights over

[Hickey Way] to repair or rebuild the [walkway structure that

had been there] and to make use of [Hickey Way]"). The Hickeys'

own access easement in Hickey Way may provide them a basis for

arguing -- in a proper forum -- that the inland owners' use of

Hickey Way will overburden or otherwise interfere with their own

right to use Hickey Way. See id. at 753 (recognizing that

Hickeys, "as easement holders, have an interest in preventing

use of the way by those without rights of access"). 10 It does

for purposes of this appeal, we assume that Pathways's claim to
being a proper party to propose the walkway does not depend on
its having acquired permission from the owner of the underlying
fee in Hickey Way.

10In fact, in separate Land Court litigation that is
currently stayed, the Hickeys are seeking to limit the inland
9

not, however, provide the Hickeys a basis for arguing that the

commission's approval of the project pursuant to the by-law will

cause them harm of the type that the by-law was intended to

protect. Cf. Picard v. Zoning Bd. of Appeals of Westminster,

474 Mass. 570, 574-575 (2016) (plaintiff who held easement in

site of proposed development lacked standing to bring zoning

challenge).

In sum, we agree with the judge that the Hickeys failed to

demonstrate their standing to bring this action in the nature of

certiorari, and we therefore affirm the judgment.

So ordered.

owners' use of Hickey Way. Hickey vs. Pathways Association,
Inc., Land Court No. 16 MISC 000123.