Fafard v. Conservation Commission of Barnstable
432 Mass. 194 (2000)
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Rule of Law:
A municipality, without express legislative delegation, cannot administer or enforce public trust rights over tidelands; however, it may impose additional, more stringent local permitting requirements for structures on tidelands under its general wetlands protection powers, so long as these do not conflict with or are not preempted by state law.
Facts:
- Barnstable enacted a wetlands protection bylaw to regulate work in and around wetlands more strictly than the State’s Wetlands Protection Act and purported to protect 'public trust rights in trustlands.'
- The wetlands bylaw vested in the Conservation Commission the authority to issue and deny permits for activities affecting wetlands resources, leading the commission to adopt pier regulations.
- The pier regulations specified that piers may not extend more than twenty percent of the width of a waterway and must not interfere with various water-related activities.
- Madlyn and Howard Fafard (Fafards) owned property on the Eel River, a narrow coastal tidal inlet, which they used as a seasonal residence.
- In May 1997, Howard Fafard filed a notice of intent with the commission seeking permission to construct a fixed pier, ramp, and floats.
- The proposed pier would extend forty-two feet into an area of the river 161 feet wide, thus exceeding the twenty percent width limit and standing on 'Commonwealth tidelands.'
- The Fafards also proposed to keep their fifty-five-foot twin-screw power boat at the pier, which would extend another sixteen feet beyond the pier.
- The commission held two public hearings and, on September 16, 1997, denied the Fafards’ application 'in the interest of recreation and public trust rights,' finding it did not conform with regulations and would interfere with existing moorings and recreation.
Procedural Posture:
- The Barnstable Conservation Commission denied the Fafards’ application for permission to build a fixed pier on the Eel River, grounding its decision on town bylaws and pier regulations.
- The Fafards sought review in the nature of certiorari in the Superior Court, moving for judgment on the pleadings.
- The Superior Court judge denied the Fafards’ motion for judgment on the pleadings and affirmed the decision of the commission.
- The Fafards (appellants) filed an application for direct appellate review, which was granted by the Supreme Judicial Court of Massachusetts.
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Issue:
Does a municipal conservation commission have the authority to deny permission to build a pier on Commonwealth tidelands based on local bylaws that claim to enforce public trust rights, or are such bylaws, when imposing more stringent requirements than state law, preempted by state tidelands licensing statutes (G. L. c. 91)?
Opinions:
Majority - Abrams, J.
No, a municipal conservation commission does not have the authority to deny permission to build a pier on Commonwealth tidelands based on local bylaws that claim to enforce public trust rights, because only the Commonwealth or its express designee may act to further public trust rights. However, no, such bylaws and pier regulations that impose additional, more stringent permitting requirements are not preempted by state tidelands licensing laws (G. L. c. 91) if they protect valid municipal interests like recreation. The public trust doctrine, which holds that sovereigns hold shorelands in trust for public use (e.g., navigation, fishing, fowling), derives from the historical passage of trusteeship from colonial authorities to the Commonwealth. This authority is inherent in the sovereign, and a municipality may not claim powers to administer public trust rights unless the Legislature has expressly granted such authority. Since Barnstable's bylaw purported to claim such authority without express legislative delegation, those portions of the bylaw are invalid and must be severed. Regarding preemption, municipalities may adopt bylaws that are more stringent than state laws, provided they are not inconsistent with state law. G. L. c. 91, which governs state licensing of structures on coastal lands, sets forth minimum standards for pier construction. Local regulations are not preempted if they do not frustrate the purpose of the state statute. Barnstable's pier regulations require an additional local permit and do not usurp the Department of Environmental Protection's (DEP) authority under G. L. c. 91, §§ 2, 14, and 18. The statute's allowance for local authorities to act in an advisory capacity to the DEP does not imply an intent to preclude local regulation, and legislative intent to preclude local action must be clear. Furthermore, the sections of G. L. c. 91 regulating pier construction are not so comprehensive as to imply field preemption. The DEP's regulations allowing towns to issue permits in lieu of DEP for 'small structures' do not apply here, as Barnstable's bylaw requires an additional permit, and the proposed pier likely exceeds the 'small structure' definition. Finally, even with the public trust authority severed, the commission was authorized to deny the permit under G. L. c. 131, § 40, and the town's wetlands bylaw. This state statute grants local conservation commissions the authority to regulate wetlands, including coastal wetlands and tidelands, to protect values such as recreation. The commission's finding that the Fafards' large proposed pier would have a significant adverse impact on recreation in the Eel River, including interference with an existing mooring, was supported by the record and constituted a legitimate exercise of its authority to protect recreational values.
Analysis:
This case significantly clarifies the distribution of authority over coastal development, drawing a crucial line between inherent sovereign powers and delegated municipal authority. It prevents municipalities from unilaterally invoking the public trust doctrine, a power reserved for the Commonwealth, thereby ensuring a consistent statewide approach to these fundamental public rights. However, the ruling simultaneously affirms that municipalities retain substantial power under their general police and wetlands protection powers to impose more stringent local regulations than state law, provided these regulations serve legitimate local interests (like recreation) and do not conflict with or frustrate state statutory schemes. This maintains a balance, allowing for both centralized protection of core public trust principles and localized environmental and recreational safeguards.
