Elena Hall v. Department of Environmental Protection (Massachusetts DEP Office of Administrative Appeals)

This is a new direct representation case for NELF. In 1991, the Massachusetts Department of Environmental Protection (DEP) adopted a new regulation under Mass. G.L. c. 91 that purported to reverse longstanding common law presumptions about the ownership of shorefront property. Massachusetts property owners own their land above the mean high tide line unencumbered by the public trust rights of passage for fishing and fowling. Massachusetts cases have long held that, while erosion accrues to the benefit of the public, accretion (slow and gradual addition of upland at the mean high tide line) accrues to the benefit of the shorefront property owner, even if the accretion is partially caused by artificial shoreline changes (for example, a neighbor’s jetty), so long as the accretion process itself is not artificially enhanced by the actual property owner. See Lorusso v. Acapesket Improvement Assn., 408 Mass. 772, 780 (1990); Michaelson v. Silver Beach Improvement Assn., 342 Mass. 251, 254 (1961); Burke v. Commonwealth, 283 Mass. 63, 68 (1933); Adams v. Frothingham, 3 Mass. 352, 363 (1807). In contrast, when the shoreline is changed suddenly in a major storm or through non-permitted artificial filling the original boundary remains intact. Id. Because the most common means of shoreline increase is accretion and because it is so difficult to observe and prove slow, imperceptible, gradual growth, courts have adopted a presumption that a shoreline increase is due to accretion unless proved otherwise. See, e.g., Schulz v. City of Dania, 156 So. 2d 520, 521 (Fla. App. 1963); Kitteridge v. Ritter, 172 Iowa 55, 151 N.W. 1097, 1098 (1915); Murray v. State, 226 Kan. 26, 39, 596 P.2d 805, 815 (1979); Babson v. Tainter, 79 Me. 368, 10 A. 63, 66 (1887). In direct opposition to this historic presumption, the 1990 DEP regulation, 310 CMR § 9.02, puts the burden on property owners to prove that all land seaward of a “historic high tide” level is accrued through natural accretion. The regulation defines the “historic high tide” level as based on a re-creation of the high tide level before settlement of the area. This new regulation not only shifts the common law burden of proof onto the shorefront property owner, but also purports to change longstanding common law that naturally occurring, but artificially induced, accretion accrues to the shorefront property owner. DEP commenced surveying the “historic” high tide level in Provincetown and proceeded westward. DEP completed the Provincetown map in 1996 and suggested that owners of shorefront property seaward of the “historic” high tide line apply for amnesty licenses. Since then, DEP has completed surveys of the rest of the coast. NELF’s client, Elena Hall, owns a heavily mortgaged parking lot on shorefront property in Provincetown, which has not been improved since Ms. Hall inherited it from her parents, and which provides Ms. Hall with her sole significant source of income. Approximately one-third of the parking lot and a portion of a small rental cottage on the property are seaward of DEP’s “historic” high tide line. Ms. Hall was one of several affected property owners who applied for an amnesty license. The lengthy bureaucratic process ended on November 30, 2005, when DEP rendered a final determination, granting Ms. Hall the right to use her property seaward of the “historic” line, but only on the onerous conditions that she (1) dedicate a four-foot wide public access way to the “beach” across her parking lot, losing at least 7 parking spaces (a significant financial loss); (2) pay $11,425 into a “public access” fund; (3) pay an annual compliance fee, which DEP can change at any time; and (4) accede to a thirty-year license lifespan, after which she or her successors in title would have to reapply and face new fees and conditions. Ms. Hall filed an administrative appeal with DEP arguing that: (1) accretion since 1857, whether natural or partially artificial, should accrue to the benefit of the landowner and it is DEP’s burden to prove otherwise; and (2) the “historic” line imposed by DEP is inaccurate because of poor engineering and a series of historic state licenses granted to Ms. Hall’s predecessors in title, which have accompanying plans showing the mean high tide line at approximately its current level since as early as 1875. NELF will argue additionally that any public access requirement over Ms. Hall’s upland property would constitute an improper non-proportional exaction under Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). These cases require a substantial nexus between a license condition and the purported adverse impact of the proposed development. In this case, however, Ms. Hall’s use of the portion of her property seaward of DEP’s “historic” line has no adverse impact on public access to the beach, as the public can otherwise access the beach without first crossing over Ms. Hall’s more upland property. Ms. Hall has been represented by Masterman, Culbert & Tully at the initial administrative level, but cannot afford to continue the legal representation and requested NELF to represent her directly in this test case, likely to be the first to contest DEP’s novel “historic” high tide line regulation. If Ms. Hall is unsuccessful at the administrative appeal level, she would likely file an appeal to Superior Court under G.L. c. 30A.