Elena Hall v. Department of Environmental Protection

(Massachusetts Division of Administrative Law Appeals)

• Opposing Regulatory Encroachment of Coastal Property Rights

In 1991, the Massachusetts Department of Environmental Protection (DEP) adopted a new regulation under G. L. c. 91 that reversed longstanding common law presumptions about the ownership of shorefront property.  Because the most common means of shoreline increase is accretion (slow and gradual addition of upland at the mean high tide line) and because it is so difficult to prove imperceptible, gradual growth, courts have adopted a rebuttable presumption that a shoreline increase is due to accretion.  The presumption is important because accretion accrues to the property owner, whereas shoreline increases due to major storms or unpermitted filling do not. The 1991 DEP regulation, 310 CMR § 9.02, eliminated this presumption and placed the burden on property owners to prove that all land seaward of the “historic high tide” level results from accretion. The regulation also reversed longstanding common law that naturally occurring, but artificially induced (although not artificially enhanced), accretion accrues to the property owner. Following promulgation of its regulation, DEP suggested that owners of shorefront property seaward of the “historic” high tide line, as mapped by DEP, apply for amnesty licenses. NELF’s client, Elena Hall, owns a parking lot on shorefront property in Provincetown that 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 applied for an amnesty license and DEP issued a license imposing several onerous and costly conditions on Ms. Hall’s right to use her property seaward of the “historic” line.  Ms. Hall filed an administrative appeal with DEP and NELF agreed to take over Ms. Hall’s representation in this test case of DEP’s regulation.  If the case is appealed to the Superior Court, NELF will argue that DEP’s regulation exceeds that agency’s statutory authority and defeats longstanding expectations associated with property ownership contrary to the Fifth Amendment.  NELF will further argue that a license condition requiring public access to Ms. Hall’s property constitutes an improper non-proportional exaction since 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.