State appeals court finds for Chappy resident in boardwalk suit

The Edgartown conservation commission acted arbitrarily and capriciously when it denied Theodore Roosevelt IV a permit to build a boardwalk.

Cape Poge Pond to Cape Poge Bay. —Carl Treyz

The Edgartown conservation commission has been directed by the Massachusetts Appeals Court to undertake “further proceedings” in the matter of Theodore Roosevelt IV’s wetland boardwalk on Chappaquiddick. In a decision made on Monday, Dec. 5, Associate Justices Mark V. Green, Gregory I. Massing, and Peter Sacks reversed a decision by Superior Court Justice Robert J. Kane. On August 7, 2014, the conservation commission denied a permit to Mr. Roosevelt. Mr. Roosevelt, the great-grandson of President Theodore Roosevelt, wished to build an elevated walkway over a salt marsh on his Cape Pogue property. It was denied because the town wetlands law goes beyond the Wetlands Protection Act to include the “preservation of natural and historic views and vistas.” The commission said that the boardwalk could be seen by passers-by from outside Mr. Roosevelt’s property.

The Appeals Court used strong language to instruct the conservation commission to produce more evidence for its claim: “Although the commission is entitled to all rational presumptions in favor of its interpretation of its own bylaw, there must be a rational relation between its decision and the purpose of the regulations it is charged with enforcing. Read as a whole, the commission’s findings (as supplemented by its further findings) are expressed in such broad and sweeping terms, in ostensible protection of amorphous (but otherwise undefined) interests under the local bylaw, and with such a startling absence of evidentiary support, that they smack of precisely the sort of arbitrary and capricious determinations that even our traditionally deferential posture toward administrative bodies will not leave intact.”

The town conservation commission looks at both the application associated with the state Wetlands Act and the application associated with their own bylaw. Upon denial of his permit, Mr. Roosevelt appealed to the state Department of Environmental Protection for review of his state application. They found that the conditions of the state law were satisfied, and decided that Mr. Roosevelt could go ahead with the boardwalk if he satisfied state requirements that would protect the wetland.

When a permit is denied based on criteria in the town bylaw, the applicant must appeal to the Superior Court. Justice Gary Nickerson in Barnstable acknowledged that the DEP had affirmed Mr. Roosevelt’s plan, but he instructed the town commission to make additional findings to support their denial. When the matter returned to Superior Court, the case was heard by Justice Kane, who also agreed with their denial of the permit.

Mr. Roosevelt turned to the Appeals Court in December 2015. The case was heard on Nov. 1. “Though we reject the plaintiff’s contention,” wrote the Appeals Court justices, “that the local wetlands bylaw adopted by Edgartown does not impose more stringent requirements than the Wetlands Protection Act, … we agree that the commission’s decision is arbitrary and unsupported by substantial evidence.” The justices acknowledged the existence of the “preservation of natural and historic views” language, but contended that the commission had not provided evidence that showed it had been violated.

“Our review of the record,” the written decision continues, “reveals no evidence to support a conclusion that the walkway would be visible beyond the boundaries of the plaintiff’s property; such evidence as is in the record is simply unilluminating on the question … The commission’s decision likewise contains no finding, explanation, or reasoned discussion of the adverse effects such visibility would have on the additional interests identified for protection under the local bylaw.”

The matter is not, however, closed. The Appeals Court decision did not end by instructing the conservation board to grant the permit.

“This is a good decision for the town,” said attorney Michael Goldsmith of Reynolds, Rappaport, Kaplan, & Hackney, who represented the conservation commission, “because the Massachusetts Appeals Court ruled that the Edgartown Wetlands bylaw is more stringent than the state Wetlands Protection Act in certain respects, and affirmed that the commission has independent, local authority to regulate recreational interests and to issue orders of condition designed to preserve natural and historic views and vistas, contrary to what had been contended in this case. While the Appeals Court could have ordered a permit to issue, the Court instead remanded the matter to the commission for further hearings as to whether the proposed walkway will have a detrimental impact on those two important local wetlands interests.”

“Michael [Goldsmith] says we will have a new hearing after the Superior Court tells us what to do,” said Jane Varkonda, the conservation agent for Edgartown. “Mr. Roosevelt needs local approval to build a new boardwalk.” A boardwalk that the Chappaquiddick resident built without a permit has been removed. The conservation commission must produce evidence that the proposed walk violates their “historic views and vistas” clause, and bring it to a new hearing.

Neither Mr. Roosevelt nor Diane C. Tillotson, the attorney for his trust in this case, could be reached for comment.

Click here to read the court’s full decision.