A Tisbury homeowner’s effort to build a 100-foot private pier in the Lagoon Pond has been rebuffed again by a superior court judge.
The ruling in a dispute that has been going on for five years is seen as a victory for the town’s ability to impose environmental restrictions that are stricter than those established by the state.
The case involved a challenge to the Tisbury wetlands protection bylaw that was designed, among other things, to protect valuable shellfish resources in town waters.
Massachusetts towns are permitted to adopt their own local wetlands protection bylaws with rules that are stricter than the state Wetlands Protection Act. Most towns in Massachusetts, including Tisbury, have adopted their own bylaws.
In 2008 the conservation commission denied David Hearn’s plan to build a 100-foot pier from his property fronting the lagoon at 85 Hines Point Road, because the area where the pier was planned is mapped by the town as habitat for quahaugs, bay scallops, softshell clams, blue mussels and razor clams.
Mr. Hearn appealed the decision to the state Department of Environmental Protection. In July 2009 the DEP overturned the commission decision, allowing the pier and issuing what is known as a superceding order of conditions. The state ruling included conditions that the applicant revise the plan to minimize the impact on shellfish resources. (The applicant had hired his own marine biologist who said the impact on the shellfish resources in the area of the planned pier would be minimal.) But the DEP ruling allowed the pier only under the state wetlands law; Mr. Hearn was required to return to the conservation commission to reapply under the town wetlands bylaw. Following another lengthy proceeding that included detailed testimony from the town shellfish committee and shellfish constable calling the area a significant shellfish habitat, the commission voted again in June 2010 to deny the pier.
Mr. Hearn appealed the decision, and in a ruling issued May 30, the Hon. Gary A. Nickerson, a justice of the superior court, upheld the town, taking special note of the local wetlands protection bylaw.
“While the plaintiff’s proposal was found to satisfy the Wetlands Act and DEP regulations, the local bylaw represents an additional, independent layer of environmental protection,” the judge wrote.
Mr. Hearn still may appeal to the state appeals court. He could not be reached for comment at press time yesterday.
Town conservation leaders greeted the decision with relief and said if there is no appeal it will mark the end of a long, contentious road.
“It was a very controversial application,” Tisbury conservation agent Jane Varkonda said. “There was a lot of pressure put on the town by the applicant. And we are glad to see it settled. It’s been going on a long time.”
As for the decision’s impact, she said it underscores the fact that towns need to spell out their regulations.
“That’s the reason why the towns have the bylaw and need to have the regulations, and those regulations need to spell out how you determine what resources you will protect and . . . what those parameters will be. You need to have definitive guidelines,” she said.
Conservation commission chairman Tom Robinson echoed her remarks. “I am happy they upheld our decision,” he said. “I think it proves our decision was based on sound principles of the state Wetlands Protection Act and our bylaw. That’s what we based it on and I’m glad it was upheld.”