In a decision that hinged on copies of deeds and maps dating to 1813 - and in particular, an 1819 map - the Massachusetts Appeals Court ruled today the public has the right to walk atop a seawall that a Rockport shopkeeper has been trying to keep shut.
In 2005, Wendy Stone-Ashe put a fence across the path in front of her property at 25 Dock Square. The state got involved, saying the fence was against the law because the seawall extended past the historic high-water line into tidelands over which the state has jurisdiction.
The case wended its way through state regulators, a state appeals board and Superior Court, where each side presented its own experts to battle over just where the high-water mark was there and when the seawall was actually built.
The state Department of Environmental Protection initially sided with residents who wanted the path re-opened. Stone-Ashe appealed to an administrative magistrate, who agreed with her, but then the state commissioner of environmental protection overturned that and sided with the residents, which sent Stone-Ashe to Superior Court, where she lost, so she appealed to the next higher court.
In its ruling, the Massachusetts Appeals Court said that looking back, the key part of the seawall was well past the historic high-water mark after which the state has say - with that "historic" mark being defined as the place where the high-water mark would have been before people started doing things like dumping fill to extend coastlines.
When superimposed on the present location of the seawall-walkway, the 1819 map places the high water mark landward of the seawall-walkway. ... While the plaintiff's surveyor suggests that the map is unreliable because we cannot travel back in time to evaluate the work, that rationale would apply to any historic map. The department, by regulation, has determined that reliance on historic maps is appropriate. ... Accordingly, based as it is on expert testimony comparing the 1819 map with current conditions, we have little difficulty concluding that the commissioner's decision is based on substantial evidence and we discern no error in the decision of the Superior Court judge upholding the final decision of the commissioner.
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