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19-P-1025                                             Appeals Court

  COMMERCIAL WHARF EAST CONDOMINIUM ASSOCIATION & others1      vs.
            DEPARTMENT OF ENVIRONMENTAL PROTECTION.


                             No. 19-P-1025.

             Suffolk.       May 13, 2020. - July 31, 2020.

            Present:    Green, C.J., Maldonado, & Blake, JJ.


Department of Environmental Protection. License. Notice.
     Administrative Law, Intervention, Official notice,
     Regulations. Real Property, Condominium, Restrictions,
     Littoral property. Trust, Public trust.



     Civil action commenced in the Superior Court Department on
July 22, 2016.

     Motions for judgment on the pleadings were heard by Michael
D. Ricciuti, J., and a motion to alter the judgment and for
reconsideration was considered by him.


     Seth Schofield, Assistant Attorney General, for the
defendant.
     John M. Allen for Commercial Wharf East Condominium
Association.

    1  PT By the Sea, LLC, intervener; Madeleine Bickert,
intervener; Elias Pettengill, intervener; John Cadigan,
intervener; Laurie Cadigan, intervener; Ted Sykes, intervener;
Karen Sykes, intervener; and John Shea and Julia Shea, as
cotrustees of the John B. Shea 2014 Revocable Trust and the
Julia P. Shea 2014 Revocable Trust, interveners.
                                                                    2


    Sarah A. Turano-Flores for Madeleine Bickert & others.


    GREEN, C.J.    After the Department of Environmental

Protection (department) issued a decision concluding that

changes from commercial to residential use of units in the

Commercial Wharf East condominium required the condominium to

obtain a new license under G. L. c. 91, plaintiff Commercial

Wharf East Condominium Association (CWECA) sought review in the

Superior Court pursuant to G. L. c. 30A, § 14.   Once there, the

owners of certain units in the condominium moved to intervene

and were allowed to do so, but only on a limited basis.     Among

the arguments CWECA advanced in the Superior Court action was

its contention that the administrative proceeding was flawed

from inception, because unit owners in the condominium, though

given notice, were not joined as parties.   A Superior Court

judge, acting on the parties' cross motions for judgment on the

pleadings, agreed with CWECA, vacated the administrative

decision, and remanded the matter to the department for further

proceedings.   The department appealed,2 and we affirm.




    2  The parties have raised no question concerning appellate
jurisdiction. Though an order of remand ordinarily is
interlocutory and ineligible for appeal, an order remanding a
matter to an administrative agency may be appealed where, as
here, it is final as to the agency. See, e.g., Commercial Wharf
E. Condominium Ass'n v. Department of Envtl. Protection, 93
Mass. App. Ct. 425, 430-431 (2018).
                                                                     3


     Background.    Commercial Wharf dates back to Boston's

earliest colonial days and has been the subject of the

historical wharfing statutes.    See, e.g., St. 1832, c. 51; St.

1900, c. 96.    In 1964, as part of an urban renewal plan for the

downtown waterfront area and Faneuil Hall, the "Waterfront North

Area," including Commercial Wharf, was approved for

"[r]esidential development on the wharves . . . of a very unique

character, intimately related to the water and to the old brick

and granite buildings which should be retained and rehabilitated

for residential use."

     On July 2, 1964, the Legislature enacted Chapter 663 of the

Acts of 1964, entitled "An Act Authorizing the Department of

Public Works[3] and the Boston Redevelopment Authority to

Exercise Certain Powers in Regard to Certain Tidelands Along the

Atlantic Avenue and Commercial Street Waterfront in the City of

Boston."   Under Chapter 663, the Commonwealth conveyed "all

right, title and interest of the [C]ommonwealth in and to the

tidelands" specified therein to the Boston Redevelopment

Authority, including the tidelands underlying Commercial Wharf,

for the purpose of achieving the Urban Renewal Plan.     St. 1964,

c. 663, § 2.4




     3 The Department of Public Works was then the State agency
charged with tidelands licensing under G. L. c. 91.
                                                                   4


     A condominium master deed establishing the Commercial Wharf

East condominium was executed and recorded with the Suffolk

County registry of deeds on or about August 8, 1978.   By its

terms, condominium units on either the first or second floor

(and two units on the third floor) were authorized for use

interchangeably for either residential or commercial purposes.

     On September 22, 2003, the department initiated two

enforcement actions, by means of unilateral administrative

orders, against two owners of a combined thirty-six units in the

condominium.5   The orders alleged that the owners had converted

the units from commercial to residential use.   Thereafter, on

July 14, 2004, the department issued a minor modification to the

two owners, pursuant to 310 Code Mass. Regs. § 9.22, expressly

authorizing the change of eleven specified units from commercial

to residential use, with one first-floor unit to remain a

facility of public accommodation.   Shortly following the

department's issuance of the minor modification, the eleven




     4 In 1972, the Legislature, through Chapter 310 of the Acts
of 1972, extended the procedure for redevelopment and
rehabilitation of tideland areas along the waterfront for any
urban renewal development project after January 1, 1971.

     5 According to the orders, Commercial Wharf East Property
LLC owned twenty-six units and Wharf Condominium Units LLC owned
ten units. Both entities were developers who held the units for
sale.
                                                                   5


units were sold to individuals under unit deeds that restricted

their use to residential.

     On September 16, 2011, Boston Boat Basin, LLC (Boston

Boat), the owner and operator of a marina abutting the

condominium at the water's end of Commercial Wharf, filed a

request for determination of applicability under 310 Code Mass.

Regs. § 9.06 (RDA).6   The RDA alleged a change in use of

condominium units within the condominium, but did not identify

the units it contended had changed in use; instead, it asserted

that Boston assessor's and inspectional services records

suggested that thirty-six units were in commercial use in 1984,

while only one unit remained in commercial use in 2010.7    The RDA

named CWECA as the owner of the property at issue, but did not

name, or give notice to, the owners of any units within the

condominium.

     On June 5, 2013, the department issued its determination of

applicability that concluded:


     6 Boston Boat retained Fort Point Associates, Inc., the same
consultant that had represented the unit owners in the 2004
enforcement action that resulted in the 2004 minor modification.

     7 The RDA acknowleded that the 2004 minor modification
authorized a change from twelve commercial units to eleven
residential units and one facility of public accommodation, but
that the remaining twenty-four units were changed from
commercial to residential use without authorization. Because a
change in use of twenty-four units affects more than ten percent
of the condominium, the RDA asserted that the entire condominium
building must obtain a new license.
                                                                     6


     "Relying upon the information as submitted by [Boston Boat]
     . . . pursuant to 310 CMR 9.05(1)(b), the changes in use of
     thirty-six (36) units from commercial to residential
     subsequent to January 1, 1984 described in the [RDA]
     require authorization."

     On June 25, 2013, CWECA filed an administrative appeal of

the determination, pursuant to 310 Code Mass. Regs. § 9.17.     In

its appeal, CWECA observed that it "neither owns nor controls

any of the condominium units located within the [condominium]."8

In an early scheduling order, issued on October 18, 2013, the

presiding officer observed:

     "Although unit owners in CWECA's building may be affected
     by this proceeding, none has intervened. CWECA should
     clarify whether it has provided or intends to provide
     notice of this proceeding to potentially affected unit
     owners by filing a brief statement with the Case
     Administrator as soon as practicable. The Department
     should clarify its practice for appeals where a
     Determination of Applicability for a condominium may
     determine the rights of unit owners, more specifically
     where the use of certain units potentially may be
     affected."

     In response, the department advised the presiding officer

by e-mail that "on information and belief, while there may not

be a practice specifically relating to Determinations of

Applicability, it has not historically been the practice of the

Department to notify individual unit owners when notice is

legally required by 310 CMR 9.00 to a property containing

condominiums, but has instead been to notify the condominium




     8   But see footnote 15, infra.
                                                                      7


association."     Continuing, the department advised that "a letter

was sent to unit owners in this case after the Determination had

been issued and the appeal had been filed."     Thereafter, the

presiding officer sent two notices to all unit owners, on

November 14, 2014, (regarding a prehearing conference) and on

December 22, 2014 (advising of CWECA's appeal and advising that

interested persons may intervene).     Between the dates of the

first and second notices, CWECA filed a motion requesting that

the department identify the units it claimed had changed in use.

However, that request remained pending at the time of the

presiding officer's second notice.

    Boston Boat filed its motion for summary decision on

February 23, 2015.     The motion was not accompanied by any

affidavits or other evidentiary material; instead, it summarized

the evidence submitted with the RDA it previously had filed with

the department.     CWECA requested, and obtained, an extension of

time to respond to Boston Boat's motion and filed requests for

discovery from the department and Boston Boat.     CWECA also

filed, on January 22, 2015, a motion to disqualify the presiding

officer, based on her previous role as counsel to the

department's commissioner from 2000 to 2006, which included the

period in which the department issued the 2003 administrative

enforcement orders and the 2004 minor modification that resolved

those orders and approved the change of use of certain units.
                                                                   8


     On June 30, 2015, the presiding officer issued three orders

denying CWECA's discovery requests, its motion to disqualify

her, and its motion requesting the department to identify the

affected units.9   On July 2, 2015, Boston Boat filed a request

that the presiding officer establish a date by which responses

to its motion for summary decision would be due.   By e-mail to

the parties later that day, the department's general counsel

advised that the presiding officer previously assigned to the

case had retired, effective as of June 30, 2015.

     CWECA filed its opposition to Boston Boat's motion for

summary decision on November 6, 2015, accompanied by affidavits

and other supporting materials.10   On January 14, 2016, the

successor presiding officer issued a recommended final decision

recommending that Boston Boat's motion for summary decision be




     9 A subsequent attempt by CWECA to obtain information from
the department identifying the affected units also was
unsuccessful.

     10Among other things, CWECA's affidavits contended that
Boston Boat's assertion that thirty-six units had changed from
commercial to residential use could not be true, because (i) all
units on the third floor of the condominium or above have been
used only for residential purposes at all time since the
condominium was established; (ii) there were only thirty-six
units in total on the first and second floors of the
condominium; (iii) DEP approved eleven units for change from
commercial to residential use in the 2004 modification; and (iv)
at least seven other units among those on the first and second
floors remained in commercial use.
                                                                    9


allowed.11   The commissioner adopted the recommended decision in

a final decision issued on May 3, 2016.12

     On July 22, 2016, CWECA filed an appeal from the final

decision in the Superior Court, pursuant to G. L. c. 30A, § 14.

On September 21, 2017, certain of the then owners of units that

were the subject of the 2004 minor modification moved to

intervene in the Superior Court action.     At a hearing on their

motion held on December 4, 2017, the motion judge expressed her

view that, because the unit owners who intervened had previously

been given notice and did not intervene "in a timely fashion,"

they should be allowed to intervene only on a limited basis and

would not be allowed to "expand the matter in any respect."      She

suggested that they attempt to reach agreement with the

department on the scope of their involvement, including such

matters as filing consolidated briefs and prohibiting any

expansion of the administrative record, and present her with a

proposed order.   Thereafter, a different motion judge adopted

the proposed order the interveners and the department jointly




     11Under department practice, the presiding officer conducts
the adjudicatory hearing and issues a recommended decision, and
the commissioner thereafter issues a final decision, typically
adopting the recommended decision.

     12The presiding officer thereafter issued a recommended
final decision, recommmending that CWECA's motion for
reconsideration be denied, and the commissioner adopted his
recommendation.
                                                                     10


submitted on February 1, 2018.     On July 16, 2018, the

interveners, CWECA, and the department all filed motions for

judgment on the pleadings.     After a hearing, a third motion

judge issued an order denying the motions for judgment on the

pleadings, but vacating the commissioner's decision and

remanding the matter to the department, based on his conclusion

that the department "erred as a matter of law by proceeding

without the unit owners affected by the RDA."      A "judgment"

entered,13 and (after its motion to alter the judgment and for

reconsideration was denied) the department appealed.

     Discussion.    General Laws c. 91, known generally as the

Waterways Act, "governs, among other things, water- and

nonwater-dependent development in tidelands and the public's

right to use those lands.      Chapter 91 finds its history in the

public trust doctrine, 'an age-old concept with ancient roots

. . . expressed as the government's obligation to protect the

public's interest in . . . the Commonwealth's waterways.'"        Moot

v. Department of Envtl. Protection, 448 Mass. 340, 342 (2007),

quoting Trio Algarvio, Inc. v. Commissioner of the Dep't of

Envtl. Protection, 440 Mass. 94, 97 (2003).      After the Supreme

Judicial Court held, in Boston Waterfront Dev. Corp. v.

Commonwealth, 378 Mass. 629, 648-649 (1979), that tidelands may




     13   See note 2, supra.
                                                                    11


be used only for a purpose approved by the Legislature as a

public use, and that changes in use over time required

legislative approval, the Legislature amended G. L. c. 91, § 18,

to require a new license for changes in use of structures or

fill licensed under the Waterways Act.     See St. 1983, c. 589,

§ 26.     In addition, "[a]s part of its mandate to 'preserve and

protect' the public's rights in tidelands, G. L. c. 91, § 2, the

department, under G. L. c. 91, § 14, may not license uses or

structures in tidelands, except as authorized by G. L. c. 91,

§ 18, unless such structures 'are necessary to accommodate a

water dependent use.'"     Moot, supra at 343.14

     The department has promulgated regulations to administer

its tidelands licensing authority.     Under 310 Code Mass. Regs.

§ 9.05(1) (2014), the holder of a tidelands license must file an

application with the department for (among other things):

     "(d) any change in use of fill or structures from that
     expressly authorized in a valid grant or license or, if no
     such use statement was included, from that reasonably
     determined by the Department to be implicit therein,
     whether such authorization was obtained prior to or after
     January 1, 1984."

     In addition, under 310 Code Mass. Regs. § 9.06(1) (2014),

"[a]ny person who desires a determination whether 310 CMR 9.00


     14By regulation, the department protected otherwise
unauthorized structures and uses lawfully commenced prior to
1984, provided no unauthorized structural alteration or change
in use occurs after January 1, 1984. See 310 Code Mass. Regs.
§ 9.05(3)(b) (2014).
                                                                  12


presently apply to any area of land or water, or any activity

thereon, may submit to the Department a request for a

determination of applicability," together with certain specified

information concerning the location at issue.   When seeking a

determination of applicability, the applicant is required by 310

Code Mass. Regs. § 9.13(1)(a) (2014) to send notice to (among

others) "all landowners and easement holders of the project site

and abutters thereto."   The decision of the department to grant

or deny a license or permit, or on a request for a determination

of applicability, is subject to review in an adjudicatory

appeal, upon request of "an applicant who has demonstrated

property rights in the lands in question, or which is a public

agency," 310 Code Mass. Regs. § 9.17(1)(a) (2017), or "any

person aggrieved by the decision of the Department to grant a

license or permit who has submitted written comments within the

public comment period" (emphasis added).   310 Code Mass. Regs.

§ 9.17(1)(b) (2014).

    In the present case, the owners of units in the condominium

were entitled to notice of Boston Boat's RDA, under 310 Code

Mass. Regs. § 9.13(1)(a), by virtue of their status as

landowners of the project site.   "Ownership of a condominium

unit is a hybrid form of ownership in real estate, entitling the

owner to both 'exclusive ownership and possession of his unit,

G. L. c. 183A, § 4, and . . . an undivided interest [as tenant
                                                                    13


in common together with all the other unit owners] in the common

areas . . . .'"   Noble v. Murphy, 34 Mass. App. Ct. 452, 455-456

(1993), quoting Kaplan v. Boudreaux, 410 Mass. 435, 438 (1991).

Though the association of unit owners is the sole entity

authorized to litigate matters concerning the common areas, see,

e.g., Strauss v. Oyster River Condominium Trust, 417 Mass. 442,

445 (1994); Cigal v. Leader Dev. Corp., 408 Mass. 212, 217-218

(1990), the association itself holds no ownership interest in

the common areas, which are held by each of the unit owners in

proportionate interest.15   See G. L. c. 183A, § 5.   Passing any

question whether Boston Boat's notice to CWECA would have been

adequate if its RDA affected only the common areas of the

condominium,16 the subject matter of Boston Boat's request

plainly implicated the units themselves, as it was principally

based on its assertion that a number of units had changed from

commercial to residential use after 1984.   The RDA, and the

department's review of it, was fundamentally procedurally flawed

from its inception.




     15In the present case, CWECA incidentally does hold a
partial interest in the common areas, by virtue of its ownership
of one of the commercial units in the condominium.

     16We express no view on the question whether the unit
owners would have been entitled to notice as "abutters" to the
project site under 310 Code Mass. Regs. § 9.13(1)(a).
                                                                   14


     The department suggests that, even if Boston Boat's failure

to give notice of its RDA to unit owners within the condominium

was deficient, CWECA and the unit owners have failed to

demonstrate any prejudice to their substantial rights entitling

them to relief.   See G. L. c. 30A, § 14 (7); Chiuccariello v.

Building Comm'r of Boston, 29 Mass. App. Ct. 482, 486 (1990).

Pointing to the fact that the first presiding officer in the

adjudicatory appeal directed that notice be given to the unit

owners in that proceeding, that a number of unit owners elected

to intervene, and that sixty-five of the unit owners submitted

affidavits as part of the appeal, the department suggests that

the unit owners suffered no prejudice by virtue of Boston Boat's

failure to give them notice in its RDA.   However, the presiding

officer denied CWECA's request to require that the department

identify units alleged to have changed in use.   Accordingly,

individual unit owners were unable to determine whether their

particular rights in their unit would be affected by the

proceeding.   Moreover, in her order denying CWECA's request, the

presiding officer cited her view that CWECA was the owner of the

building, rather than the unit owners, and observed that the

proceeding was not an enforcement action against individual unit

owners.17   As to the first point, we have explained above why


     17The presiding officer also observed that the burden of
proof in the adjudicatory appeal rested on CWECA rather than the
                                                                  15


that view is incorrect as a matter of law.   As to the

distinction between this determination of applicability and an

enforcement proceeding, unless the department is taking the

position (which it does not appear to be doing) that the

determination has no preclusive effect against the unit owners,

or unless the department otherwise is taking the position (which

it does not appear to be doing) that the determination binds

CWECA but not the unit owners, then the unit owners whose uses

will be directly affected by the determination need to be

identified in time for them to participate meaningfully in the

proceedings and to attempt to protect their respective property

interests.

    We are unpersuaded by the department's suggestion that

requiring notice to unit owners within condominiums established

on filled tidelands will pose insurmountable practical

challenges in its administration of the Waterways Act.   In fact,

review and evaluation of applications for a c. 91 license when a

condominium is first established will not, as the department




department. But that illustrates rather than negates the
significance of Boston Boat's failure to name the unit owners in
its RDA. In the RDA review, antecedent to the adjudicatory
appeal, the burden of proof rested on Boston Boat, and the unit
owners presumably could, at that earlier stage, have insisted
that Boston Boat identify which units were alleged to have
changed in use, so that the owners of those units would have an
opportunity to meet that assertion with evidence to the
contrary.
                                                                 16


contends, impose impossible burdens on the department's staff

because of the multiplicity of parties; when a condominium is

first established, it is the unitary owner of the project who

submits the land and buildings to the provisions of the

condominium statute.   See G. L. c. 183A, § 2.   Only when an

attempt to review or modify a previously issued license arises

after the condominium is established, and units sold to third

parties, will multiple parties become involved.   But for the

reasons we have explained, in such instances the unit owners

have substantial property interests entitling them to

participate meaningfully in the proceeding.

                                    Judgment affirmed.

                                    Order entered March 15, 2019,
                                     denying motion to alter
                                     judgment and for
                                     reconsideration affirmed.
