At issue in this case is the interpretation of the plaintiffs G.L. c. 91 licenses issued by the defendant Department of Environmental Protection (DEP). Specifically, the plaintiffs seek a declaration and orders regarding the scope of rights of plaintiffs to use, under Chapter 91 licenses, a pier . . . Third Amended Complaint for Declaratory Relief at 1 (Dec. 4, 2007). The pier in question is built over Commonwealth tidelands, subject to regulation by the DEP. The plaintiffs claim that their DEP licenses, License Nos. 95 and 7076, allow them to moor[] . . . vessels of beam not greater than 20 feet to both sides of [their pier, ramp, and float] and allow[] [them] reasonable navigable access to the mooring locations on the structures. Id. at 6.
Defendants 72 Crosby Circle Realty Trust, Crosby Yacht Yard Trust, Crosby Docks Trust, and Crosby Yacht Yard, Inc. (collectively, Crosby Circle), which own and operate an abutting boat yard to the north of the plaintiffs property, contend that the plaintiffs licenses neither expressly allow the plaintiffs to dock boats on the north side of the pier (the side abutting Crosby Circles boat yard and piers), nor reasonably can be interpreted to allow such uses. It also contends that the plaintiffs do not have a valid Army Corps of Engineering (Army Corps) permit that would allow them to dock boats on the north side of the pier. Finally, it contends that permitting the plaintiffs to dock boats on the north side of the pier interferes with Crosby Circles right to use the tidelands to navigate to and from its property.
On the eve of trial in this case, and perhaps prompted by the imminence of that trial, both the DEP and the Army Corps issued decisions that explicitly address the central issue in this case. The DEP draft license states that the plaintiffs cannot berth vessels with a beam greater than ten (10) feet on the northerly side of [the] pier, ramp and float. The Army Corps decision prohibits the plaintiffs from berthing any vessels on the north side of the pier. As a result of these two decisions, the defendants have moved to dismiss the case based on the plaintiffs failure to exhaust their administrative remedies in the DEP and Army Corps proceedings.
For the reasons set forth in the courts Memorandum and Order Allowing Defendants Motion Dismiss of this date, the defendants motions to dismiss are ALLOWED. The plaintiffs claims are dismissed, in their entirety, without prejudice to bring them again in an appropriate court once the plaintiffs have exhausted the administrative remedies.
SO ORDERED.
By the court (Long, J.)
OYSTER HARBORS YACHT BASIN REALTY CORP. and OYSTER HARBORS YACHT BASIN, INC. v. RICHARD B. EGAN and AUDREY J. EGAN, as trustees of the 72 CROSBY CIRCLE REALTY TRUST; GREGORY R. EGAN, as trustee of the CROSBY YACHT YARD TRUST; RICHARD B. EGAN, as trustee of the CROSBY DOCKS TRUST; CROSBY YACHT YARD, INC.; and the DEPARTMENT OF ENVIRONMENTAL PROTECTION