## Facts

- Barnstable adopted a wetlands-protection bylaw authorizing its Conservation Commission to permit or deny activities affecting wetlands, including private piers, and it promulgated pier regulations under that bylaw.
- The pier regulations limited a pier’s length to no more than 20% of the width of the waterway and barred piers that would interfere with uses such as navigation, shellfishing, and recreation.
- The regulations placed the burden on applicants to show a proposed pier would not have an “unacceptable significant and cumulative effect” on protected wetlands values.
- Madlyn and Howard Fafard owned residential property on the Eel River and applied to build a fixed private pier extending into the river.
- The proposed pier exceeded the 20%-of-width limit at the project location.
- The commission denied the application, finding noncompliance with the dimensional rule, interference with water-related activity and recreation, and failure to prove the absence of unacceptable significant and cumulative impacts.
- The Fafards challenged the bylaw and regulations as (1) preempted by G.L. c. 91 (state waterways licensing) and (2) improperly grounded in municipal enforcement of the public trust doctrine.
- The Superior Court affirmed the commission’s denial; the Supreme Judicial Court granted direct appellate review.

## Issues

1. Whether Barnstable’s wetlands bylaw and pier regulations, requiring local approval for a private pier, were inconsistent with or preempted by G.L. c. 91.
2. Whether a municipality may invoke the public trust doctrine as an independent source of regulatory authority absent express legislative delegation.

## Decision

- The court affirmed the judgment upholding the commission’s denial of the permit.
- The court held the bylaw and pier regulations were not preempted by G.L. c. 91 because they furthered, and did not frustrate, the public interests served by the state licensing scheme and there was no clear legislative intent to occupy the field.
- The court held municipalities may not administer public trust rights without express legislative authorization; to the extent the bylaw or decision relied directly on the public trust doctrine as a source of authority, it exceeded municipal power.
- The denial nevertheless stood because it was supportable under the commission’s valid local wetlands-protection authority and the applicable pier regulations.

## Legal Principles

- Local wetlands bylaws may impose requirements more stringent than state law, including local permitting, unless they directly conflict with state statutes or frustrate state purposes.
- G.L. c. 91 does not, without clear legislative intent, preempt additional local regulation of structures in coastal waters and tidelands that is consistent with the statute’s objectives.
- The public trust doctrine is administered by the Commonwealth; municipal bodies may not claim independent authority to enforce public trust rights absent express legislative delegation.
- Where an invalid basis (public trust doctrine) is severable and the decision is independently supported by valid local authority (wetlands protection standards and regulations), the permit denial may be sustained.
- An applicant can be required to carry the burden to show a proposed pier will not cause unacceptable significant and cumulative adverse effects on protected wetlands values.

## Conclusion

Barnstable’s pier and wetlands regulations were enforceable alongside the state waterways licensing scheme because they did not conflict with G.L. c. 91, but the town could not treat the public trust doctrine as an independent source of municipal power; the permit denial was affirmed on valid wetlands-protection grounds.


Fafard v. Conservation Comm'n of Barnstable, 432 Mass. 194, 733 N.E.2d 66 (2000)