(dissenting). Had the plaintiffs not sought further review from the town’s conservation commission (commission), the Department of Environmental Protection’s (DEP) superseding order of conditions clearly would apply. The plaintiffs, however, chose not to pursue their right to enforce the DEP’s superseding order. In voluntarily returning to the commission and continuing before it even after notice of the DEP’s superseding order, the plaintiffs chose to ignore the tardiness of the commission’s first decision and their right to enforce the DEP’s superseding order. They opted, instead, to reinvoke the commission’s jurisdiction, to submit a new plan for consideration, to cause a second public hearing and further deliberation by the commission, and for the commission to have a new twenty-one *491day period to issue a second order with findings.1 The commission’s second decision denying the variance and the order of conditions does not suffer from the same jurisdictional impediment as the first.21 discern no reason that we should allow the plaintiffs to ignore their rights under the DEP’s superseding order, reinvoke the jurisdiction of the commission, and then ignore the commission’s timely second decision. There being no serious argument that Falmouth’s wetland regulations (FWR) are not more restrictive than the Wetlands Protection Act (act), G. L. c. 131, § 40, the DEP’s superseding order does not trump the commission’s second decision.
Deliberation by the commission. The plaintiffs argue that the second decision was not the result of deliberation among the commission members. “Deliberation,” they point out, is defined in the open meeting statute as “a verbal exchange between a quorum of members of a governmental body attempting to arrive at a decision.” G. L. c. 39, § 23A, inserted by St. 1975, c. 303, § 3.3 They claim that although the commissioner kept the public hearing open after the first hearing on remand for the purpose of allowing the plaintiffs to file cases supporting their hardship argument, the commission promptly voted at the next hearing without further discussion. The plaintiffs ignore that the public hearing had been closed except for the supplementation *492of the record, which had been accomplished before the commission’s hearing on March 14, 2007. Given the lengthy discussion at the first hearing on remand, the commission’s decision to close the hearing subject only to the supplementation of the record with copies of cases, and the fact that the record was supplemented nine days before the March 14th hearing, I discern no merit to the plaintiffs’ argument that the commission did not “deliberate.”
The second decision. The plaintiffs argue that the commission’s second decision denying their application for a variance was arbitrary, capricious, an abuse of discretion, not based upon substantial evidence, and based on error of law. See Dubuque v. Conservation Commn. of Barnstable, 58 Mass. App. Ct. 824, 829 (2003). I disagree.
The town’s by-law allows variances pursuant to FWR § 10.13(1) for those individuals who suffer a “hardship” as that term is defined in FWR § 10.04.4 In the absence of a demonstrated hardship, therefore, the plaintiffs lack standing to obtain a variance.5 In an effort to establish a hardship, the plaintiffs point to what they consider a legal expectation to construct a dock by virtue of their ownership of waterfront property. They claim this right dates back to colonial times when the government encouraged waterfront property owners to construct private piers and even extended private ownership to the low water mark to facilitate construction. Applying the town’s *493wetland regulations to take away this right, they argue, constitutes a “hardship.”
The argument is unavailing. “There can be no doubting the proposition that property may be subject to reasonable restraints and regulation in the public interest.” Lovequist v. Conservation Commn. of Dennis, 379 Mass. 7, 19 (1979). Even accepting that owners of waterfront property were encouraged in colonial times to construct private piers and docks, I do not see how that translates to a legal right to construct a dock in 2006. The plaintiffs do not suggest that when they took title to their property, docks were not subject to regulation in the public interest.
Moreover, the plaintiffs fail to demonstrate any “substantial economic loss,” as the term is used within the definition of “hardship” in FWR § 10.04, that would result from literal enforcement of the by-law. Nor does their contention that their property has a two-foot-high peat shelf covered with mussels where it meets the water demonstrate an unusual characteristic. In support of their argument, the plaintiffs compared their property to that of a single abutter to the north whose property, they contend, is fronted by a sandy beach. A single comparison hardly demonstrates that the plaintiffs’ property has a unique characteristic.
The commission did not err in rejecting the plaintiffs’ argument that they would suffer a hardship as that term is used in the town’s by-law and implementing regulations and, accordingly, did not err in denying the variance. In the absence of a hardship, the commission was without authority to issue a variance. As such, there is no need to address the plaintiffs’ remaining arguments as to the denial of the variance. The plaintiffs essentially make no argument directed separately to the denial of their notice of intent, and therefore, the issue is waived. I note, however, that the plaintiffs’ failure to obtain a variance, alone, is sufficient reason to deny the notice of intent as it is clear that the plaintiffs cannot comply with all the requirements of the by-law. See FIC Homes of Blackstone, Inc. v. Conservation Commn. of Blackstone, 41 Mass. App. Ct. 681, 687 (1996). The commission’s second decision of denial should therefore be upheld.
The plaintiffs conceded at oral argument that they did not expressly reserve their right to argue that the first decision was procedurally flawed. Their contention that by retaining jurisdiction in the Superior Court they preserved their right to make the argument that the first decision was untimely is unsupported by authority and does not rise to the level of adequate appellate argument within the meaning of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See Murphy v. Planning Bd. of Hopkinton, 70 Mass. App. Ct. 385, 399-400 (2007).
The plaintiffs have not shown that the commission’s administrative error in failing to attach its reasoning to the second decision is a jurisdictional error akin to an untimely decision.
The error was eventually remedied and the plaintiffs do not claim any prejudice. The plaintiffs have provided no authority for the proposition that the commission’s failure to comply with § 10.05(9)(b) of the Falmouth wetland regulations (FWR) is tantamount to an untimely decision bringing it within the realm of Oyster Creek Preservation, Inc. v. Conservation Commn. of Harwich, 449 Mass. 859 (2007).
We note that G. L. c. 39, § 23A, has been repealed effective July 1, 2010, by St. 2009, c. 28, § 20.
“Hardship means the application of Chapter 235 of the Code of Falmouth to a particular piece of property, evaluated in its totality, owing to the unique characteristics of the property, that is unduly oppressive, arbitrary or confiscatory and would involve substantial economic loss to the Applicant because of the literal enforcement of the Bylaw provided that the Conditions and characteristics of the property are not the result of the actions of the Applicant, or owner, or their agents, predecessors, successors or assignees. No Hardship exists where there is established under the Code of Falmouth a right to transfer development rights.”
The plaintiffs make a circular argument that if the variance from the application of FWR § 10.16(l)(h)(2) had been granted, then the remaining sections of the town’s wetland regulations would have been no more onerous than the act with regard to shellfish. They contend that the DEP’s determination that there would be no adverse impacts to land containing shellfish renders the commission’s decision to deny the variance arbitrary, capricious, and an abuse of discretion. That a proposal may meet less onerous provisions under the act does not render a conservation commission’s decision to enforce a more restrictive local by-law arbitrary and capricious.