Doherty v. Planning Board of Scituate
Doherty v. Planning Board of Scituate
Opinion of the Court
The plaintiff, Mary Ann Doherty, owner of two adjacent unimproved lots on a barrier beach peninsula in the town of Scituate (town),
1. Background. The judge found the following facts, which we occasionally supplement with undisputed facts in the record. See Wendy’s Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 383 (2009) (Wendy’s) (on appellate review, judge’s factual findings will not be set aside unless clearly erroneous or where there is no evidence to support them). The unimproved lots in question are located at 114 and 118 Edward Foster Road, in the town’s A-3 residential district. The lots consist of approximately 21,600 and 20,950 square feet in area. They are located on a barrier beach peninsula. The easterly side of the peninsula is bounded by the Massachusetts Bay, and the westerly, or landward side, is bounded by Scituate Harbor. On either end of the peninsula, in a north-
On the ocean side of Edward Foster Road (facing Massachusetts Bay), a concrete seawall abuts the residential homes between the First Cliff and Second Cliff. The height of the seawall stands consistently at 19.4 feet, with the exception of the seawall abutting both of Doherty’s lots. That portion of the seawall, in the main, stands only 16.5 feet high.
The local building inspector determined that the lots were located in the FPWP district and that, as a consequence, the plaintiff needed to obtain special permits from the board authorizing construction of new residential dwellings on the lots. The FPWP district is an “overlay” zoning district that was established in 1972.
The map that was created is entitled, “Town of Scituate, Massachusetts, Flood Plain and Watershed Protection District, 1972” (map). Section 470.3 of the zoning bylaw provides that “[t]he locations and boundaries of the [FPWP district] shall be as shown on [the map] . . . [and are] made a part of this zoning bylaw.” On the map, the boundaries of the district are indicated by thick dashed lines. Along the dashed lines are references, such as “10 foot contour”
The map was intended to be relevant only for determining the location of the FPWP district.
In April, 2008, the plaintiff applied to the board for the special
Affirming the board’s decision, the Land Court judge heard evidence from neighbors, which he credited, concerning their observations of flooding conditions on the lots,
As relevant here, the judge noted that the zoning bylaw does not define the phrase “subject to flooding.” The judge looked to the ordinary meaning of the phrase as defined in a dictionary in circulation at the time, Webster’s Seventh New Collegiate Dictionary (1967), as well as the stated purposes of the bylaw. He concluded that the phrase is “broad, and encompasses all varieties of water rising and overflowing on normally dry land.” The judge reasoned that, to limit the meaning of the phrase to either solely elevation or surge flooding, as flooding was understood in the 1970s when the FPWP district was established, would frustrate the stated purpose of the district of protecting “the health and safety of persons against those hazards which may result from unsuitable development... in areas subject to flooding.” Therefore, the judge determined that the board permissibly could “import the latest science and technology of flooding!] into its construction of the [bjylaw” and “was not precluded from relying upon the witness testimony that it did, or the presence of FEMA [fjlood [zjones, to establish that the . . . lots are subject to flooding.” The judge went on to determine that the lots are indeed “subject to flooding” within the meaning of the bylaw, and that the board’s decision “was in no way arbitrary, capricious or whimsical, nor was it legally untenable.”
Doherty appealed. In an unpublished order and memorandum pursuant to its rule 1:28, the Appeals Court reversed, concluding that “the board erred in relying on FEMA flood mapping, a standard not permitted by the by-law; thus, the board’s denial
2. Standard of review. “Judicial review of a local zoning board’s denial of a special permit involves a combination of de novo and deferential analyses.” Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 474 (2012) (Shirley Wayside), citing Wendy’s, 454 Mass. at 381. “The trial judge makes his own findings of facts and need not give weight to those the board has found.” Shirley Wayside, supra. See G. L. c. 40A, § 17. “The judge then ‘determines the content and meaning of statutes and by-laws and . . . decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application.’ ” Shirley Wayside, supra, quoting Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 73 (2003). “We accord deference to a local board’s reasonable interpretation of its own zoning bylaw . . . with the caveat that an ‘incorrect interpretation of a statute ... is not entitled to deference (citations omitted).’ ” Shirley Wayside, supra at 475, quoting Atlanticare Med. Ctr. v. Commissioner of the Div. of Med. Assistance, 439 Mass. 1, 6 (2003).
“After determining the facts and clarifying the appropriate legal standards, the judge determines whether the board has applied those standards in an ‘unreasonable, whimsical, capricious or arbitrary’ manner.” Shirley Wayside, supra, quoting Wendy’s, 454 Mass. at 382. “This stage of judicial review ‘involves a highly deferential bow to local control over community planning.’ ” Shirley Wayside, supra, quoting Wendy’s, supra. “The
3. Discussion. As an initial matter, a municipality may validly use its zoning power to restrict development in areas that are prone to flooding. See Turnpike Realty, 362 Mass. at 227-228. “[T]hree basic public policy objectives of restricting use of flood plains have been advanced: (1) the protection of individuals who might choose, despite the flood dangers, to develop or occupy land on a flood plain; (2) the protection of other landowners from damages resulting from the development of a flood plain and the consequent obstruction of the flood flow; [and] (3) the protection of the entire community from individual choices of land use which require subsequent public expenditures for public works and disaster relief.” Id. at 228-229, citing Dunham, Flood Control Via the Police Power, 107 U. Pa. L. Rev. 1098, 1110-1117 (1959). Consistent with these public policy objectives, the stated purposes of the FPWP district bylaw permissibly include: “protecting] the health and safety of persons against those hazards which may result from unsuitable development in . . . areas subject to flooding,” “conserving] the values of lands and buildings in such flood-prone areas,” and “encouraging] the most appropriate and suitable use of the land.”
Pursuant to the bylaw in this case, once land is determined to be located in the FPWP district, as the lots are here, the construction of new residential dwellings requires a special permit pursuant to § 470.9, which in turn requires the applicant to establish that the land is “in fact not subject to flooding.” The phrase, “subject to flooding,” is not defined in the zoning bylaw. As recognized by the parties, the case turns on the meaning of this phrase.
First, a close examination of the map shows that it does not exclusively use contours as district boundaries. The map also marks boundaries using designations such as “50 Feet Behind Wall,” “E Jericho Road,” “Westerly Edge RR Bed,” “South of Curb,” various distances from “Brook,” and “100 Ft. Edge of Pond.” To the extent that the map uses contours as boundaries in some instances, it is by no means in all instances and, more importantly, not on the land on which the lots lie.
Significantly, to limit the phrase, “subject to flooding,” to the
The judge correctly looked to the plain and ordinary meaning of the term “flood” as used in the phrase “subject to flooding” and correctly determined that “flooding” is a broad term. “When a statute does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose.” Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977). “We derive the words’ usual and accepted meanings from sources presumably known to the statute’s enactors, such as their use in other legal contexts and dictionary definitions.” Id. The judge consulted such a source, a Webster’s Dictionary in circulation at the time the FPWP district was created, Webster’s Seventh New Collegiate Dictionary (1967), which defined “flood” as “a rising and overflowing of water especially onto normally dry land.”
A broad meaning of the phrase, “subject to flooding,” encompassing, as the judge explained, “all varieties of water rising and overflowing on normally dry land,” is consistent with three of the stated purposes of the bylaw, namely, “[t]o protect the health and safety of persons against those hazards which
Further, the judge correctly reasoned that the board could, in determining whether the lots were “subject to flooding,” consider testimony of witnesses describing their observations of water on the lots
The provision in § 470.10 of the bylaw does not, as the plaintiff contends, “make[] plain that elevation is to be determinative.” A complete reading of this section provides:
“Whenever an application is made for a building permit on land which the building commissioner[] believes may involve the use of land in the [FPWP district], he or she may require the applicant for such permit to provide as part of such application a plan of the lot on which said building [] is intended to be built, showing elevations of the land contours at one foot intervals, referred mean sea level datum and certified by a registered land surveyor.”
When read in its entirety, the import of this section is to determine whether certain land indeed falls within the district. Here, there is no dispute that the lots are located in the district. If (or once) the land is determined to fall within the district, § 470.9 applies, requiring a special permit.
Our decision in Turnpike Realty does not require a contrary result. In Turnpike Realty, we upheld a bylaw regulating filling and building in a flood plain district. Turnpike Realty, 362 Mass. at 229. We examined a special permit procedure in the bylaw in that case (a procedure nearly identical to the one in this case) that established a special permit procedure relating to land “not subject to flooding or not unsuitable because of drainage conditions.” Id. at 230-231. We stated that the purpose of such a provision was “to prevent injustice resulting from the establishment of zoning districts based on ‘the physical char
Our conclusion does not render the bylaw impermissibly vague. “It is true, of course, that a zoning ordinance or by-law may not be cast in such vague terms that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Fogelman v. Chatham, 15 Mass. App. Ct. 585, 588 (1983), citing O’Connell v. Brockton Bd. of Appeals, 344 Mass. 208, 212 (1962). “But this does not mean that the application of the zoning ordinance or by-law may not validly call for the exercise of judgment ... or require findings of fact to determine whether particular land falls within the regulatory framework established by the ordinance or by-law” (citations omitted). Fogelman v. Chatham, supra at 588-589. The standard to be applied by the board in this case — that the land is “in fact not subject to flooding,” considered together with the general purposes of the FPWP district and the public policy concerns of development in flood plains, and the existence of judicial review — has been determined to be precise. Turnpike Realty, 362 Mass. at 231-232. The standard is not subject to attack for vagueness.
We briefly address some of the plaintiff’s remaining arguments.
Last, the plaintiff’s contention that the board and judge applied the standard — whether the land is “subject to flooding” — in an unreasonable manner is based only on an argument that the standard involves elevation only as noted on the map. Because we reject that argument, the plaintiff’s contention similarly fails. We point out, however, that our review of the record shows that the board did not apply the standard at issue in an “unreasonable, whimsical, capricious or arbitrary” manner. See Shirley Wayside, supra at 475, quoting Wendy’s, supra at 382.
Judgment affirmed.
The plaintiff, Mary Ann Doherty, owns one lot in its entirety and the other in part with a contractual right to acquire the remainder. For purposes of this opinion, we refer to her as the owner of both lots.
The discrepancy in height arose from the financial inability of the plaintiff to pay for the cost of raising the height of the seawall following the “Blizzard of 1978.”
The plaintiff proposed to construct one four-bedroom home on each lot.
An “overlay” district imposes a regulatory scheme on top of an underlying, existing district, often for the purpose of further regulating or restricting certain permitted uses, or to protect a significant resource. See KCI Mgt., Inc. v. Board of Appeal of Boston, 54 Mass. App. Ct. 254, 259 (2002); Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349, 351 & n.5 (2001).
The judge found that, in the early 1970s, the concept of flooding was limited to “surge flooding,” or flooding that occurs when there is a low barometric pressure over the ocean, which in turn causes a bulge or surge in the water where the sea meets the land. The occurrence of this type of flooding is ascertained in terms of land elevation from sea level.
The map indicates that contours are measured from sea level.
According to Kalishes, the land between First Cliff and Second Cliff, namely, the barrier beach peninsula on which the lots are located, was intentionally included in the FPWP district even though portions of land on those lots rise in elevations greater than ten feet.
The “key purpose” of the map was “to give the individual due notice that he may be in a flood zone, and he may have to go through some process to obtain a building permit or to find out that he couldn’t obtain a building permit.”
Section 470.9 of the zoning bylaw provides:
“If any land in the [FPWP district] is proven to the satisfaction of the planning board ... as being in fact not subject to flooding ... for*564 any use otherwise permitted under the applicable provisions of the zoning bylaw, but not specifically listed under Section 400, the planning board may issue a special permit for the proposed use. Such use shall be consistent with all other applicable local bylaws and [S]tate regulations and shall not interfere with the purposes of the [FPWP district] or pose a threat to the public health, safety or welfare.”
One neighbor, for example, testified that, during the “October 1991 Nor’easter,” “tremendous waves” crossed the lots and flooding overtook the road and was so deep that no one could drive through it. This neighbor recalled that during that storm, and storm conditions generally, ocean water travels over the seawall and floods Edward Foster Road. Another neighbor recounted that, after the “Blizzard of 1978,” water completely washed over the lots for three days, leaving over five feet of wet sand covering the road. She testified that the lots flood “roughly three times a year, almost every year.”
The plaintiff acknowledged that during some storms she saw water from the Massachusetts Bay flow across the lots.
During a “hundred year storm,” which is a storm that has a one per cent
Flood water is expected to come from both the Massachusetts Bay and Scituate Harbor.
There is no dispute before us concerning whether the lots are located within the FPWP district. The judge’s finding on the issue is supported by the evidence. The ten-foot contour line on First Cliff and Second Cliff is relevant only to the property encircled on First Cliff and Second Cliff (signifying that those lands within the circles are exempted from the FPWP district). The land outside of those contour lines, including the lots, is included in the FPWP district. Kalishes testified that the lots were intentionally included in the FPWP district and that, on the land comprising the barrier beach peninsula on which the lots were located, “there would be land that’s higher or above or below [and] that’s why you go to the permitting authority to determine whether you[r] lots flood or not.”
The plaintiff contends that the “variant boundary designations” on the map, or designations that differ from a ten-foot contour boundary, are not relevant because they are located in noncoastal areas and regarding those in coastal areas, they “are either proxies for the [ten-foot contour] or are accommodations to political or commercial realities.” Although the plaintiff has provided some evidence to support this contention, it does not, however, change the fact that a ten-foot contour line was not uniformly used on the map or the fact that the lots are located in the FPWP district.
The definition is similar to more current definitions. See, e.g., Webster’s Third New International Dictionary 873 (1993) (defining “flood” as “a rising and overflowing of a body of water that covers land not usually under water”).
Indeed, in preparing the map, Kalishes did not limit the concept of flooding to elevation only. Elevation was a factor, but Kalishes also relied, in part, on the observations of others in determining whether land was “subject to flooding.” As the Land Court judge noted, “[i]t is unlikely that the residents interviewed [as part of preparing the map] understood or were aware of the distinction between surge flooding and other observable instances of water flowing onto normally dry land, when they reported their observations.”
Our construction does not compel a conclusion in a future case that a
Reference
- Full Case Name
- MaryAnn Doherty v. Planning Board of Scituate
- Cited By
- 13 cases
- Status
- Published