Commissioner of Natural Resources v. S. Volpe & Co.

• Decision Date: 26 April 1965
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMISSIONER OF NATURAL RESOURCES et al. v. S. VOLPE & CO., Inc.

Page 666

206 N.E.2d 666

349 Mass. 104

COMMISSIONER OF NATURAL RESOURCES et al. v. S. VOLPE & CO., Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 9, 1964.

Decided April 26, 1965.

Herman Snyder, Boston (Philip Markell, Boston, with him), for defendant.

John E. Sullivan, Asst. Atty. Gen., for plaintiffs.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK and REARDON, JJ.

WILKINS, Chief, Justice.

The Commissioner of Natural Resources and the Director of Marine Fisheries bring this bill in equity against S. Volpe & Co., Inc., a corporation of Massachusetts, to enjoin the defendant 'from placing any further fill on Broad Marsh in the Town of Wareham' in violation of a condition imposed by the commissioner, and to order the defendant 'to remove all fill placed on and in Broad Marsh' in violation of that condition. After a hearing a final decree was entered in which the defendant was enjoined and ordered accordingly. The defendant appealed. The judge made a report of the material facts found by him, from which, unless otherwise stated, are taken the facts in this opinion. G.L. c. 214, § 23 (as amended through St.1947, c. 365, § 2). The evidence is reported.

Broad Marsh is located westerly of Sunset Cove off Onset Bay in the coastal waters of Wareham. A tidal creek known as Broad Marsh Creek flows through the northerly portion of the marsh into Squaw's Hole, the northwestern end of Sunset Cove. The tide flows through mosquito control ditches in the marsh, at times flooding it.

In 1960 the defendant acquired a parcel of land containing 49.4 acres within Broad Marsh, which covers a total of 78 acres more or less. On October 3, 1963, as alleged in the bill, admitted in the answer, and found by the judge, the defendant gave written notice pursuant to G.L. c. 130, § 27A (inserted by St.1963, c. 426), ¹ of 'its intention to dredge a channel and basin into said Broad Marsh in connection with a marina to be constructed adjacent thereto at some furture date.' This finding is accurate as far as it goes, but, as we ourselves find, the channel, basin, and marina were incidental to the defendant's main project of filling the marsh for the construction of houses with water rights for boating.

On October 9, 1963, the board of selectment of Wareham, pursuant to § 27A, conducted a hearing on the defendant's application. At the hearing the plaintiffs requested from the defendant a detailed plan of the proposed work. On October 21 this was furnished. Thereafter the director notified the defendant 'that in the interest of protecting marine fisheries and maintaining the ecological components of this estuarine complex in their present protective form' 'no fill of any type be placed upon that area known as Broad Marsh.' The director did not, and does not now, object to the dredging of the channel and basin.

The defendant disputed that the condition contained in this notice was authorized by § 27A, and ignoring the director's notification, commenced filling Broad Marsh and continued doing so until temporarily enjoined on January 20, 1964. The local authorities, the State Department of Public Works, with reference to G.L. c. 91, § 30, § 30A (inserted by St.1950, c. 214), and the Secretary of the Army acting through the Corps of Engineers under 33 U.S.C. § 403 (1958) have all approved the project.

The trial judge concluded (A) that the restriction of 'no fill' is a condition authorized by § 27A; (B) that Broad Marsh is a 'saltmarsh' necessary to preserve and protect marine fisheries; (C) that § 27A is valid; and (D) that the 'condition' imposed is not an unlawful taking entitling the defendant to compensation.

In support of his general findings (A) and (B) the judge found the following 'The important biological significance of Broad Marsh is its nutrient contribution to the shellfish and other fishery resources of the Sunset Cove--Onset Bay area. The two most conspicuous plants of Broad Marsh are the cordgrasses, Spartina patens and Spartina Alterniflora. As these plants die and decay, large amounts of phosphates and nitrates are released into the adjacent waters. These nutrients are essential for the growth of microscopic plants and other micro-organisms, which in turn are the primary source of nutrition for shellfish as well as the young fish and crustaceans.' '[T]he nutrients derived from Broad Marsh, and, in particular, the portion thereof intended to be filled by the * * * [defendant], play an important and integral part in sustaining the life of the shellfish and finfish in the areas adjacent thereto. * * * Without these nutrients untoward damage will result to the marine fisheries which depend on the productivity of the adjacent marsh for their sustenance.' We cannot pronounce these findings plainly wrong. Two experts for the plaintiff have provided supporting testimony.

As to the trial judge's finding (C), the protection of marine fisheries is undoubtedly a public purpose for which § 27A was properly enacted. The Legislature clearly has power to protect and preserve the fish and game of the Commonwealth. Commonwealth v. Gilbert, 160 Mass. 157, 160, 35 N.E. 454. Commonwealth v. Sisson, 189 Mass. 247, 251, 75 N.E. 619. Lyman v. Commissioners on Fisheries & Game, 211 Mass. 10, 11-12, 97 N.E. 66. See Lawton v. Steele, 152 U.S. 133, 138-139. To this end, once a policy has been determined, its execution may be delegated to an appropriate public officer or board. Commonwealth v. Sisson, supra, 189 Mass. 252, 75 N.E. 619. Commonwealth v. Town of Hudson, 315 Mass. 335, 341, 52 N.E.2d 566. Commonwealth v. Diaz, 326 Mass. 525, 527, 95 N.E.2d 666.

This is not the whole matter, however. A crucial issue is whether, notwithstanding the meritorious character of the regulation, there has been such a deprivation of the practical uses of a landowner's property as to be the equivalent of a taking without compensation. Mile Rd. Corp. v. Boston, 345 Mass. 379, 383, 189 N.E.2d 826. See Goldblatt v. Hempstead, 369 U.S. 590, 592-594, 82 S.Ct. 987, 8 L.Ed.2d 130.

The trial judge recognized the existence of this question, but the narrow finding of the scope of the project above referred to led to other findings which are inapplicable to the realities of the case and must be disregarded as lacking support in the evidence. Thus he found that the plaintiffs have not placed an absolute restraint on the defendant in imposing the condition prohibiting filling Broad Marsh; that the condition imposed relates only to the filling of Broad Marsh and does not completely restrain the defendant's commercial enterprise, which may be conducted and completed by alternative methods; that the defendant is not prevented from dredging and transporting the dredged material to any location other than Broad Marsh, thus causing no damage to marine fisheries; that the defendant may dredge a greater distance through Broad Marsh to upland property which it owns and where no significant nutrient values necessary to protect marine fisheries are extant; that the condition imposed by the director is reasonable; and that '[s]imply stated, he desires the * * * [defendant] to locate its proposed marina, yacht club and recreational center shoreward of Broad Marsh and to place no fill on the said marsh.'

The question is analogous to that which arises when the validity of a zoning ordinance or by-law is considered. Whether there is a reasonable interference with a landowner's rights undertaken in the exercise of the police power for the public benefit or a deprivation of private property without compensation often depends upon the facts of the particular case. Pittsfield v. Oleksak, 313 Mass. 553, 555, 47 N.E.2d 930. Aronson v. Sharon, 346 Mass. 598, 603, 195 N.E.2d 341. This court has often held that on the facts presented in a given case a regulation achieves no valid public benefit and also so restricts the use of property as to constitute a taking without compensation. Barney & Carey Co. v. Milton, 324 Mass. 440, 445, 87 N.E.2d 9. Gem Properties, Inc. v. Board of Appeals of Milton, 341 Mass. 99, 105-106, 167 N.E.2d 315. Jenckes v. Building Commr. of Brookline, 341 Mass. 162, 166, 167 N.E.2d 757. See 122 Main St. Corp. v. Brockton, 323 Mass. 646, 648-649, 84 N.E.2d 13, 8 A.L.R.2d 955. Aronson v. Sharon, 346 Mass. 598, 603, 195 N.E.2d 341.

Two zoning cases in other jurisdictions may have pertinency. In Morris County Land Improvement Co. v. Township of Parsippany-Troy Hills, 40 N.J. 539, 193 A.2d 232, the municipality had placed the plaintiff's swamp property in a floodwater detention basin. At pages 556-557, 193 A.2d at page 242, it was said, 'We cannot agree with the trial court's thesis that, despite the prime public purpose of the zone regulations, they are valid because they represent a reasonable local exercise of the police power in view of the nature of the area and because the presumption of validity was not overcome. In our opinion the provisions are clearly far too restrictive and as such are constitutionally unreasonable and confiscatory.' In Dooley v. Town Plan & Zoning Commn., 151 Conn. 304, 197 A.2d 770, the facts were similar. The plaintiffs were aggrieved landowners. The town of Fairfield amended its zoning regulations to create a new zone called 'flood plain district,' and to forbid excavation, filling, and removal of soil, earth, or gravel subject only to a special exception. At pp. 311-312, 197 A.2d pp. 773-774, it was said, 'There can be no doubt that, from the standpoint of private ownership, the change of zone to flood plain district froze the area into a practically unusable state. The uses which are presently permitted in the new zone place such limitations on the area that the enforcement of the regulation amounts, in effect, to a practical confiscation of the land. * * * The plaintiffs have...