Doherty v. Planning Bd. of Scituate

• Decision Date: 21 March 2014
• Citation: 467 Mass. 560,5 N.E.3d 1231
• Parties: MaryAnn DOHERTY v. PLANNING BOARD OF SCITUATE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

467 Mass. 560

5 N.E.3d 1231

MaryAnn DOHERTY

v.PLANNING BOARD OF SCITUATE.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 3, 2013.

Decided March 21, 2014.

Brandon H. Moss, Quincy, for the defendant.

Leonard M. Singer, Boston, (Michael D. Bliss with him) for the plaintiff.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

IRELAND, C.J.

The plaintiff, MaryAnn Doherty, owner of two adjacent unimproved lots on a barrier beach peninsula in the town of Scituate (town),¹ applied for special permits from the town's planning board (board) to construct new residential dwellings on the lots, which are located in a flood plain and watershed protection district (FPWP district). The board denied the applications, concluding that Doherty had not demonstrated that her lots were “not subject to flooding” within the meaning of § 470.9 of the zoning bylaw. Doherty sought review pursuant to G.L. c. 40A, § 17; after a bench trial, a Land Court judge entered judgment affirming the board's decision and dismissing Doherty's complaint. In an unpublished order and memorandum pursuant to its rule 1:28, the Appeals Court reversed, concluding that the phrase “subject to flooding” has a specific meaning derived from a map setting forth the FPWP district and based only on elevation from sea level. We granted the board's application for further appellate review. Because we conclude that the Appeals Court adopted an incorrect definition of the phrase “subject to flooding,” and we agree with the meaning adopted by the Land Court judge, we affirm the judgment entered by him.

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, 909 N.E.2d 1161 (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-south direction, are the geographic areas known as First Cliff and Second Cliff. The two lots lie on a strip of land between and connecting these cliffs.

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.² The single-family dwellings proposed by the plaintiff ³ would comply with all setback and other dimensional requirements, and would be constructed on pilings. The land under the footprints of the dwellings ranges in elevation from fourteen to sixteen feet above sea level.

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 1972.⁴ At that time, the local conservation commission retained the services of Vincent John Kalishes, III (Kalishes), and Bill Richardson (Richardson) to create the FPWP district, which was intended “to protect the town's coastal resources and watersheds.” Kalishes and Richardson were to do “research to establish where those areas [flood plains and watersheds] are and to identify them and then to come up with some type of mapping system that could be reproduced on the ground by a surveyor or engineer.” According to Kalishes, “the scope of the available data at that time was limited, but we got together what we could from the National Weather service and local knowledge and ... we had meetings in the neighborhoods to get information about where certain lands might be and what had been impacted.” Thereafter, they developed a map that showed these flood areas.⁵

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” ⁶ and “50 feet behind sea wall.” The dashed lines do not follow lot lines, but instead follow natural profiles of the land and other permanent boundaries. The “[m]ap shows the boundary of the [FPWP district] encircling the areas of First and Second Cliff at an elevation of ten feet, placing the encircled area outside the [d]istrict, while placing the remainder of the barrier beach peninsula [and the lots] within the [d]istrict.” ⁷

The map was intended to be relevant only for determining the location of the FPWP district.⁸ The construction of a new residential dwelling on land located in the FPWP district is prohibited unless a special permit is obtained. To obtain a special permit, § 470.9 of the zoning bylaw requires an applicant to demonstrate that the land on which the construction is proposed is “in fact not subject to flooding.” ⁹

In April, 2008, the plaintiff applied to the board for the special permits. The board conducted three days of public hearings. At the hearings, several neighborhood residents described flooding conditions on the lots during various storms, including the “Blizzard of 1978” and “the October 1991 Nor'easter.” Also mentioned was the existence of the Federal Emergency Management Agency's (FEMA) flood zones and there was discussion regarding “whether information from FEMA should be used in the decision making process.” In its decision, the board noted that a majority of its members “agreed [that] a substantial amount of water would be present on the site during flood events.” The board denied the plaintiff's application, concluding that the sites “do not meet the criteria for Section 470.9,” i.e., the plaintiff had not established that the lots were “in fact not subject to flooding” within the meaning of § 470.9.

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,^10,11 and heard expert testimony from both parties concerning the location of the lots in FEMA flood zones. The judge found that FEMA's knowledge of flooding today is based on greater technological and scientific advancements than were available in the early 1970s. Based on these advances, FEMA has recognized and defined three flood zones: a velocity zone, an overwash zone, and an “AE” zone. ¹² Each of these flood zones is present on both lots in varying degrees such that, in the event of a “hundred year storm,” see note 12, supra, significant flooding with wave action consisting of waves at least less than three feet in height, can be expected on the lots.¹³ The FEMA flood zones, however, postdate the creation of the map.

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 [b]ylaw” and “was not precluded from relying upon the witness testimony that it did, or the presence of FEMA [f]lood [z]ones, 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 was based on a legally untenable ground.” The Appeals Court determined that the map alone identifies and defines the land that is “subject to flooding,” and that the phrase “subject to flooding” encompasses only the meaning that existed in 1972 when the bylaw was amended to establish the FPWP district. That meaning involved a concept of flooding that was predicated solely on elevation. In support of its conclusion, the Appeals Court cited Turnpike Realty Co. v. Dedham, 362 Mass. 221, 284 N.E.2d 891 (1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 908, 34 L.Ed.2d 689 (1973)( Turnpike Realty ), for the proposition that the meaning of the phrase “subject to flooding” in the zoning bylaw “is found in the 1972 map.” The Appeals Court went on to conclude that the board wrongfully denied the special permits.

2. Standard...