Fogelman v. Town of Chatham

• Decision Date: 05 April 1983
• Parties: Robert F. FOGELMAN v. TOWN OF CHATHAM.
• Court: Appeals Court of Massachusetts

Page 1112

446 N.E.2d 1112

15 Mass.App.Ct. 585

Robert F. FOGELMAN v. TOWN OF CHATHAM.

Appeals Court of Massachusetts,

Barnstable.

Argued May 14, 1982.

Decided April 5, 1983.

Frank J. Shealey, Town Counsel, Chatham, for defendant.

William F. Riley, Chatham, for plaintiff.

Before ARMSTRONG, ROSE and GREANEY, JJ.

ARMSTRONG, Justice.

The plaintiff was denied a permit to build a guest house on a particular location on his lot bordering Ryder's Cove in Chatham. The building inspector and the board of appeals relied on a provision of the zoning by-law which prohibited building within twenty-five feet of wetland as defined in the by-law. The plaintiff brought an action in the Land Court under G.L. c. 240, § 14A, and c. 185, § 1(j 1/2), to determine the scope and validity of the wetland setback provision as applied to his property. ¹ The judge ruled that the twenty-five foot setback requirement did not apply to the plaintiff's land, which concededly contains wetland either under or within twenty-five feet of the proposed building location, ² because the plaintiff's land was not designated on the town's "Conservancy District" map. The case before us is on the town's appeal.

The decision in the Land Court focused on the difficulty of applying the definition of "inland wetlands" appearing in § 1.63 of the by-law: "Any marsh, meadow or swamp bordering on inland waters or that portion of any bank which touches any inland waters, or any marsh, meadow or swamp subject to flooding by fresh water [or any areas of peat, muck or natural growth indicative of wetland]." The brackets, inserted by us, mark the portion of the definition the judge held so vague as to give rise to constitutional problems, pointing out that three trained botanists, applying the natural-growth test, had determined three different wetlands boundary lines, which, although they converged at some points, appear to have diverged by as much as fifty feet at others. Citing O'Connell v. Brockton Bd. of Appeals, 344 Mass. 208, 181 N.E.2d 800 (1962), and Castle Estates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. 329, 182 N.E.2d 540 (1962), the judge held that portion of the by-law to fail the test that (in her words) "[a zoning by-law] must be framed in such a way that the standards to be met are clear both to the regulatory authority and to those subject to its jurisdiction." The uncertainty could be cured, she ruled, if the wetlands which form the basis of the twenty-five foot setback requirement were limited to those shown on the conservancy district map on file in the town clerk's office. The conservancy district, an overlay district which is supposed to include all "inland wetlands" as defined in § 1.63, as well as some other categories of terrain, ³ did not as drawn on the relevant map include the plaintiff's land.

It is not clear that the interpretation adopted by the judge could succeed in avoiding a problem of vagueness in the § 1.63 definition because the conservancy district is itself defined by denotation, one of the constituents being "wetlands as defined in § 1.63." See note 3, supra. But for the reasons which follow we think that whatever vagueness is exhibited by the definition is not of the constitutionally disabling type.

A zoning by-law starts with a presumption of constitutional validity. Caires v. Building Commr. of Hingham, 323 Mass. 589, 594-595, 83 N.E.2d 550 (1949); Doliner v. Town Clerk of Millis, 343 Mass. 10, 14, 175 N.E.2d 925 (1961). In general it will be held valid if there is a substantial relation between it and the furtherance of any of the general objectives of the Zoning Act. Sinn v. Selectmen of Acton, 357 Mass. 606, 609, 259 N.E.2d 557 (1970). It is not questioned that the Zoning Act makes protection of wetlands a valid objective of local zoning by-laws. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 636-637, 255 N.E.2d 347 (1970). Golden v. Selectmen of Falmouth, 358 Mass. 519, 522-523, 265 N.E.2d 573 (1970). Turnpike Realty Co. v. Dedham, 362 Mass. 221, 233, 284 N.E.2d 891 (1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 908, 34 L.Ed.2d 689 (1973). S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass.App. 357, 360, 348 N.E.2d 807 (1976).

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. O'Connell v. Brockton Bd. of Appeals, 344 Mass. at 212, 181 N.E.2d 800. But this does not mean that the application of the zoning ordinance or by-law may not validly call for the exercise of judgment (see Zaltman v. Board of Appeals of Stoneham, 357 Mass. 482, 483-485, 258 N.E.2d 565 [1970]; S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass.App. at 362, 348 N.E.2d 807) or require findings of fact to determine whether particular land falls within the regulatory framework established by the ordinance or by-law. See, e.g., Turnpike Realty Co. v. Dedham, 362 Mass. at 234, 284 N.E.2d 891 (whether land was "subject to seasonal or periodic flooding" and thus properly included in a flood plain district).

A law is not unconstitutionally vague simply because it presents some questions as to its application in particular instances. Courts and administrative boards draw lines and resolve ambiguities every day. See North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432, ---, 416 N.E.2d 934 (1981). The zoning provision held unconstitutionally vague in O'Connell v. Brockton Bd. of Appeals, supra, was unusual, in that it offered no clue as to what concept the city's legislative body may have had in mind in adopting it. (The provision purported to determine a building setback line within city blocks by reference to existing buildings, but the manner of determining the line was shrouded in obscurity.) A recent analog was Commonwealth v. Gagnon, 387 Mass. 567, 441 N.E.2d 753, Id., 387 Mass. 768, 443 N.E.2d 407 (1982), which held the statutorily prescribed punishment for distribution of heroin unconstitutionally vague, because one could only speculate as to the punishment the Legislature may have intended by the impenetrable language employed to express it. Interstices are filled in routinely, lines are drawn, and simple ambiguities resolved; but where the core concept is indecipherable the court will not supply one of its own creation. Id. at 772, 443 N.E.2d 407. Cases of that type are unusual, ⁴ and this is not one of them. The definition of wetland in terms of natural growth, while not self-explanatory to most laymen, has respected antecedents in key definitions in the Commonwealth's Wetlands Protection Act, G.L. c. 131, § 40, a law referred to several times in the provisions of the town by-law relating to the conservancy district and which may justifiably be used to supply explicit standards for applying the by-law's phrase, "natural growth indicative of wetland." See Rutland v. Fife, 11 Mass.App. 341, --- n. 6, 416 N.E.2d 518 (1981), Id., 385 Mass. 1010, 433 N.E.2d 424 (1981); Farrugia v. Board of Appeals of Marshfield, 14 Mass.App. 720, 722, 442 N.E.2d 1161 (1982).

The plaintiff mistakenly relies on Castle Estates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. 329, 334, 182 N.E.2d 540 (1962); Chira v. Planning Bd. of Tisbury, 3 Mass.App. 433, 438, 333 N.E.2d 204 (1975), and Canter v. Planning Bd. of Westborough, 4 Mass.App. 306, 308-309, 347 N.E.2d 691 (1976). Those cases dealt with regulations of planning boards under the Subdivision Control Law, and applied a standard ("comprehensive, reasonably definite, and carefully drafted, so that owners may know in advance what is or may be required of them and what standards and procedures will be applied to them...", Castle Estates, Inc. v. Park & Planning Bd. of Medfield, supra, 344 Mass. at 334, 182 N.E.2d 540) that is held to invalidate regulations which are not definite in application and which leave substantial discretion to the planning board. ⁵ The standard of specificity required of planning board regulations, having its origin in the legislative history of the Subdivision Control Law (as to which see Daley Constr. Co. v. Planning Bd. of Randolph, 340 Mass. 149, 153-155, 163 N.E.2d 27 [1959]; Pieper v. Planning Bd. of Southborough, 340 Mass. 157, 162-164, 163 N.E.2d 14 [1959] ), has never been applied to zoning ordinances and by-laws. The latter are acts of legislative bodies of cities and towns and are more properly and generally held to the standards applicable to acts of the General Court. As to these it is enough if a general policy is stated with reasonable clarity; the detailed application of that policy to particular fact situations may appropriately be left to administrative bodies and the courts. Compare MacGibbon v. Board of Appeals of Duxbury, 356 Mass. at 638 255 N.E.2d 347. The definition of inland wetlands in § 1.63 complies with such a standard and is not subject to attack for vagueness.

There remains the question whether the conclusion reached by the judge is required as matter of construction of the setback provision of the by-law. The setback requirement is found in appendix II of the by-law, the table which sets out the dimensional requirements applicable to buildings in the various zoning districts (including lot size, frontage, frontyard, sideyard, and wetlands setbacks, maximum lot coverage, and maximum building heights). The relevant column is labeled, "Min. Bldg. Setbacks (in feet), Fresh & Saltwater and Wetlands", and explanatory notes placed after "Fresh" and after "Wetlands" both state, in relevant part, "Salt water shall be mean high water level; wetland shall be as described in Section 3.44 paragraphs 1 and 2, and defined in Section 1.63."

The two paragraphs of section 3.44, reproduced in note 3, supra, set out the method whereby the boundary lines of the conservancy district are to be fixed. With respect to lands bordering salt water, the boundary line is drawn on a plane...