Golden v. Board of Selectmen of Falmouth

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before TAURO; KIRK
• Citation: 265 N.E.2d 573,358 Mass. 519
• Decision Date: 30 December 1970
• Parties: , 2 ERC 1156, 1 Envtl. L. Rep. 20,095 Irwin M. GOLDEN v. BOARD OF SELECTMEN OF FALMOUTH.

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265 N.E.2d 573 358 Mass. 519, 2 ERC 1156, 1 Envtl.
L. Rep. 20,095 Irwin M. GOLDEN
v.
BOARD OF SELECTMEN OF FALMOUTH. Supreme Judicial Court of Massachusetts, Barnstable. Argued Nov. 4, 1970.
Decided Dec. 30, 1970.

[358 Mass. 520] Robert Clayton, Boston, for defendant.

George T. Shaw, Boston, for Conservation Law Foundation, Inc., amicus curiae, submitted a brief.

Before [358 Mass. 519] TAURO, C.J., and SPALDING, KIRK, REARDON and QUIRICO, JJ.

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[358 Mass. 520] KIRK, Justice.

This is a bill in equity brought by the plaintiff against the board of selectmen of the town of Falmouth (the board). The plaintiff is the owner of a tract of land in Falmouth extending from the edge of a pond through a tidal marsh to upland property. In May of 1967, pursuant to § 36 of the Falmouth zoning by-law, he applied to the board for a special permit to construct in the tidal marsh a twenty-four foot wide channel in which to dock his two boats. Under § 36 it is the board which is authorized to grant such a permit. See G.L. c. 40A, § 4. He also filed with the Director of Marine Fisheries, pursuant to G.L. c. 130, § 27A (the Act), a notice of his intention to construct the channel and a plan of the proposed project. The Director of Marine Fisheries issued an 'Order of Conditions' authorizing the project. Thereafter, the board voted to deny the special permit to excavate in the tidal marsh.

The plaintiff then brought this bill in the Superior Court by way of appeal from the board's decision. The judge, [358 Mass. 521] after a hearing, ruled that the board exceeded its authority in refusing to grant the plaintiff the special permit. The final decree annulled the board's decision and ordered the board to issue the permit subject to the shall be borne by the person filing Fisheries.

The board appeals from the final decree. The evidence is reported. The judge made findings of fact and rulings of law. The plaintiff did not submit a brief. Counsel for Conservation Law Foundation, Inc., amicus curiae, submitted a brief. The only issue presented by the appeal is whether the Act deprives the board, acting under a local zoning by-law, of the power to forbid the filling, dredging, or excavating of coastal wetlands in the town despite the approval of the undertaking by the Director of Marine Fisheries acting under the Act.

The purpose of the Act is to regulate the removal, filling, and dredging of areas bordering on coastal waters. ¹ It has been held to be valid legislative enactment. Commissioner of Natural Resources v. S. Volpe & Co. Inc., 349 Mass. 104, 107, 206 N.E.2d 666.

[358 Mass. 522] 1. The construing the Act the judge ruled that the board acting pursuant to the

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Act had the authority only to make recommendations to the appropriate State agencies and had no power to prevent the plaintiff from making the channel once the Director of Marine Fisheries approved it. ² We read this ruling to be entirely based on the proposition that the Act in and of itself does not permit boards of selectmen to regulate local coastal wetlands once regulation by the director has been imposed. The ruling is framed within the context of the Act and it considers only whether the Director of Marine Fisheries or the board has the ultimate authority under the Act. We do not so view the case. The board made its decision pursuant to § 36 of the zoning by-law, not pursuant to the Act. ³

2. Section 36 of the Falmouth zoning by-law is a permissible[358 Mass. 523] exercise of municipal zoning power. ⁴ MacGibbon v. Board of Appeals of Duxbury, Mass., 255 N.E.2d 347. ^a In the MacGibbon case, this court held that a zoning by-law having the same purposes as § 36, the one before us (protecting the town's natural resources along its coastal areas) and similar operative provisions (requiring a permit prior to

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obstructing streams or tidal rivers or dredging and filling wetlands and marsh areas), was expressly authorized by the Zoning Enabling Act, G.L. c. 40A, § 2. The board, therefore, had the power to deny the permit as long as its decision was not 'based on a legally untenable ground, or * * * (was not) unreasonable, whimsical, capricious or arbitrary.' MacGibbon, supra, at 84, 255 N.E.2d at 350, Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275, 277, 244 N.E.2d 311. There is nothing before us showing that the board's decision did not comply with this standard.

3. Having upheld the validity of § 36 we turn to the question whether in enacting the Act the Legislature intended to repeal existing laws relating to the same subject. We find nothing in the language of the Act expressly, impliedly or inferentially suggesting that municipalities are deprived or preempted from exercising regulatory control of wetlands situated therein by means of zoning by-laws. The Act establishes a regulatory machinery at the State level in which local boards of selectmen, the Department of Public Works and the Director of Marine Fisheries each has a role. There is no express reference in the statute that municipalities may or may not otherwise undertake wetlands control independent of the Act.

[358 Mass. 524] Similarly, we do not construe the Act as impliedly precluding regulation by municipalities. Although it is an established rule of statutory construction that '(T)he enactment of a statute which seems to have been intended to...