Grenier v. ZONING BOARD OF APPEALS OF CHATHAM
| Decision Date | 17 September 2004 |
| Docket Number | No. 02-P-319.,02-P-319. |
| Citation | 62 Mass. App. Ct. 62,814 NE 2d 1154 |
| Parties | DONALD J. GRENIER & others vs. ZONING BOARD OF APPEALS OF CHATHAM & others. |
| Court | Appeals Court of Massachusetts |
Present: PERRETTA, CYPHER, & DOERFER, JJ.
After consolidation, the cases were heard by Richard F. Connon, J.
William F. Riley for the plaintiffs.
Bruce P. Gilmore for the defendants.
Having been denied a residential building permit as well as a permit to build a house and raised septic system on a parcel of land situated in Chatham, the plaintiffs sought review of the actions of the zoning board of appeals of Chatham (board) and the conservation commission of Chatham (commission) as well as a declaration that the defendants' actions constitute an unconstitutional taking of the property in dispute without just compensation. A Superior Court judge affirmed the decisions of the board and the commission and concluded that, on the facts found, the governmental action challenged by the plaintiffs was not a compensable taking. Based upon the judge's detailed and comprehensive findings of fact and conclusions of law and for the reasons set out below, we affirm the judgment.
1. Background. Gove is the present owner of a parcel of land, lot 93, situated on Seagull Road in Chatham. She acquired title to the 1.83-acre lot by devise from her mother's estate in 1975. Lot 93 is also situated in an area designated by the Federal Emergency Management Agency (FEMA) as an area within a "100-year flood plain." As defined by FEMA, a 100-year flood plain is an area subject to inundation by a base flood which, as also defined by FEMA, has a one percent or greater probability of being equaled or exceeded in any given year. More specifically, lot 93 is located within an area designated as "Zone A9, EL 10," that is, an area subject to inundation to an elevation of ten feet during a 100-year flood but not subject to wave action.
In 1985, the zoning by-law was amended to establish areas within the 100-year flood plain as an overlay conservancy district.3 Section IV.A.4 of the zoning by-law expressly prohibits the construction of "a residential dwelling unit" within a conservancy district and, according to the defendants, does not provide for use variances. Uses allowed within the conservancy district include the cultivation and harvesting of shellfish and other marine foods, the manual harvesting of flora, outdoor recreational activities, and the use and improvement of land for agriculture. Special permits can be granted for the construction of boat houses, boat shelters, ramps, stairs, and structures used in conjunction with fishing as well as those used in connection with a marina or boatyard.
Because lot 93 is situated within the 100-year flood plain, it is also a protected area under the town's wetlands protection by-law. That by-law and the regulations promulgated thereunder require that persons seeking to build upon or change the characteristics of protected areas first obtain a permit from the commission. The express purpose of the wetlands by-law "is to protect the wetlands, related water resources and adjoining land . . . by controlling activities deemed . . . to have an impact or cumulative effect upon wetland values, including but not limited to . . . flood control . . . and storm damage prevention." Regulations promulgated pursuant to this by-law specifically noted that the depositing of materials in the flood plain so as to raise the elevation of the land, i.e., "filling," was an activity likely to cause the displacement of floodwaters to other areas of Chatham.
In July, 1998, Gove and the Greniers entered into a purchase and sale agreement for lot 93. Their agreement is contingent upon the Greniers' ability to build a single-family residence on the lot. Based upon that contingency, the Greniers applied to Chatham's department of planning and development for a permit to build a single-family residence on lot 93 and twice applied to the commission for a permit to build a single-family residence with an associated septic system.4
The department of planning and development denied the Greniers' application for the stated reason that the zoning by-law prohibited the construction of a residential building in a conservancy district. The denial of this application was upheld by the board on the same basis. As for their applications before the commission, the commission found that the proposed house, which was to be raised above the flood elevation level on pilings, would not interfere with the movement of floodwaters. However, it also found that the proposed septic system would lie in the flood plain and would be covered over with additional fill that the commission deemed to be "cosmetic." Based on its "long standing policy" of prohibiting "the addition of cosmetic fill to the flood plain" (emphasis added), the commission denied the Greniers' applications.5
Gove and the Greniers then brought an action pursuant to G. L. c. 40A, § 14, claiming that the zoning restrictions constituted a regulatory taking of lot 93, compensable under art. 10 of the Massachusetts Declaration of Rights, and the Fifth Amendment to the United States Constitution. They also brought an action in the nature of certiorari, see G. L. c. 249, § 4, seeking judicial review of the commission's denial of their request for a permit. The two actions were consolidated for trial,6 at the conclusion of which the judge ruled that the Greniers lacked standing to argue that application of the zoning by-law constituted an unconstitutional regulatory taking.
As for Gove's claims, the judge concluded that the prohibition of residential construction set out in the zoning by-law did not constitute a compensable regulatory taking. He concluded that the zoning by-law, as applied to lot 93, was valid because the restrictions it placed on residential development in the flood plain substantially advanced a legitimate State interest that was insufficiently refuted by evidence to show that interference with Gove's economic interests amounted to a regulatory taking.
Gove and the Greniers claim that from 1975 to the present, lot 93 has been located in a district designated for residential use under the town's zoning by-law and that use of the lot for a single-family residence would ordinarily be considered a typical permissible use. They claim that the zoning by-law effects an invalid regulatory taking and that the judge's conclusion to the contrary is unsupported by law. More specifically, they argue that (1) the judge's ruling concerning the economic impact of the zoning by-law was without support in the law; (2) the uses permitted under the zoning by-law are so limited as to compel the conclusion that its application to lot 93 constitutes a categorical taking; and (3) the commission's decision was arbitrary, capricious, and unsupported by substantial evidence.
2. Standing to challenge the zoning by-law. As earlier noted, the judge ruled that the Greniers lacked standing to challenge the zoning by-law on the claim that it effected an unconstitutional regulatory taking. Because the plaintiffs do not challenge this ruling as to the Greniers, we do not consider it. See Mass. R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
As for Gove, the record before us does not show that she sought and was denied a residential building permit. It might, therefore, be said that she too lacks standing on the bases of the doctrines of ripeness and exhaustion of administrative remedies. However, given the unconditional nature of the zoning by-law's prohibitions against erecting a house on lot 93 as well as the board's and the commission's opportunity to consider and apply the zoning by-law to lot 93, we conclude that the question presented, whether a single-family house can be erected on lot 93, is one of law and that any request by Gove to build on lot 93 would have been futile. See Wilson v. Commonwealth, 31 Mass. App. Ct. 757, 766-767, S.C., 413 Mass. 352 (1992); Trust Ins. Co. v. Commissioner of Ins., 48 Mass. App. Ct. 617, 623-624 (2000); Daddario v. Cape Cod Commn., 56 Mass. App. Ct. 764, 770 (2002), cert. denied, 540 U.S. 1005 (2003).
We take up the question whether application of the zoning by-law to lot 93 effects an illegal taking. See Lopes v. Peabody, 417 Mass. 299, 305 (1994) (). In doing so, we accept the judge's findings of fact unless they are shown to be clearly erroneous. However, as stated in Kendall v. Selvaggio, 413 Mass. 619, 621 (1992), "the `clearly erroneous' standard of appellate review does not protect findings of fact or conclusions based on incorrect legal standards." See Johnson v. Modern Continental Constr. Co., 49 Mass. App. Ct. 545, 547 (2000). On that basis, we next set out the legal standards to be applied to Gove's challenge to the application of the by-law to her property.
3. The law of regulatory takings. Gove has failed to specify on appeal whether her argument is based on the Fifth Amendment to the United States Constitution or art. 10 of the Massachusetts Declaration of Rights. She also has failed to make any argument that art. 10 provides greater protection than the Fifth Amendment. We, therefore, confine our review to principles of Federal law. See Steinbergh v. Cambridge, 413 Mass. 736, 738 (1992), cert. denied, 508 U.S. 909 (1993); Greenfield Country Estates Tenants Assn., Inc. v. Deep, 423 Mass. 81, 85 n.12 (1996).
It is an established principle of law that a governmental regulation which unduly burdens private property interests can amount to a taking. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415-416 (1922); Aronson v. Sharon, 346 Mass. 598, 604 (1964). A regulation may effect a taking "if it fails substantially to advance a legitimate...
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