MacGibbon v. Board of Appeals of Duxbury

• Decision Date: 25 June 1964
• Citation: 347 Mass. 690,200 N.E.2d 254
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Bruce MacGIBBON et al. v. BOARD OF APPEALS OF DUXBURY.

Page 254

200 N.E.2d 254

347 Mass. 690

Bruce MacGIBBON et al. v. BOARD OF APPEALS OF DUXBURY.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued May 7, 1964.

Decided June 25, 1964.

Seymour Bluhm, Plymouth, for plaintiffs.

Robert J. Geogan, Town Counsel, for defendant.

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

SPIEGEL, Justice.

This is a bill in equity under G.L. c. 40A, § 21, by way of an appeal from a decision of the board of appeals of the town of Duxbury (the town) denying the plaintiffs a permit (the permit) 'to fill and/or excavate' certain shore lots. The case is here on appeal from a decree of the Superior Court that the decision of the board did not exceed its authority and that no modification of its decision was required.

On March 12, 1960, the town adopted an amendment to its zoning by-law which stated: '[The by-law] is also for the purpose of protecting and preserving from despoliation the natural features and resources of the [t]own, such as salt marshes, wetlands, brooks, and ponds. No obstruction of streams, tidal rivers, and no excavation or filling of any marsh, wetlands, or bog shall be done without proper authorization by a special permit issued by the [b]oard of [a]ppeals.' Pursuant to this amendment, on September 27, 1962, the plaintiffs applied for the permit, and in a decision dated November 9, 1962, the permit was refused. The decision states: '[The plaintiffs] have presented no evidence that * * * [their] land could, in fact, be filled and used for residential purposes without constituting a hazard to the health of the community. The marsh * * * [on which the plaintiffs' lots are located] is below the water level at high water * * *. As Duxbury has no system of sanitary sewage disposal, in the opinion of the [b]oard this land is not suitable for installation of a cesspool or septic tank because little or no drainage will be provided for a leaching field. An inadequate leaching field will cause a direct health menace, not only to the occupants of the land in question, but to the entire surrounding residential area.'

The petition to the board was for a permit '[t]o fill and/or excavate any and all portions of the * * * [plaintiffs'] lots in order to comply with the minimum requirements of the Board of Health of the Town of Duxbury in regard to height of land above mean high water level and drainage regulations as prerequisite to said Board's approval of the sites necessary for the issuance of Building Permits.' This was not a petition for a building permit, which presumably would have to be requested initially from the building inspector pursuant to the town's building code. ¹ See Caputo v. Board of Appeals of Somerville, 330 Mass. 107, 110, 111 N.E.2d 674. Nevertheless, the reasons for the denial of the permit given in the board's decision seem relevant primarily to the health hazards that would result if the land should be 'filled and used for residential purposes' (emphasis supplied). In so far as the permit is sought for the purpose of filling and excavating land, it ought not...