MacGibbon v. Board of Appeals of Duxbury

• Citation: 369 Mass. 512,340 N.E.2d 487
• Parties: , 6 Envtl. L. Rep. 20,444 Bruce MacGIBBON et al. v. BOARD OF APPEALS OF DUXBURY.
• Decision Date: 09 January 1976
• Court: United States State Supreme Judicial Court of Massachusetts

Page 487

340 N.E.2d 487

369 Mass. 512, 6 Envtl. L. Rep. 20,444

Bruce MacGIBBON et al.

v. BOARD OF APPEALS OF DUXBURY.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Oct. 7, 1975.

Decided Jan. 9, 1976.

Bruce MacGibbon pro se for plaintiffs.

Donald L. Connors, Town Counsel, Boston, for Bd. of Appeals of Duxbury.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

BRAUCHER, Justice.

The plaintiffs appeal for the third time from a denial by the board of appeals (board) of the town of Duxbury (town) of a special permit to excavate and fill certain portions of their coastal marshland. MacGibbon v. Board of Appeals of Duxbury, 347 Mass. 690, 200 N.E.2d 254 (1964) (MacGibbon I). MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 255 N.E.2d 347 (1970) (MacGibbon II). For the third time we hold that the decision of the board must be annulled. This time the board is to be directed to grant the permit applied for, subject to appropriate conditions and safeguards to be specified by the board for the sole purpose of substantially decreasing erosion of the fill and adjoining land.

In 1960 the town amended its zoning by-law by adding the following provision: '(The by-law) is also for the purpose of protecting and preserving from despoliation the natural features and resources of the town, such as salt marshes, wetlands, brooks and ponds. No obstruction of streams or tidal rivers and no excavation or filling of any marsh, wetland or bog shall be done without proper authorization by a special permit issued by the Board of Appeals.' Section 8(d) of the by-law provided: 'The Board of Appeals may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the by-law in harmony with their general purpose and intent, and in accordance with the specified rules contained in this by-law.' ¹

In 1961 the plaintiffs acquired some seven acres of tidal marsh for $1,000. The judge found that the bulk of the plaintiffs' land is at or just barely above mean high water. In 1962 they applied for a special permit 'to fill and/or excavate' their land. The permit was denied on the ground that the land was unsuitable for residential construction or for the installation of cesspools and septic tanks. In MacGibbon I we ordered that the board's decision be annulled on the ground that the plaintiffs were seeking a permit to fill or excavate, not a building permit, and that the board's reasons seemed relevant primarily to residential use. 347 Mass. at 692, 200 N.E.2d 254.

The plaintiffs then limited their application to a portion of their land, comprising four lots of about 10,000 square feet each, and in 1966 the board again denied their application, this time on the ground that permits were not intended to be used on marshland on the waterfront. In MacGibbon II we again ordered that the board's decision be annulled. We ruled: (1) There had been no compliance with our directive in MacGibbon I that ". . . the facts relevant to the denial of the plaintiffs' petition to excavate and fill must be stated." 356 Mass. at 639, 255 N.E.2d at 351. (2) The board erred in interpreting the by-law to exclude coastal wetlands from the provision for special permits. Id. at 639--640, 255 N.E.2d 347. (3) 'The preservation of privately owned land in its natural, unspoiled state for the enjoyment and benefit of the public by preventing the owner from using it for any practical purpose is not within the scope and limits of any power or authority delegated to municipalities under the Zoning Enabling Act.' Id. at 640--641, 255 N.E.2d at 351.

The board held a third hearing on September 24, 1973, and again denied the application. On appeal, a judge of the Superior Court ruled that the board's decision was not 'shown to be based on a legally untenable ground, nor was its exercise of discretion shown to be unreasonable, whimsical, arbitrary, capricious, nor based on pretexts or veils for reasons not related to proper purposes.' From a judgment dismissing the plaintiffs' petition, they appealed. A single justice of the Appeals Court allowed the plaintiffs' motion to prosecute the appeal in forma pauperis, and we ordered direct review by this court on our own initiative pursuant to G.L. c. 211A, § 10(A).

The judge found that the plaintiffs' proposal was to excavate and fill the four lots 'and to install a sewage system.' He then made a number of findings leading to the conclusion that they had failed to sustain their burden of proving that their proposal could provide proper sanitary sewage disposal. He made further findings concerning the role of coastal marsh in the ocean food chain and the practical uses to which the property can be put without a permit. Finally, he made findings as to the flooding and erosion of the plaintiffs' lands and adjoining lands. We consider separately (1) the scope of review, (2) sewage, (3) the ocean food chain, (4) flooding and erosion, (5) costs, and (6) disposition of the case.

1. The Scope of Review. We adhere to our decision in MacGibbon II, that the standards for the guidance of the board are adequate, that the board has discretionary power in acting on the permit, and that its decision cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary. 356 Mass. at 638--639, 255 N.E.2d 347. In general, refusal to grant a special permit does not require detailed findings by the board. Brockton Pub. Mkt. Inc. v. Board of Appeals of Sharon, 357 Mass. 783, 260 N.E.2d 222 (1970). But we stand by our decision in MacGibbon I, reaffirmed in MacGibbon II that 'before we can pass on the validity of the board's action, the facts relevant to the denial of the plaintiffs' petition to excavate and fill must be stated.' 347 Mass. at 692, 200 N.E.2d at 256, 356 Mass. at 639, 255 N.E.2d 347. Cf. Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 294--295, 285 N.E.2d 436 (1972); Vazza Properties, Inc. v. City Council of Woburn, --- Mass.App. ---, --- ^a, 296 N.E.2d 220 (1973). 'All the evidence before the judge is before us, including, as exhibits, photographs of the locus and the decisions of the board. In these circumstances, 'all questions of law, fact, and discretion are open for review by us and we can make findings in addition to those made by the trial judge, but we do not disturb his findings of fact unless they appear to be plainly wrong.' Rodenstein v. Board of Appeal of Boston, 337 Mass. 333, 334, 149 N.E.2d 382.' Broderick v. Board of Appeal of Boston, 361 Mass. 472, 477, 280 N.E.2d 670, 674 (1972). MURPHY V. ZONING BD. OF APPEALS OF LAWRENCE, --- MASS.APP. --- , 317 N.E.2D 90 (1974)^B.

2. Sewage. In MacGibbon I, we held: 'In so far as the permit is sought for the purpose of filling and excavating land, it ought not to be denied on the basis that the land is unsuitable for residential construction or for the installation of cesspools and septic tanks.' 347 Mass. at 692, 200 N.E.2d at 256. As the plaintiffs point out, even if a permit to excavate and fill is granted, they will still have the burden of convincing other appropriate authorities that subsequent permits for building and sewage should be issued. Denial of the first permit on a ground relevant only to the subsequent permits was therefore a denial based on a legally untenable ground.

3. The Ocean Food Chain. The judge found that salt water marshes like the plaintiffs' are 'important links in the ocean food chain' and that they remove certain poisons from coastal waters. He also found that the board has granted permits to others to fill and make improvements on wetlands, ignoring the board's concession that there were no permits which indicated permission to fill wetlands, and he concluded that the denial was 'not solely to preserve the area in its natural state for the enjoyment of the public.' He further found that the plaintiffs' marshland could be used for agriculture and recreation and had possibilities for construction of a marine railway and other uses, that it had a fair market value of $5,300, and that if single residence could be built on it with sanitary sewer facilities and access it would have a value of $44,000. He ruled that the plaintiffs' property 'is a natural feature and resource' of the town, that there are practical uses which the plaintiffs can make of the location, and that the denial of the permit was not tantamount to a taking without compensation.

We have recognized that the protection of marine fisheries and the preservation of coastal wetlands are proper public purposes. Golden v. Selectmen of Falmouth, 358 Mass. 519, 523, 265 N.E.2d 573 (1970). Commissioner of Natural Resources v. S. Volpe & Co., 349 Mass. 104, 107, 206 N.E.2d 666 (1965). Cf. Opinion of the Justices, --- Mass. ---, --- - --- ^c, 313 N.E.2d 561 (1974). In MacGibbon II we indicated several alternative ways by which the town may lawfully accomplish a purpose of preserving its remaining undeveloped coastal wetlands in their natural, unspoiled condition for the enjoyment and benefit of the public. 356 Mass. at 641--642 & n.3, 255 N.E.2d 347. The lawful alternatives did not include exercising the power to regulate under the zoning by-law 'in such a manner and to such an extent that it deprives the plaintiffs' land of all practical value to them or to anyone acquiring it, leaving them only with the burden of paying taxes on it.' Id. at 641, 255 N.E.2d at 352. Cf. Commissioner of Natural Resources v. S. Volpe & Co., 349 Mass. 104, 107--111, 206 N.E.2d 666 (1965); Aronson v. Sharon, 346 Mass. 598, 603--604, 195 N.E.2d 341 (1964).

We accept the judge's finding that the board's denial of the permit was not solely to preserve the area in its natural state, but we think his conclusion that there are practical uses to which the property can be put misconceives the applicable standard. The possible uses found, for...