Turnpike Realty Co. v. Town of Dedham
| Decision Date | 26 June 1972 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | , 4 ERC 1344, 3 Envtl. L. Rep. 20,221 TURNPIKE REALTY COMPANY, Inc. v. TOWN OF DEDHAM. |
Antonino F. Iovino, Boston, for petitioner.
Herbert P. Wilkins, Boston (Acheson H. Callaghan, Jr., and Jeffrey Swope, Boston, with him) for respondent.
John A. Perkins, Town Counsel, joined in a brief.
Before TAURO, C.J., and SPIEGEL, BRAUCHER, and HENNESSEY, JJ.
The petitioner, the owner of 61.9 acres of land in Dedham, brought this petition in the Land Court under the provisions of G.L. c. 185, § 1 (j 1/2), and c. 240, § 14A, to determine, inter alia, the validity of an amendment to a zoning by-law as applied to the land of the petitioner. The judge in his decision ruled that the by-law 'was a valid exercise of the authority and powers conferred upon the respondent . . . by . . . (G.L. c.) 40A and is in full force and effect as to the petitioner's land.' The case is here on the petitioner's exceptions to several of the judge's findings and to his denial of a number of the petitioner's requests for rulings.
The petitioner acquired the land in question in 1947. It is made up of uplands and lowlands and includes two knolls, one of 3.2 acres and the other of .2 acres, which rise above the elevation of the petitioner's lowland. The land is bounded by Route 1, the Boston-Dedham boundary line, the Charles River, and the Mother Brook. At the annual town meeting in 1963 the respondent amended its 'zoning by-laws and (z)oning (m)ap' by adopting a zoning by-law establishing a 'Flood Plain District,' which included 'the land of the petitioner, except for a minor portion thereof.' Prior to the amendment the entire area involved in this case was in a general residence zoning district. The judge found that the knolls were included in the flood plain district. The remaining land of the petitioner is 'a low swampy area' bordering on the Charles River.
Pertinent portions of the by-law, with paragraph numbers added by us for clarity of reference, are as follows:
The petitioner attacks the validity of the by-law on several grounds. Many of its arguments overlap. We treat with its central contentions as it has presented them in its brief.
1. A recurrent argument throughout the petitioner's brief is that the prime purpose of the by-law was to 'retain . . . (its) land in its natural state and as a flood water detention basin.' It appears to rely to a considerable extent on various statements made by members of the Dedham conservation commission which suggest that their primary interest in urging the adoption of the by-law was for the above reasons. This demonstrates, it argues, that the by-law was 'not regulatory, but confiscatory.'
The validity of this by-law does not hinge upon the motives of its supporters. See Caires v. Building Commr. of Hingham, 323 Mass. 589, 596, 83 N.E.2d 550. The reasons for the creation of the flood plain district are clearly set forth in the by-law itself. There is no need to speculate about the 'prime purpose' of the by-law. Whether the stated purposes are within the authority granted by the Zoning Enabling Act, G.L. c. 40A, is a question which we will consider in the course of this opinion.
2. The petitioner takes the position that lands which are not subject to flooding from 'natural' causes cannot or should not be included in a flood plain district, and that the judge's rulings denying the petitioner's requests on this point were erroneous. 1 It admits that its land was on occasions 'covered with water' because of the overflow from the Charles River but charges this to mismanagement of the Mother Brook bascule gate 2 by one Salvatore Trementozzi, an employee of the Metropolitan District Commission. The petitioner seeks to characterize this flooding as 'artificial.'
The Mother Brook bascule gate was completed in 1959 as part of flood control work on the Charles River to reduce the effect of flooding. Trementozzi testified that when the gate is lowered, water is diverted into Mother Brook; when it is raised, water remains in the Charles River. He also testified that he made the decision 'on a regular basis' whether to raise or lower the gate. On certain dates when the petitioner's land was flooded, Trementozzi decided not to lower the gate. The petitioner argues that the flooding over its land could have been prevented by 'proper' operation of the gate. The evidence, however, in no way suggests that Trementozzi's management of the gate was unreasonable, or that 'the locus was . . . an area which was being utilized by Trementozzi, at the expense of the petitioner, for public purposes.'
Although the judge did not make explicit findings of fact on this point, it is clear that he considered the petitioner's contention. In any event, we are of opinion that the judge was correct in denying the petitioner's requests for rulings on this issue.
3. The petitioner argues that 'the enactment of the by-law was arbitrary, capricious and unreasonable and went beyond the authority granted in the last sentence of' c. 40A, § 2, which reads as follows: 'A zoning . . . by-law may provide that lands deemed subject to seasonal or periodic flooding shall not be used for residence or other purposes in such a manner as to endanger the health or safety of the occupants thereof.'
The preamble of the by-law sets out its purposes: (numbers added for clarity of reference) '(1) to preserve and maintain the ground water table; (2) to protect the public health and safety, persons and property against the hazards of flood water inundation; (3) for the protection of the community against the costs which may be incurred when unsuitable development occurs in swamps, marshes, along water courses, or in areas subject to floods; (4) and to conserve natural conditions, wild life, and open spaces for the education, recreation and general welfare of the public.
We first state our view that the last sentence of G.L. c. 40A, § 2, does not in any way limit the authority of a municipality to enact a flood plain zoning by-law. Even before the last sentence became part of the enabling act, 3 we believe that a municipality could validly have enacted a flood plain zoning by-law under the general grant of authority in G.L. c. 40A, § 2 (), and for the reasons set forth in G.L. c. 40A, § 3 (). See Dunham, Flood Control Via the Police Power, 107 U. of Pa.L.Rev. 1098, 1118--1121. Although it might be argued that such authority to enact flood plain zoning could not be implied before the insertion of the last sentence of G.L. c. 40A, § 2, and that we must therefore regard the objective of such flood plain zoning as limited to the protection of 'occupa...
To continue reading
Request your trial
-
South Terminal Corp. v. E.P.A., FITZ-INN
...... Goldblatt v. Town of Hempstead, 369 U.S. 590, 592, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); ike Realty Co. v. Town of Dedham, 1972 Mass.Adv.Sh. . Page 679 . 1303, 284 N.E.2d ......
-
DiMarzo v. American Mut. Ins. Co.
...355, 359, 167 N.E. 670 (1929). Often the Legislature may amend a statute simply to clarify its meaning. Turnpike Realty Co. v. Dedham, 362 Mass. 221, 228, 284 N.E.2d 891 (1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 908, 34 L.Ed.2d 689 (1973). The extent to which an amendment may properly b......
-
Town of Indialantic v. McNulty
...DCA 1979), cert. denied, 385 So.2d 755 (Fla.1980); Davis v. Sails, 318 So.2d 214 (Fla. 1st DCA 1975); Turnpike Realty Co., Inc. v. Town of Dedham, 362 Mass. 221, 284 N.E.2d 891 (1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 908, 34 L.Ed.2d 689 (1973); 12 Fla.Jur.2d Counties § 181 (1979).9 Ci......
-
W.R. Grace & Co. v. Cambridge City Council
...The validity of the zoning amendments does not turn on the motives of their supporters. See Turnpike Realty Co. v. Dedham, 362 Mass. 221, 226, 284 N.E.2d 891 (1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 908, 34 L.Ed.2d 689 (1973). See also Caires v. Building Commr. of Hingham, supra at 595......
-
A River Used to Run Through It: Protecting the Public Right to a Sustainable Water System
...environmental advancement at a negligible cost to the landowner does not amount to a regulatory takings”); Turnpike Realty Co. v. Dedham, 362 Mass. 221, 235 (Mass. 1972) (“restrictions must be balanced against the potential harm to the community from overdevelopment of a flood plain area.”......
-
Regulatory Taking Doctrine in Washington: Now You See It, Now You Don't
...of Fairfield, 151 Conn. 304, 197 A.2d 770 (1964); State v. R.B. Johnson, 265 A.2d 2711 (Me. 1970); Turnpike Realty Co. v. Town of Dedham, 362 Mass. 221, 284 N.E.2d 891 (1972); MacGibbon v. Board of Appeals, 356 Mass. 635, 255 N.E.2d 347 (1970); Morris County Land Improvement Co. v. Parsippa......
-
Learning From Disasters
...of Chicago Press, 1986). 22. Allison Dunham, “Flood Control Via the Police Power,” 107 Univ. Pa. L. Rev. 1098-1131 (1959). 23. 284 N.E.2d 891 (Mass. 1972). 24. Platt, Disasters and Democracy , supra note 17, at 136-41. 25. First English Evangelical Lutheran Church of Glendale v. County of L......