ROBERT F. FOGELMAN vs. TOWN OF CHATHAM.

ARMSTRONG, J. The plaintiff was denied a permit to build a guest house on a particular location on his lot bordering Ryder's Cove in Chatham. The building inspector and the board of appeals relied on a provision of the zoning by-law which prohibited building within twenty-five feet of wetland as defined in the by-law. The plaintiff brought an action in the Land Court under G. L. c. 240, Section 14A, and c. 185, Section 1 (j 1/2), to determine the scope and validity of the wetland setback provision as applied to his property. [Note 1] The

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judge ruled that the twenty-five foot setback requirement did not apply to the plaintiff's land, which concededly contains wetland either under or within twenty-five feet of the proposed building location, [Note 2] because the plaintiff's land was not designated on the town's "Conservancy District" map. The case before us is on the town's appeal.

The decision in the Land Court focused on the difficulty of applying the definition of "inland wetlands" appearing in Section 1.63 of the by-law: "Any marsh, meadow or swamp bordering on inland waters or that portion of any bank which touches any inland waters, or any marsh, meadow or swamp subject to flooding by fresh water [or any areas of peat, muck or natural growth indicative of wetland]." The brackets, inserted by us, mark the portion of the definition the judge held so vague as to give rise to constitutional problems, pointing out that three trained botanists, applying the natural-growth test, had determined three different wetlands boundary lines, which, although they converged at

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some points, appear to have diverged by as much as fifty feet at others. Citing O'Connell v. Brockton Bd. of Appeals, 344 Mass. 208 (1962), and Castle Estates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. 329 (1962), the judge held that portion of the by-law to fail the test that (in her words) "[a zoning by-law] must be framed in such a way that the standards to be met are clear both to the regulatory authority and to those subject to its jurisdiction." The uncertainty could be cured, she ruled, if the wetlands which form the basis of the twenty-five foot setback requirement were limited to those shown on the conservancy district map on file in the town clerk's office. The conservancy district, an overlay district which is supposed to include all "inland wetlands" as defined in Section 1.63, as well as some other categories of terrain, [Note 3] did not as drawn on the relevant map include the plaintiff's land.

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It is not clear that the interpretation adopted by the judge could succeed in avoiding a problem of vagueness in the Section 1.63 definition because the conservancy district is itself defined by denotation, one of the constituents being "wetlands as defined in Section 1.63." See note 3, supra. But for the reasons which follow we think that whatever vagueness is exhibited by the definition is not of the constitutionally disabling type.

A zoning by-law starts with a presumption of constitutional validity. Caires v. Building Commr. of Hingham, 323 Mass. 589, 594-595 (1949). Doliner v. Town Clerk of Millis, 343 Mass. 10, 14 (1961). In general it will be held valid if there is a substantial relation between it and the furtherance of any of the general objectives of The Zoning Act. Sinn v. Selectmen of Acton, 357 Mass. 606, 609 (1970). It is not questioned that The Zoning Act makes protection of wetlands a valid objective of local zoning by-laws. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 636-637 (1970). Golden v. Selectmen of Falmouth, 358 Mass. 519, 522-523 (1970). Turnpike Realty Co. v. Dedham, 362 Mass. 221, 233 (1972), cert. denied, 409 U.S. 1108 (1973). S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass. App. Ct. 357, 360 (1976).

It is true, of course, that a zoning ordinance or by-law may not be cast in such vague terms that men of common intelligence must necessarily guess at its meaning and differ as to its application. O'Connell v. Brockton Bd. of Appeals, 344 Mass. at 212. But this does not mean that the application of the zoning ordinance or by-law may not validly call for the exercise of judgment (see Zaltman v. Board of Appeals of Stoneham, 357 Mass. 482, 483-485 [1970]; S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass. App. Ct. at 362) or require findings of fact to determine whether particular land falls within the regulatory framework established

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by the ordinance or by-law. See, e.g., Turnpike Realty Co. v. Dedham, 362 Mass. at 234 (whether land was "subject to seasonal or periodic flooding" and thus properly included in a flood plain district).

A law is not unconstitutionally vague simply because it presents some questions as to its application in particular instances. Courts and administrative boards draw lines and resolve ambiguities every day. See North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432, 440 (1981). The zoning provision held unconstitutionally vague in O'Connell v. Brockton Bd. of Appeals, supra, was unusual, in that it offered no clue as to what concept the city's legislative body may have had in mind in adopting it. (The provision purported to determine a building setback line within city blocks by reference to existing buildings, but the manner of determining the line was shrouded in obscurity.) A recent analog was Commonwealth v. Gagnon, 387 Mass. 567, S.C., 387 Mass. 768 (1982), which held the statutorily prescribed punishment for distribution of heroin unconstitutionally vague, because one could only speculate as to the punishment the Legislature may have intended by the impenetrable language employed to express it. Interstices are filled in routinely, lines are drawn, and simple ambiguities resolved; but where the core concept is indecipherable the court will not supply one of its own creation. Id. at 772. Cases of that type are unusual, [Note 4] and this is not one of them. The definition of wetland in terms of natural growth, while not self-explanatory to most laymen, has respected antecedents in key definitions in the Commonwealth's Wetlands Protection Act, G. L. c. 131, Section 40, a law referred to

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several times in the provisions of the town by-law relating to the conservancy district and which may justifiably be used to supply explicit standards for applying the by-law's phrase, "natural growth indicative of wetland." See Rutland v. Fife, 11 Mass. App. Ct. 341, 345 n.6, S.C., 385 Mass. 1010 (1981); Farrugia v. Board of Appeals of Marshfield, 14 Mass. App. Ct. 720, 722 (1982).

The plaintiff mistakenly relies on Castle Estates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. 329, 334 (1962), Chira v. Planning Bd. of Tisbury, 3 Mass. App. Ct. 433, 438 (1975), and Canter v. Planning Bd. of Westborough, 4 Mass. App. Ct. 306, 308-309 (1976). Those cases dealt with regulations of planning boards under the Subdivision Control Law, and applied a standard ("comprehensive, reasonably definite, and carefully drafted, so that owners may know in advance what is or may be required of them and what standards and procedures will be applied to them . . . ," Castle Estates, Inc. v. Park & Planning Bd. of Medfield, supra at 334) that is held to invalidate regulations which are not definite in application and which leave substantial discretion to the planning board. [Note 5] The standard of specificity required of planning board regulations, having its origin in the legislative history of the Subdivision Control Law (as to which see Daley Constr. Co. v. Planning Bd. of Randolph, 340 Mass. 149, 153-155 [1959]; Pieper v. Planning Bd. of Southborough, 340 Mass. 157, 162-164 [1959]), has never been applied to zoning ordinances and by-laws. The latter are acts of legislative bodies of cities and towns and are more properly and generally held to the standards applicable to acts of the General Court. As to these it is enough if a general policy is stated with reasonable clarity; the detailed application of that policy to particular fact situations may appropriately be left to administrative bodies and the courts. Compare MacGibbon v. Board of Appeals of Duxbury, 356 Mass. at 638. The

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definition of inland wetlands in Section 1.63 complies with such a standard and is not subject to attack for vagueness.

There remains the question whether the conclusion reached by the judge is required as matter of construction of the setback provision of the by-law. The setback requirement is found in appendix II of the by-law, the table which sets out the dimensional requirements applicable to buildings in the various zoning districts (including lot size, frontage, frontyard, sideyard, and wetlands setbacks, maximum lot coverage, and maximum building heights). The relevant column is labeled, "Min. Bldg. Setbacks (in feet), Fresh & Saltwater and Wetlands," and explanatory notes placed after "Fresh" and after "Wetlands" both state, in relevant part, "Salt water shall be mean high water level; wetland shall be as described in Section 3.44 paragraphs 1 and 2, and defined in Section 1.63."

The two paragraphs of section 3.44, reproduced in note 3, supra, set out the method whereby the boundary lines of the conservancy district are to be fixed. With respect to lands bordering salt water, the boundary line is drawn on a plane two feet above mean high water; with respect to inland waters and surrounding land, the boundary line is drawn on a plane two feet above the water level recorded in the office of the town clerk; and with respect to inland wetlands, the boundary line is drawn at the edge of the inland wetland as defined in Section 1.63. "Inland wetlands," as there defined, do not include ponds or other inland waters, but only marshes, meadows, swamps and banks bordering thereon; and they do not include marshes, banks, or other lands bordering on salt water.

In defining the "wetlands" which were to be the subject of the setback provision, it is not entirely clear why the draftsmen of the zoning by-law thought it necessary to include references to both Section 3.44, par. 2, and Section 1.63, in view of the fact that Section 3.44, par. 2, includes all inland wetlands as defined in Section 1.63. If the definition is to be read with emphasis on the "and," the words "as described in Section 3.44, paragraphs 1 and 2, and as defined in Section 1.63" would exclude

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coastal wetlands, such as saltmarsh, as well as all inland conservancy district land other than "inland wetlands." Such a reading would make the reference to Section 3.44, paragraphs 1 and 2 superfluous, and would, in our opinion, do more violence to the probable intent of the draftsmen than a reading which makes the reference to Section 1.63 superfluous.

The difficulty with the trial judge's construction -- that inland wetlands are not subject to setback unless shown on the conservancy district map -- is that it bears no relation to the words used and does nothing to resolve the apparent redundancy that gives rise to the problem. Moreover, it is Section 3.43, not Section 3.44, which establishes the conservancy district map. If the draftsmen's intent were to make the map the criterion for application of the setback, the definition of "wetland" would presumably have referred to Section 3.43. By referring instead to Section 3.44, the draftsmen must have intended the setback to apply to the lands described in Section 3.44, regardles whether the lands were depicted on the map.

We hold that the sense of the definition of "wetlands", as used in the setback provision, is that it includes both "inland wetlands" as defined in Section 1.63 and all other lands which comprise the conservancy district as defined in Section 3.44. Recognizing that that construction does not wholly eliminate the problem of redundancy in the definition, we feel nevertheless that it best effectuates the apparent purpose of the regulatory scheme read as a whole.

The judgment is reversed, and a new judgment is to enter declaring that the setback provision and the definition of inland wetlands are valid exercises of the town's zoning power, that the setback provision applies to the plaintiff's property, and that the plaintiff is not entitled to build his proposed guest house in the location indicated in his application for a building permit.

So ordered.