S. KEMBLE FISCHER REALTY TRUST vs. BOARD OF APPEALS OF CONCORD.

KASS, J. Following denial by the board of appeals of Concord (the board) of a special permit to fill land in a flood plain zone, the plaintiff sought review in the Superior Court under G. L. c. 40A, Section 21, as amended through St. 1974, c. 78, Section 1. [Note 1] In that proceeding the plaintiff was also unsuccessful.

1. On appeal before us the plaintiff attacks adverse findings of the trial judge on the ground that they are inconsistent with facts contained in responses by the board to a request for admissions pursuant to Mass.R.Civ.P. 36(a), 365 Mass. 795 (1974). This raises a threshold procedural question because, so far as appears from the record, the board's admissions were never brought to the attention of the trial judge until after entry of judgment. [Note 2] As with other discovery

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(e.g. interrogatories, depositions), the existence of facts developed in a response to a request for admissions requires introduction into the record in order for the party who relies upon it to obtain its benefit, including, of course, reference to it on appeal. "To use an admission at trial, one merely reads it into the record prior to the close of the evidence," at which time the opposing party may test the ability of the admission to withstand evidentiary objection. Smith & Zobel, Rules Practice Section 36.9 (1975). The mere fact that a paper is found among the files in a case does not make it part of the record which the court must consider. Avant, Inc. v. Polaroid Corp., 441 F.Supp. 898, 900 n.2 (D. Mass. 1977), aff'd 572 F.2d 889 (1st Cir.), cert. denied, 439 U.S. 837 (1978). Cf. Rice v. United Air Lines, Inc., 10 F.R.D. 161 (N.D. Ohio 1950). See 8 Wright & Miller, Federal Practice and Procedure Section 2264 (1970); 9 Moore's Federal Practice par. 210.04[1] (1975). Not only can a trial judge not be expected to take into account discovery material never adverted to, but, additionally, the party against which it is to be used has no opportunity to test its evidentiary competence, to illuminate its significance, and to move under Mass.R.Civ.P. 36(b), 365 Mass. 796 (1974), for withdrawal or amendment of the admission. [Note 3] Discovery material on file but not called to the attention of the trial judge enjoys no better standing on appellate review than a motion filed but never presented, or evidence in possession or control of a party which was not introduced. See McNamara v. Westview Building Corp., 4 Mass. App. Ct. 670 , 672 (1976); Kinchla v. Welsh, 8 Mass. App. Ct. 367 , 372 n.6 (1979). In principle, attempting to argue the significance of material

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not before the court below is the same as arguing on appeal a point of law not raised before the trial judge. An attempt so to do brings nothing before the appellate court. See Previte v. Butcher Boy Steak House, Inc., 3 Mass. App. Ct. 703 (1975); Bendetson v. Coolidge, 7 Mass. App. Ct. 798 , 804-805 (1979). While Mass.R.A.P. 8(a), as amended, 367 Mass. 919 (1975), includes all original papers on file in the record on appeal and Mass.R.A.P. 18(a), 365 Mass. 864 (1974), permits parties to include in the record appendix to the appellant's brief any part of that record, the right of parties to have an appellate court consider a paper is circumscribed, for the reasons stated, by whether it was introduced into the record of proceedings before the trial judge.

2. Concerning the consequences of the plaintiff's construction proposal, the judge made detailed findings of fact, including that: most of the land which the plaintiff sought permission to fill is subject to flooding; the proposed filling of a canal by the plaintiff would defeat the drainage function which the canal served; the velocity of water flow over a dam in the Assabet River would be increased such that erosion of an existing dam, washing out of existing fill and a change in the course of the Assabet River were likely; compensatory water storage in the locus would be reduced; the land of others would be adversely affected; and filling the upstream end of the canal would contribute to stagnation and pollution in the downstream unfilled end, causing detriment to the public health. This sampling of the judge's findings does not exhaust his compilation of what was likely to go wrong if the plaintiff obtained the permit it wanted. We do not set aside findings of fact of a trial judge unless clearly erroneous, Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974), and nothing in the record would warrant us in doing so in this case. Parenthetically we observe that none of the admissions of the board to which the plaintiff refers (relating to the existence of certain plans) were incompatible with the judge's findings.

These findings amply support the judge's determination that the board acted within its authority in denying the

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plaintiff the special permit it sought. Under the applicable zoning by-law provision, Section 4.2B(7), no land fill was permitted "in any part of the Flood Plain Conservancy District" without a special permit, and no special permit was to issue unless it were "proven to the satisfaction of the Board of Appeals, after the question has been referred to and reported on by the Planning Board and the Board of Health, as being in fact not subject to flooding or not unsuitable because of drainage conditions . . . and that the use . . . will not be detrimental to the public health, safety or welfare." The planning board of Concord reported that the proposed fill "would interfere with the protection against the hazards of flood water inundation which the Flood Plain Conservancy District is intended to provide," and the board of health reported that "the filling in of this one portion of the existing canal would be detrimental to the public health in respect to increased problems with pollution and stagnation in the adjacent portion of the canal . . . ."

No one, of course, has an absolute right to a special permit, Humble Oil & Ref. Co. v. Board of Appeals of Amherst, 360 Mass. 604 , 605 (1971), and cases cited, and the board has the power to deny a permit as long as its decision is neither based on a legally untenable ground, nor is unreasonable, whimsical, capricious or arbitrary. Pioneer Home Sponsors, Inc. v. Board of Appeals of Northampton, 1 Mass. App. Ct. 830 , 831 (1973). In view of the reports received from the planning board and the board of health, it can hardly be suggested that the board's decision in this case suffered from any of those infirmities.

3. The plaintiff asserts that the Concord flood plain zoning by-law is unconstitutional as applied because it leaves the plaintiff without any practical use of its property and, therefore, amounts to a taking by eminent domain without just compensation. Compare Commissioner of Natural Resources v. S. Volpe & Co., 349 Mass. 104 , 109-110 (1965). After Turnpike Realty Co. v. Dedham, 362 Mass. 221 (1972), cert. denied, 409 U.S. 1108 (1973), the prospects for the plaintiff's assault on this score are meager. That decision

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forecloses the argument that the exceedingly limited use which a flood plain zoning by-law may leave to the owner of land constitutes a de facto taking. Id. at 235-237. To escape the force of the Turnpike Realty case, the plaintiff emphasizes a finding of the judge that the plaintiff could not use its land "as it is now for access, general recreation or other uses permitted within the Flood Plain Conservancy District." The judge also found (although he called it a ruling of law) that the plaintiff's land was not worthless, which we read as a determination that the locus was not without residual economic utility. It is by no means clear from the record that the plaintiff could not use that portion of its land in the flood plain zone for some purpose which did not require filling, for example to enhance that portion of its land which is outside the flood plain. See Mile Road Corp. v. Boston, 345 Mass. 379 , 383 (1963). As in Turnpike Realty Co. v. Dedham, 362 Mass. at 235, the land owner in this case is substantially restricted but "such restrictions must be balanced against the potential harm to the community." The likelihood of palpable damage to the surrounding area was considerable. Thus, as applied, the Concord by-law is an exercise of the police power which "regulates use of property because uncontrolled use would be harmful to the public interest" while "[e]minent domain, on the other hand, takes private property because it is useful to the public." Turnpike Realty Co. v. Dedham, 362 Mass. at 235, quoting from Vartelas v. Water Resources Commn., 146 Conn. 650, 654 (1959). Davidson v. Commonwealth, 8 Mass. App. Ct. 541 , 548 (1979).

4. There is no merit to the plaintiff's contention that a thirty-foot strip of its land is exempt from the flood plain controls because Section 1B of the zoning by-law permits an owner whose lot straddles a zoning district line to extend the less restrictive use for a distance of thirty feet into the more restrictive district. It is apparent that the Flood Plain Conservancy District is a so called overlay district imposed over the underlying use district. Whether land is subject to the flood plain restrictions or is subject merely to the conditions

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of the underlying zone is a function of the grade of the land. As to land below the grades specified in Section 1E of the by-law, the flood plain controls override the controls of the underlying zone.

Judgment affirmed.