MISC 08-382429

April 22, 2011


Grossman, J.


By virtue of the instant action, initiated pursuant to G. L. c. 40A §17, MaryAnn Doherty, the plaintiff herein, seeks judicial review of a decision of the Town of Scituate Planning Board (Board) denying her applications for special permits. Plaintiff owns [Note 1] two unimproved lots on a barrier beach in Scituate, Massachusetts. The lots, 114 Edward Foster Road and 118 Edward Foster Road (lots), lie between First Cliff and Second Cliff, face Scituate Harbor and are bounded by the Massachusetts Bay to the rear. The Board’s decision of July 21, 2008 was predicated upon § 470 of the Scituate Bylaw captioned Flood Plain and Watershed Protection District (FPWPD/ District).

Subsection 470.3 thereof provides in relevant part as follows:

The location and boundaries of the Flood plain Watershed Protection District shall be as shown on map entitled “Town of Scituate, Massachusetts, Flood Plain and Watershed protection District, 1972” on file at the Scituate Town Hall Engineering Department….

Subsection 470.5 of the Bylaw sets out a list of six Permitted Uses in the District.

That Subsection reads in relevant part, as follows:

In a Flood Plain and Watershed protection district, except as provided herein and in subsections 470.6 [Uses Permissible By Special Permit] and 470.7 [Prohibited Uses], no structure shall be erected, constructed, altered, enlarged or otherwise placed or moved for any purpose, except the following, which are permitted as a matter of right….

The permitted uses enumerated under Subsection 470.5 include, but are not limited to, items such as soil conservation, nature study, boating, operation of dams, accessory uses such as flower or vegetable gardens and “[a]ccessory outbuildings including garages and tool sheds serving an existing structure existing on the date of amendment of this section of the bylaw (March 2, 1992).” [Note 2]

Subsection 470.6 of the Bylaw is captioned Uses Permissible By Special Permit.

It commences with this introductory language:

Upon issuance of a special permit by the planning board and subject to such special conditions and safeguards as the planning board deems necessary to fulfill the purposes of this section, the following uses and structures are permitted….

There follows a list of six categories which include, but are not limited to, “[f]ootbridges and duckwalks, municipal parks and water supply facilities, temporary storage for materials and equipment “provided such storage does not affect the water quality or the natural drainage pattern of any watercourse,” dams, excavations, or changes in watercourse to create ponds or pools for municipal water supply, or drainage improvements.

Subsection 470.7 of the Bylaw enumerates those uses which are explicitly prohibited in the District. They include, but are not limited to, dumping, filling, excavating, and degrading “the water quality of surface or ground water within the district.”

Clearly, if an applicant’s property were deemed located within the District, the construction of a single family dwelling therein would not constitute either a permitted use nor one permissible by special permit under Subsection 470.6.

Subsection 470.9 is therefore highly relevant to our analysis. That provision captioned Determination of Suitability, reads as follows:

If any land in the Flood Plain and Watershed protection District is proven to the satisfaction of the planning board…as being in fact not subject to flooding and not unsuitable because of drainage conditions for any use otherwise permitted under the applicable provisions of the zoning bylaw, but not specifically listed under Section 400, the planning board may issue a special permit for the proposed use. Such use…shall not interfere with the purposes of the Flood plain and Watershed Protection District or pose a threat to the public health, safety or welfare. (emphasis added)

Under Section 470, the owner of any lot located within the Flood Plain and Watershed Protection District may apply to the planning board pursuant to Subsection 470.9, for a special permit in order to utilize that land for a purpose not otherwise allowed as of right or by special permit under Subsection 470.6. Pursuant to the Bylaw, the Board may issue a special permit for the construction of single family dwellings upon a showing that the lots at issue are “in fact not subject to flooding and not unsuitable because of drainage condition.”

In the case at bar, the Board found that the lots at issue were located within the District and were subject to flooding. Consequently, by virtue of the Board’s July 21st decision, the plaintiff was denied the special permits required for the construction of a single family dwelling on each lot.

On appeal, plaintiff contends that the Board employed an improper analysis of the District boundaries. Based upon the elevation of the land at issue, plaintiff asserts that most of the lot areas are located outside of the District. Alternatively, she argues that even if the lots are entirely located in the District, that they are not subject to flooding as that phrase appears in the Bylaw. Consequently, she asserts that the Board exceeded its authority, and asks that its decision be annulled.

A two-day trial was conducted November 23, 2009 and November 24, 2009 at which a stenographer was sworn to take the testimony of Maryann Doherty, Lester Smith, Ralph Crosse, Vincent Kalishes III, Laura Harbottle, Stanley Humphries, Jane Thompson, Mary Ann McDonald Jenkins, Peter Konde and Carol Fitzgibbon. Thirty four exhibits were presented at trial, of which Numbers 1-7, and 15-34 were admitted into evidence. [Note 3] The exhibits are incorporated by reference into this decision for purposes of appeal.

On all the credible testimony, exhibits and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda and arguments of the parties, I find as follows:

1. MaryAnn Doherty resides at 89 Edward Foster Road. She owns the lot at 114 Edward Foster Road and a major portion of the lot at 118 Edward Foster Road (with a contractual right to acquire the remainder) in Scituate, Massachusetts (lots). Both lots are currently unimproved. The lots consist of approximately 21,600 sq. ft. and 20,950 sq. ft. respectively.

2. The lots are located upon a barrier beach peninsula. [Note 4] The easterly side of the peninsula is bounded by the Massachusetts Bay, and the westerly, or landward side, is bounded by Scituate Harbor. On either end of the peninsula are the geographic areas known as First Cliff and Second Cliff. The two lots at issue lie between First Cliff and Second Cliff.

3. The residential parcels located along Edward Foster Road between First Cliff and Second Cliff have a concrete seawall facing Massachusetts Bay. [Note 5] However, the height of the seawall abutting both of the Doherty lots “is actually lower than other portions of the seawall adjacent to it.” Thus, the seawall at 118 Edward Foster Road is 16.5 feet high. The seawall at 114 Edward Foster Road is, in the main, 16.5 feet high, with a portion at 19.4 feet. The remaining portion of the seawall abutting other parcels on Edward Foster Road stands consistently at 19.4 feet. [Note 6]

4. The sea wall height discrepancy is due to certain fiscal constraints encountered by the plaintiff following the so-called Blizzard of 1978. At that time, other lot owners elected to raise the height of the sea wall portion abutting their property. The plaintiff did not do so. “We had to pay for that sea wall. We could not afford to do it.” [Note 7]

5. Each one of the two proposed dwellings would be situated on its respective lot with neither dwelling having a garage. Moreover, each project would comply with all setback and other dimensional requirements. The proposed homes would be constructed on pilings, the top of which would be at an elevation of 21 feet. The land under the footprint of the homes would be at an elevation of 14 through 16 feet. [Note 8]

6. The Scituate Building Inspector determined that the lots were located in the District and that, as a consequence, Doherty would have to obtain special permits from the Board authorizing the construction of the proposed dwellings. On April 12, 2008, Doherty filed the requisite applications with the Board. The Board conducted public hearings on May 8, 2008, June 12, 2008 and July 10, 2008. Having determined that the lots did not meet the criteria specified in Subsection 470.9 of the Bylaw, [Note 9] the Board, on July 21, 2008, promulgated its decision denying Ms. Doherty’s special permit applications.

7. In 1972, the Town of Scituate initiated the development of an overlay zoning district, the Flood Plain and Watershed Protection District. To this end, the local Conservation Commission retained the services of Vincent J. Kalishes III (Kalishes) and Bill Richardson (Richardson). [Note 10] They were charged with undertaking research and other work preparatory to the development of the District. The District itself was intended “to protect the town’s coastal resources and watersheds.” Kalishes and Richardson were to do “research to establish where those areas [flood plain and watershed] are and to identify them and then to come up with some type of mapping system that could be reproduced on the ground by a surveyor or engineer.” [Note 11] According to Kalishes [Note 12] “ the scope of the available data at the time was limited, but we got together what we could from the National Weather service and local knowledge and…we had meetings in the neighborhoods to get information about where certain lands might be and what had been impacted.” (emphasis added)

8. Thereafter, they “developed a map that showed these flood area, these sensitive areas to the flood plain and the inland areas. And then [they] took that map and superimposed them onto a zoning map and a USGS [United States Geodetic Survey] map.” [Note 13] They then “developed lines in each one of…[the] neighborhoods…or project area” that would delineate the flood zones. [Note 14]

9. The Map predated the Federal Emergency Management Agency’s (FEMA) flood classification and mapping. [Note 15]

10. “They key purpose [underlying the development of the district] is to give the individual due notice that he may be in a flood zone, and he may have to go through some process to obtain a building permit or to find out he couldn’t obtain a building permit.” [Note 16]

11. Their efforts culminated in the 1972 Flood Plain and Watershed District Map captioned “Town of Scituate, Massachusetts, Flood Plain and Watershed Protection District, 1972” (Map) [Note 17] That Map delineates the District and its boundaries. “Boundaries on the map define the [flooding] zone…. Then whether its subject to flooding or not is determined by the permitting agency.” [Note 18]

12. On the Map, the boundaries of the District are indicated by thick dashed lines. Along the dashed lines are references, such as “10 foot contour” and “50 foot behind sea wall.” The dashed lines do not follow lot lines, but instead follow natural profiles of the land and other permanent boundaries. [Note 19]

13. In the early 1970’s, the scope of the technical understanding or concept of flooding was limited to “surge flooding.” [Note 20] Surge flooding occurs when there is low barometric pressure over the ocean, which in turn causes a bulge or surge in the water where the sea meets the land. [Note 21]

14. Since the drafting of the Map, the Federal Emergency Management Agency (FEMA) has assumed a significant role in defining and determining the types and variations of flooding. Today, FEMA’s knowledge of flooding is based upon greater technological and scientific advancements than were available in the early 1970’s when the Map was crafted.

15. This knowledge has been brought to bear through the development of three FEMA Flood Zones (Zones). These Zones are present on both lots. The boundaries of these Zones are as shown on the Flood Insurance Rate Map (FIRM) last updated by FEMA in 2003. [Note 22] They consist of a Velocity Zone, Overwash Zone and AE Zone. They have been utilized herein without regard to the ten foot contour lines depicted on the Map. [Note 23]

16. Each of the lots at 114 Edward Foster Road, and 118 Edward Foster Road are crossed by three relatively horizontal FEMA Flood Zone demarcations. [Note 24] These FEMA demarcations are indicative of projected flooding during a hundred year storm. [Note 25] It appears that at least half the dwelling [Note 26] depicted on Exhibit 3, 114 Edward Foster Road, resides within the “VE (EL 20)” Zone (VE). [Note 27] The remainder of the dwelling lies within the “AO (2’ Depth)” Zone (AO). Further landward, somewhat parallel to Edward Foster Road, is a line delineating the location where the AO Zone becomes an “AE (EL 11)” Zone (AE).

17. This pattern is repeated on Exhibit 4, 118 Edward Foster Road, except that substantially more of the dwelling on this lot resides within the VE Zone.

18. The VE Zone is a coastal high hazard area expected to experience flooding from Massachusetts Bay up to an elevation of twenty feet with waves greater than three feet in height. [Note 28] The VE Zone is denoted a coastal high hazard area “[e]ssentially because of the characteristics that flooding will have in that zone, primarily related to the minimum 3-foot breaking wave and associated surge movement on land from the ocean.” [Note 29]

19. The demarcation “AO (2 foot depth)” represents an overwash zone. This means that the area is a transitional zone from the VE Zone where the momentum of the water continues, resulting in at least two feet of water flowing over that area. [Note 30]

20. “AE (EL11)” means that waves, less than three feet in height, will flow up to ground elevation of eleven feet. As made clear by Exhibits 3 and 4, a relatively small portion of each lot falls within the AE Zone. No portion of either proposed dwelling itself, is within the AE Zone.

21. The property at 114 Edward Foster Road in the area marked “VE (EL20)” is expected “to have flooding conditions up to elevation 20, that it would include wave heights that would exceed 3 feet in height.” [Note 31] This means that there will be a base level of flooding, dependant upon the topographical elevation, with waves of a three foot minimum, resulting in twenty feet of total flood elevation. [Note 32]

22. The area of the AO Zone, the Overwash Zone, [Note 33] is a transition area located landward (towards Scituate Harbor) of the Velocity Zone. Regardless of the elevation or grade change, the momentum of the water would be expected to flow at a minimum depth of two feet, over the entirety of the AO Zone. [Note 34]

23. The remainder of the lot is encompassed within the AE Zone. This Zone is one where “waves could be possibly breaking in there, but that they would be less than 3 feet in height.” [Note 35] In this location, the water will come “up from the harbor and over the road moving essentially seaward over the road, may be the area where there is enough opportunity for waves to develop in the harbor and then break on the back side of this property.” [Note 36]

24. As to 118 Edward Foster Road, the effects of a hundred year storm, given the FEMA Flood Zones, would be similar to that anticipated on 114 Edward Foster Road. [Note 37] Provided however, that the potential for flooding “on the [proposed] house” at 118 Edward Foster Road would be greater than that at 114 Edward Foster Road. [Note 38] Specifically, on 118 Edward Foster Road, based upon the topographical elevations and the FEMA zones, five to six feet of flood water could be anticipated under the proposed dwelling. [Note 39] Further landward, 118 Edward Foster Road would be covered in a minimum of two feet of flowing water in the overwash area, and have waves of less than three feet flowing from both the Massachusetts Bay and Scituate harbor covering the area marked AE. [Note 40]

25. Several neighbors testified regarding their direct observations of flooding on the lots at issue. Jane Thompson (Thompson) has resided at 13 Circuit Ave. which is located on First Cliff at the northern end of Edward Foster Road, since 1986. [Note 41] Thompson must drive past the lots at issue in order to reach her home. She recalled during the October 1991 “Nor’easter” [Note 42] that “tremendous waves” crossed the lots. [Note 43] Additionally, she stated that the flooding overtook the road and was deep enough so that no one could drive through it. [Note 44] She testified further that during that storm, and during storm conditions, generally, ocean water will travel over the seawall and flood Edward Foster Road. [Note 45]

26. Mary Ann McDonald Jenkins currently resides at 22 Sunset Road on First Cliff. Jenkins has lived there since 1985. She also resided at 98 Crescent Avenue on Second Cliff for the first nineteen years of her life. [Note 46] Jenkins witnessed the Blizzard of 1978 [Note 47] and testified as to its effect upon both 114 Edward Foster Road and 118 Edward Foster Road. She recalled that water completely washed over the property for three days, leaving over five feet of wet sand covering Edward Foster Road. [Note 48] She also testified that during the October 1991 storm, water continuously washed over the lots with four foot waves. [Note 49] Moreover, she stated that the lots flood “roughly three times a year, almost every year.” [Note 50]

27. Neighbors Peter Konde, who has a summer residence at 124 Edward Foster Road, [Note 51] and Carol Fitzgibbon, who lives year round on First Cliff [Note 52] both testified that they have witnessed flooding on the lots at issue. [Note 53]

28. The plaintiff herself, MaryAnn Doherty, acknowledged that during certain storms she has seen water flowing across the lots from the Massachusetts Bay. [Note 54]

Thus, Ms. Doherty testified on cross examination as follows:

Q: And have you ever been on the 114 Edward Foster Road property during a storm event?

A: On 114?

Q: Yes.

A: Oh, yes.

Q: You’ve been outside and on that property during a storm event?

A: Yes.

Q: And have you witnessed water coming or flowing across the property?

A: In some storms, yes.

Q: And as to 118 Edward Foster Road, you have been on that property during any storm events?

A: Yes.

Q: And have you witnessed water coming across that property?

A: On certain storms.

Q: And during those certain storms from 114 and 118, was the water coming from the ocean or seaward side of the properties?

A: If it went across the property, it came form the ocean.

Q: So it flowed—the water flowed across those properties; would you agree with that?

A: It—how far are you talking about flowing?

Q: When I say “flow”, did the water move across from the ocean side towards the harbor side?

A: Yes, the water moved form the ocean towards the harbor.

Q: And would you agree that the water that flowed was at least a couple of inches deep?

A: Could be on some times.

A. Standard of Review

On appeal of the denial of a special permit under G. L. c. 40A, § 17, the court is obliged to find facts de novo. At the same time, it may give no weight to those facts found by the Board below. See Green v. Board of Appeal of Norwood, 358 Mass. 253 , 256 n. 2 (1970); Sheehan v. Zoning Bd. of Appeals of Plymouth, 65 Mass. App. Ct. 52 , 56 (2005); Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003). Though its review of the facts must be de novo, this court must also accord the decision below an appropriate level of deference. Thus, this court may only disturb those decisions that are “based on legally untenable grounds, or [are] unreasonable, whimsical, capricious or arbitrary.” Id. at 639. [Note 55]

More specifically, “judicial review [of a special permit] typically requires two principal inquiries, one of which involves an almost purely legal analysis and the other of which involves a highly deferential bow to local control over community planning.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. at 73. Thus, this court is to use “legal analysis… to decide whether the board’s decision was based on ‘a legally untenable ground,’ or, stated in a less conclusory form, [was based] on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws.” Id. citing, e.g., MacGibbon, supra.

The standard of review “is deferential only to the extent that the court gives ‘some measure of deference’ to the local board’s interpretation of its own by-law [although, i]n the main, . . . the court determines the content and meaning of statutes and by-laws and then decides whether the board has chosen from those sources proper criteria and standards to use in deciding to grant . . . [the] special permit application.” Britton, 59 Mass. App. Ct. at 73, quoting from APT Asset Mgmt., 50 Mass. App. Ct. at 138. Under this phase of review, the decisional law concerning the interpretation of zoning bylaws provides the relevant and applicable standards.

Thus, “[w]here the language of a [bylaw] is clear and unambiguous, it is conclusive as to legislative intent, and the courts enforce [it] according to its plain wording, which [they are] constrained to follow so long as its application would not lead to an absurd result.” Martha's Vineyard Land Bank Commission v. Board of Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 27-28 (2004), quoting from Pyle v. School Comm. of S. Hadley, 423 Mass. 283 , 285 (1996); Weitzel v. Travellers Ins. Cos., 417 Mass. 149 , 153 (1994); Commissioner of Rev. v. Cargill, Inc., 429 Mass. 79 , 82 (1999) (internal quotations and citations omitted).

B. Location of the Doherty lots in relation to the District.

Though, according to the Map, 114 Edward Foster Road and 118 Edward Foster Road lie within the Flood Plain and Water Shed Protection District, plaintiff argues that the Board applied an incorrect standard, wrongly placing the lots within the District. The Map shows the boundary of the District encircling the areas of First and Second Cliff at an elevation of ten feet, placing the encircled area outside the District, while placing the remainder of the barrier beach peninsula within the District. The Doherty lots are located between First and Second Cliff on the barrier beach, and are unmistakably included within the District.

The plaintiff contends that the intent of the Town Meeting and the drafters of the Map was to exclude from the District all land with an elevation greater than ten feet. As portions of the Doherty lots have elevations greater than ten feet, plaintiff reasons that the inclusion of the Doherty lots in the District was in error. In support of this theory, plaintiff references (a) the presence of the ten foot elevation marking the boundary of the District along First and Second Cliffs, (b) Scituate Zoning Bylaw Subsection 470.10, and (c) several prior decisions of the Scituate Zoning Board of Appeals (ZBA). [Note 56]

The court finds that the plaintiff’s arguments in this regard are unpersuasive. First, the use of the ten foot elevation around First and Second Cliffs as the boundary of the District does not imply that all those portions of the barrier peninsula which may have an elevation greater than ten feet, were meant to be excluded from the District. Credible testimony adduced at trial, compels a contrary conclusion. [Note 57] Furthermore, if land were included within the District that perhaps should not to have been so included (meaning that the hypothetical land is not subject to flooding), the bylaw provides a mechanism at Subsection 470.9, so as to allow for development, nonetheless.

Moreover, the plaintiff’s reliance on Subsection 470.10 of the Bylaw is similarly misplaced. That provision [Note 58] does reference contours; however, it does not support plaintiff’s argument that elevation is determinative of inclusion within the District. Instead, it merely provides that applicants for building permits on land which may be within the District, may have to provide a plan showing the elevation of the land at one foot contours.

Mr. Kalishes’ testimony on cross examination was not only credible, but was of relevance in this regard: [Note 59]

Q: Now you had testified earlier about section—what’s currently 470.10 of the bylaw, which is the procedure that deals with an applicant providing a plan with contours and elevations?

A: That’s correct. Yeah.

Q: And do you recall that provision?

A: I do.

Q: And that provision was in the 1972 version [of the bylaw]; correct?

A: That’s correct.

Q: You had testified that was a provision for dealing with properties that were at the edge zones; is that correct” A: That’s correct.

Q: The properties at 114 and 118 Edward Foster road, though, are not at the edge of those 10 foot contour lines; is that correct?

A: They are not.

Q: So they are clearly within the zone, as you can see it; do you agree with that?

A: I do agree with that. [Note 60]

Thus an applicant may be called upon to provide elevation contours to assist the building commissioner in determining if, in the first instance, the applicant’s land lies within the District. Note here that the relevant language in the bylaw is “may.” This provision would not, and did not, apply to properties such as the plaintiff’s which are clearly located, in their entirety, within the District.

Plaintiff has also cited several ZBA [Note 61] decisions in which special permits for construction within the District, were granted. They are offered in support of plaintiff’s position that elevation is the determinative factor as to whether a given parcel lies within the District, i.e. notwithstanding the obvious inclusion of such land within the District, as per the Map. Plaintiff urges this Court to accept the decisions of that Board for their precedential value.

In this regard the plaintiff, in her post-trial Memorandum of Law recites as follows at page 21:

Ms. Doherty submits that the decisions of the ZBA under the Flood Plain Bylaw are properly before the Court in this matter in the same way that decisions of the SJC are.

The court strongly disagrees with the stated proposition. It is simply unconvincing on its face. In any event, the ZBA is no longer the special permit granting authority, and has not been so since the 1988 Bylaw amendment. This court is simply not prepared to grant deference to the decisions of a board that ceased to be the permit granting authority under a prior iteration of the Bylaw, approximately twenty years ago. [Note 62]

Furthermore, suggestions [Note 63] that in the early 1990’s the planning board may have espoused a similar view of the Bylaw as plaintiff now advances, is without adequate support and is in any event, of little moment. [Note 64]

Finally, and perhaps most importantly, the simple fact is that the Bylaw and the Map locating the District are unambiguous. As noted supra, Subsection 470.3 provides that the “location and the boundaries of the [District] shall be as shown on [the Map] […] and said map with all its contents is hereby by this reference made a part of this zoning bylaw.” A court can interpret the boundaries of a zoning map if it is ambiguous and resolve the ambiguity in favor of the landowner. Jenkins v. Town of Pepperell, 18 Mass. App. Ct. 265 , 207 (1984) However, here, the Map itself is clear insofar as the lots at issue are plainly located within the District. "Where the language of a statute is clear, courts must give effect to its plain and ordinary meaning and the courts need not look beyond the words of the statute itself." Massachusetts Broken Stone Co. v. Town of Weston, 430 Mass. 637 , 640 (2000); LeClair v. Norwell, 430 Mass. 328 , 335 (1999); Pyle v. School Committee of S. Hadley, 423 Mass. 283 , 286 (1996). I conclude, based upon the unambiguous wording of the Bylaw and of the Map incorporated therein, that the plaintiff’s lots are located in their entirety within the Flood Plain and Watershed Protection District.

C. Are the Lots Subject to Flooding?

Section 470 of the Bylaw allows the Board to grant special permits for new residential construction on land located within the District upon a showing that the land is “in fact not subject to flooding and not unsuitable because of drainage condition.” The phrase subject to flooding is nowhere defined in the bylaw. In the instant case, the Board denied Ms. Doherty’s special permit applications because it found that the lots were subject to flooding. [Note 65] In so finding, the Board relied on the presence of FEMA Flood Zones and the fact that they encompassed the entirety of each lot. Secondarily, the Board relied upon testimony from numerous witnesses to the effect that they had personally observed the lots under flood conditions.

The plaintiff contends that the Board applied an incorrect definition of flooding, and in so doing, affected an impermissible amendment to the Bylaw. She further contends that the Bylaw prohibits the Board from considering FEMA Flood Zones and witness testimony. She urges that the only understanding of flooding applicable under the bylaw is the understanding present when the Bylaw was adopted in 1972 by the Town Meeting. [Note 66] In 1972, the scientific knowledge of flooding was limited to surge flooding. [Note 67] Furthermore, plaintiff maintains that based on the Bylaw, the determinative factor in establishing whether land is subject to flooding is elevation. Thus, because the District boundaries are at a ten foot elevation then one can determine if land located within the District is subject to flooding based upon its elevation. If it greater than ten feet, plaintiff argues, than it is not subject to flooding. Plaintiff states that under either definition of flooding, [Note 68] her land would be exempt, and thus be suitable for a special permit under § 470.

Principles of statutory construction direct the court to determine the legislative intent of the Town Meeting when enacting the Bylaw. Lowery v. Klemm, 446 Mass. 572 , 576 (2006); Commonwealth v. Valiton, 432 Mass. 647 , 650 (2000); Bd. of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 (1973). The language of a Bylaw "is the principal source of insight into Legislative purpose." Commonwealth v. Lightfoot, 391 Mass. 718 , 720 (1984); Hoffman v. Howmedica, Inc., 373 Mass. 32 , 37 (1977). "Where the language of a statute is clear, courts must give effect to its plain and ordinary meaning and the courts need not look beyond the words of the statute itself." Massachusetts Broken Stone Co. v. Town of Weston, 430 Mass. 637 , 640 (2000); LeClair v. Norwell, 430 Mass. 328 , 335 (1999); Pyle v. School Committee of S. Hadley, 423 Mass. 283 , 286 (1996). Nevertheless, a court may consider the “cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Moloney v. Boston Five Cents Savings Bank FSB, 422 Mass. 431 , 433 (1996); Telesetsky v. Wight, 395 Mass. 868 , 872-873, (1985). (emphasis added)

In determining the legislative intent underlying the word flooding this court looks to the ordinary meaning of the term, and the stated purpose of the Bylaw itself. Webster’s Seventh New Collegiate Dictionary (1967) defines a “flood” as “a rising and overflowing of water especially onto normally dry land.” Other courts have come to similar conclusions. See In re Katrina Canal Breaches Litigation, 495 F.3d 191, 214 (5th Cir. 2007) (“When a body of water overflows its normal boundaries and inundates an area of land that is normally dry, the event is a flood”); Northrop Grumman Corp v. Factory Mutual Ins. Co., 563 F.3d 777, 784 (9th Cir. 2008) (adopted common dictionary definition of flooding as “an overflowing or inundation of water over usually dry land.”). Moreover, at trial, Stanley Humphries, a coastal geologist, testified that he understood flooding to mean “overflowing water on land that’s normally dry.” [Note 69] Therefore, I conclude that the plain and ordinary meaning of flooding refers to the situation where water rises and overflows onto normally dry land. Furthermore, the use of the term flooding, unmodified, expresses an intent by the Town Meeting to use the plain and ordinary meaning of the word, which, in and of it self, is broad, and encompasses all varieties of water rising and overflowing on normally dry land.

Among the stated purposes which underlie § 470, is the protection of “the health and safety of persons against those hazards which may result from unsuitable development […] in areas subject to flooding.” [Note 70] Thus, the Bylaw is reflective of a traditional governmental police power [Note 71] as a basis for imposing development restrictions in the floodplain. Taking the purpose of the Bylaw along with the common, ordinary meaning of flooding, it is difficult to impute a legislative intent to formalistically limit land subject to flooding to either a definition based upon elevation, or to land that is affected solely by surge flooding. To do so would frustrate the stated purpose of the Bylaw, which is by no means limited to harms attendant upon surge flooding only.

That the drafters of the Bylaw and of the Map in 1972 could not have contemplated the scientific advances available today to predict where and how a piece of land will flood is of little consequence. [Note 72] Notwithstanding the plaintiff’s argument to the contrary, [Note 73] the Bylaw, on its face, does not purport to limit the types of flooding which may be considered by the Board in determining if land is subject to flooding. Had the Town Meeting wished to so restrict the definition, it could easily have done so. Rather, it adopted a broad term, without definition, leaving the Board with ample opportunity to import the latest science and technology of flooding, into its construction of the Bylaw. In sum, this Court will not infer a limitation when none is present. Dartt v. Browning-Ferris Indus., 427 Mass. 1 , 8 (1998).

Further, this court cannot fault the Board for its reliance, in part, on witness testimony. Indeed such testimony was offered at trial. As has been observed, the FEMA Flood Zones present on the lots, VE (EL 20), AO (2” Depth), and AE (EL11), notwithstanding their obvious technical aspects, all represent expected instances of water rising and overflowing onto normally dry land during a so-called hundred year storm. These classifications easily fall within the ordinary meaning of flooding. [Note 74]

Interestingly enough, the use of testimony by the Board seems to mirror the process adopted by Mr. Kalishes and Mr. Richardson in developing the Flood Plain Bylaw, in the first instance. [Note 75]

Thus having concluded that § 470 of the Town of Scituate Zoning Bylaw does not limit the types of evidence that may be presented to establish whether a parcel is subject to flooding, and having found that the legislative intent of the Bylaw was to use the plain and ordinary meaning of the phrase, this Court now turns the factual question whether the Doherty lots are in fact subject to flooding. At trial, credible, uncontroverted evidence was presented that 114 Edward Foster Road and 118 Edward Foster Road lie, in their entirety, in FEMA flood zones VE (EL20), AO (2’Depth), and AE (EL11). [Note 76] These zones represent the expected flooding during a hundred year storm. During such a storm, the VE (EL20) zone is expected to flood up to an elevation of twenty feet with waves greater than three feet in height. Zone AO (2’depth) is expected to have least two feet of water flowing over that area, and the AE (EL11) zone is expected to have waves, less than three feet in height, that will flow up to ground elevation of eleven feet.

Further, uncontroverted credible evidence was presented by several witnesses, who uniformly testified that they had observed the Doherty lots flood. The instances of observed flooding included the Blizzard of 1978, [Note 77] where water continuously washed over the lots for three days; the October 1991 Nor’easter, during which water washed continuously over the lots with four foot waves and deposited over five feet of sand on Edward Foster Road, [Note 78] as well as annual occurrences of more routine flooding. In further support of this testimony, the plaintiff herself stated that she had witnessed water coming across her property during certain storms.

I find, based on the foregoing analysis, that the lots are located within the Flood Plain and Watershed Protection District, that § 470 of the Scituate Zoning Bylaw does not limit the determination of flooding to either solely elevation or surge flooding, and that based upon the plain language of the Bylaw, the Board was not precluded from relying upon the witness testimony that it did, or the presence of FEMA Flood Zones, to establish that the Doherty lots are subject to flooding. Moreover, I readily conclude that the lots at 114 Edward Foster Road and 118 Edward Foster Road, Scituate, Massachusetts, are subject to flooding as that phraseology appears in the Bylaw. [Note 79] I conclude further, therefore, that the decision of the Board was in no way arbitrary, capricious or whimsical, nor was it legally untenable. [Note 80]

Consequently, the decision of the Board must be AFFIRMED. The plaintiffs’ complaint will therefore be DISMISSED,

Judgment to enter accordingly.

Harry M. Grossman


Dated: April 22, 20111.


[Note 1] Doherty owns 114 Edward Foster Road outright, together with a major ownership interest in 118 Edward Foster Road. She has entered into a purchase and sale agreement for the remainder of that interest.

[Note 2] This last referenced use concerning certain accessory structures is clearly not relevant to the case at bar.

[Note 3] Exhibits 18-25 were admitted de bene. At trial, the Court deferred a ruling upon them. Upon further consideration, I deem them admissible.

[Note 4] Tr. 1-115:9; Exhibit 1, 1972 Flood Plain and Watershed Protection District Map.

[Note 5] Originally constructed in 1910 and 1911. The seawall on the Doherty lots is the “existing seawall.” Tr. 1-66. See also, Tr. 1-71; Tr. 1-72.

[Note 6] See Exhibit 3, “Proposed House and Septic System Construction Plan” by Ross Engineering Company.

[Note 7] Tr. 1-71; Tr. 1-72.

[Note 8] See Exhibit 3 and Exhibit 4, “Proposed House and Septic System Construction Plan” by Ross Engineering Company.

[Note 9] Complaint, Appended Planning Board Decision, p.5.

[Note 10] Tr. 1-140; Tr. 1-141.

[Note 11] Id.

[Note 12] Testifying for the plaintiff on direct examination.

[Note 13] Tr. 1-142; Tr. 1-143. Kaslishes’ testimony continued on direct examination as follows:

Q: So the data you were gathering through this process…of consulting with people and having meetings, what you were gathering was data that would enable you to determine on the best available basis what areas of the town were subject to flooding?

A: That’s correct.

Q: And would it be fair to say that you believe that you plumbed the depths of available scientific knowledge at that time…?

A: That is correct.

[Note 14] Tr. 1-145.

[Note 15] Tr. 1-164; Tr. 1-165. Mr. Kalishes acknowledged on cross examination that there was nothing to exclude the consideration of FEMA flood zones in determining whether land was subject to flooding under the Bylaw “[e]xcept they didn’t exist. At that time. We’re talking the 70’s.” “Well in those days it was sort of like…I can’t give you a definition of flooding, but I know it when I see it. You know, that’s what it was. Over the years, it’s become much more technical…in nature.”

[Note 16] Tr. 1-144.

[Note 17] See Exhibit 1.

[Note 18] Tr. 1-151.

[Note 19] Tr. 1-148; Tr.1-149.

[Note 20] Tr. 1-118; Tr. 1-189.

[Note 21] Tr. 1-190.

[Note 22] See Exhibits 3 and 4 for placement of these boundaries on Proposed House and Septic System Construction Plan(s) for 114 Edward Foster Road and 118 Edward Foster Road, respectively. See also, Tr. 1-106.

[Note 23] Tr. 1-116.

[Note 24] See Exhibit 3, “Proposed House and Septic System Construction Plan” by Ross Engineering Company. See also testimony of Lester Smith (Tr. 1-106-108);

[Note 25] The so-called hundred year flood is the FEMA standard for projecting flood risk. What it means is that, statistically, such a flood has a 1% chance of occurring every year.

[Note 26] This court’s estimate.

[Note 27] EL in this designation is a reference to the word elevation.

[Note 28] Tr.1-197; Tr. 1-194.

[Note 29] Tr. 1-197; Tr. 1-198.

[Note 30] Tr. 1-195; Tr. 1-196.

[Note 31] Tr. 1-194.

[Note 32] Tr. 1-194; Tr. 1-202.

[Note 33] Tr. 1-107.

[Note 34] Tr. 1-196. Tr. 1-203.

[Note 35] Tr. 1-197. Tr. 1-203.

[Note 36] Tr. 1-197.

[Note 37] Tr. 1-201.

[Note 38] Tr. 1-202.

[Note 39] Tr. 1-202.

[Note 40] Tr. 1-203.

[Note 41] Tr. 2-5.

[Note 42] The October 1991 storm is popularly known as the “No-Name” or “Perfect” storm

[Note 43] Tr. 2-6.

[Note 44] Tr.2-7.

[Note 45] Tr. 2-13.

[Note 46] Tr. 2-15.

[Note 47] The storm lasted from February 6th to 7th. Stanley Humphries opined that the Blizzard of 1978 was probably a 75 year storm when it hit Scituate. (Tr. 1-199:14-17).

[Note 48] Tr. 2-22.

[Note 49] Tr. 2-29.

[Note 50] Tr. 2-31.

[Note 51] 124 Edward Foster Road is directly adjacent to 118 Edward Foster Road.

[Note 52] Fitzgibbon resides at 3 Roberts Drive.

[Note 53] Fitzgibbon stated that “if there is a significant high tide with a full moon and there is rain, there is always flooding in that area.” (Tr. 2-60:5-7).

Konde stated that he has observed “water roll over the beach, roll over the sea wall, which in many places is covered by sand. So it’s no obstruction at all. And then it rolls over, and then it goes towards the street.” (Tr. 2-51:19-22).

[Note 54] Tr. 1-73; Tr. 1-74.

[Note 55] This standard also accords with “the overarching general principle of deferential judicial review of administrative decisions,” wherein “if the question is fairly debatable . . . [a reviewing court] cannot substitute [its] judgment for that of the [agency].” Davis v. Zoning Bd. of Appeals of Chatham, 52 Mass. App. Ct. 349 , 356 n. 11 (2001), quoting from Conservation Commission of Falmouth v. Pacheco, 49 Mass. App. Ct. 737 , 740 n. 3 (2000) (internal quotations omitted).

[Note 56] Prior to 1988, the ZBA was the permit granting authority for §470 Special Permits. Owing to a Bylaw amendment in 1988, that duty is now vested in the Planning Board.

[Note 57] Tr. 1-154; Tr. 1-155. Vincent Kalishes III on cross examination:

The intent of the map is to say that everything on Edward Foster Road, until you reach a 10-foot contour going up First Cliff or going up Second Cliff, is within the zone.

Q: As you read this 1972 map, as the drafter, are those 114 and [118] properties included or excluded from the district?

A: They are in the district.

[Note 58] Exhibit 5, Town of Scituate Zoning Bylaw §470 “Flood Plain and Watershed Protection District”, Subsection 470.10 Building Permits:

Whenever an application is made for a building permit on land which the building commissioners believes may involve the use of land in the Flood Plain and Watershed Protection District, he or she may require the applicant for such permit to provide as part of such application a plan of the lot on which said buildings is intended to be built, showing elevations of the land contours at one foot intervals, referred mean sea level datum and certified by a registered land surveyor.

[Note 59] Tr. 1-157; Tr. 1-158.

[Note 60] See also testimony of Laura Harbottle, the Scituate Town Planner at Tr. 1-176; Tr. 1-177.

[Note 61] See Exhibits 21 and 22.

[Note 62] See also in this regard, Building Inspector of Lancaster v. Sanderson, 372 Mass. 157 , 162 (1976). The Court observed that a municipality cannot ordinarily be estopped by the acts of its officers from enforcing its zoning bylaw or ordinance.

[Note 63] Tr. 1-125 through Tr. 1-128.

[Note 64] It is noteworthy that plaintiff’s witness, Ralph Crossen, Scituate Building Commissioner from 1990 through 1994, also testified to granting building permits in apparent contravention of the applicable Bylaw provisions.

[Note 65] Evidence was presented to the Board and at trial regarding the drainage conditions of the lots. However, as the bylaw is worded in the conjunctive, “not subject to flooding and not unsuitable due to drainage conditions” the Board did not reach the issue of drainage conditions.

[Note 66] The bylaw has been amended somewhat since 1972, but in substance, is the same as at the time of adoption. A primary change in 1988 concerned the replacement of the zoning board with the planning board as the special permit granting authority under Section 470.

[Note 67] Tr. 1-190.

[Note 68] Surge flooding, the only type of flooding considered in 1972, or flooding predicated solely upon elevation.

[Note 69] Tr. 1-190.

[Note 70] Subsection 470.1 PURPOSE

The purpose of the Flood Plain and Watershed Protection District is:

A. To protect the health and safety of persons against those hazards which may result from unsuitable development in marshes, bogs and lowlands, or along ponds or watercourses, or in areas subject to flooding.

B. To conserve the values of lands and buildings in such flood-prone areas.

C. To facilitate the adequate protection of the community water supply through preservation and maintenance of the ground water table.

D. To protect and preserve the inland marshes, bogs, ponds, and watercourses and their adjoining wetland soils in order to safeguard the purity of inland and coastal waters and for the protection and propagation of the food chain supportive of marine life.

E. To encourage the most appropriate and suitable use of the land.

F. To preserve and increase the amenities of the town.

This section does not grant any property rights; it does not authorize any person to trespass, infringe upon or injure the property of another; it does not excuse any person of the necessity of complying with other sections of this bylaw or other applicable laws, regulations or bylaws.

[Note 71] In Turnpike Realty Company v. Town of Dedham, 362 Mass. 221 (1972), the Supreme Judicial Court recognized three basic public policy reasons for restricting use of floodplains: “(1) the protection of individuals who might choose, despite the flood dangers, to develop or occupy land on a flood plain; (2) the protection of other landowners from damages resulting from the development of a flood plain and the consequent obstruction of the flood flow; (3) the protection of the entire community from individual choices of land use which require subsequent public expenditures for public works and disaster relief.” Id. at 228.

[Note 72] Notably, when Kalishes and Richardson designed and drafted the Map, they interviewed local residents as to their observations of flooding. It is unlikely that the residents interviewed understood or were aware of the distinction between surge flooding and other observable instances of water flowing onto normally dry land, when they reported their observations.

[Note 73] See the plaintiff’s post-trial Memorandum of Law, p.17:

Today, the meaning of “flooding” in the Flood Plain Bylaw is exactly what it was in the 1970s; the definition has never been changed by town meeting. The result in this case has to be the same as the result would have been had the case come before the Court in the 1970s.

[Note 74] Plaintiff additionally suggests in her briefs that the Decision of the Board was arbitrary, capricious, whimsical and legally untenable because she received requisite approvals from the Massachusetts Department of Environmental Protection and the Scituate Conservation Commission. However, notwithstanding the criteria employed by such agencies in determining suitability, the Scituate Town Meeting in Zoning Bylaw §470 has made a determination to restrict residential development on land which is subject to flooding. The Planning Board’s decision deny the special permits based upon finding that the land is subject to flooding is not reflective of the other agencies standards or agendas, but reflects only the criteria delineated in § 470.

[Note 75] See ¶ 7 Findings of Fact supra. See also, Tr. 1-142.

[Note 76] See Facts 11-19.

[Note 77] See Facts at 21.

[Note 78] Exhibit 26 E-H are a collection of photographs taken by Jane Thompson of the lots during the October 1991 storm. The pictures show the ocean crashing over the sea wall.

[Note 79] Having found that the lots are subject to flooding, it is unnecessary to determine if the drainage conditions are suitable.

[Note 80] The court has found facts in detail and rendered rulings of law, to the extent they may be inconsistent with those requested by any party, they are hereby deemed denied. They are otherwise granted to the extent they are fully consistent with this Decision.