Roger F. Turner, Trustee of the Turner Trust under a Declaration of Trust recorded with Norfolk Deeds in Book 2075, Page 508 (Exhibit No. 1) filed a complaint against the Town of Walpole in this Court alleging that certain 1977 and 1978 amendments to the provisions of the town's zoning by-law relative to flood plain zoning were unconstitutional. Specifically the plaintiff objects to the failure of such amendments to provide a mechanism for special permits to authorize in a flood plain district, where appropriate, new residential construction as well as "construction of new buildings, structures and related improvements to be used for industrial and manufacturing purposes" as authorized by an amendment to Section III - 8 (c)(2) of the zoning by-law adopted by the March 24, 1978 town meeting. Notice of the filing of the complaint was given to The Commonwealth of Massachusetts pursuant to the provisions of G. L. c. 231, §8, and the Attorney General appeared and participated in the trial.
A trial was had at the Land Court on September 18, 1978 at which a stenographer was appointed to record the testimony. All exhibits and chalks introduced into evidence are incorporated herein for the purpose of any appeal. At the commencement of the trial the parties presented the following stipulation of facts:
This cause came on to be heard upon a question of law, the facts having been established as herein stipulated:
1. The defendant is a municipal corporation located in the County of Norfolk. It was settled in 1659;
2. The plaintiff is trustee of the Turner Trust, an instrument dated July 10, 1934, recorded Norfolk Deeds Book 2075 page 508. Said instrument is a part of this stipulation by reference and as a public document;
3. The plaintiff owns real estate in the said Town having acquired the same in 1934 and in 1953. Property subsequently acquired is not subject to this action. Deeds dated July 10, 1934 and July 17, 1953 recorded Norfolk Deeds Book 2034 page 296 & Book 3229 page 379 are a part of this stipulation by reference and as public documents;
4. In 1955 a substantial part of the locus referred to in paragraph #3 was sub-divided for residential use. Plans dated March 31, 1955 plan #82 1956 and dated April 29, 1955 plan #209 1956 are recorded in Norfolk Deeds Plan Book 201. Said plans are a part of this stipulation by reference and as they are public documents. Part of this land is wetland.
5. The general terrain of this land is rolling with gravel banks and heavy wooded cover. This land and particularly the area under sub-division control is adapted for and the only reasonable use of the land is residential use. [Note 1] (emphasis added)
6. Pursuant to a special town meeting September 28, 1977 it was voted to amend its zoning by-law to cause compliance with the National Flood Insurance Program and section 1910.3 (c) of the Flood Plain Management Requirements. Said amendment revised section 111-8 of the zoning by-law. Permitted uses under 2-C includes "dwellings and structures lawfully existing prior to the adoption" of the amendment; "enlargement of a dwelling" and "enlargement of structures other than dwellings" and under "excluded uses" the amendment prohibits "new building(s) or structure(s) ... except as may be permitted in section C-2". (dwelling(s) or structure(s) lawfully existing prior to the adoption of the amendment). Said amendment is a part of this stipulation by reference and as a public document.
7. Pursuant to a second special town meeting June 19, 1978 it was voted to further amend section 111-8 of the zoning by-law to permit under C-2-1 "construction of new buildings, structures and related improvements to be used for industrial and manufacturing purposes". Said amendment is a part of this stipulation by reference and as a public document.
8. Said special town meetings of the defendant town adopted zoning maps designating areas of flood plain control. These maps are a part of this stipulation by reference and as they are public documents.
9. The recorded minutes of the special town meetings dated September 28, 1977 and June 19, 1978 and the National Flood Insurance Program created by the National Flood Insurance Act of 1968 as amended in the Flood Disaster Protection Act of 1973 are made a part of this stipulation by reference and as said documents are public records.
10. The National Flood Insurance Program which provides for a "flood plain district" pursuant to the Flood (Plain) Disaster Protection Act of 1973 is in sum:
The general purpose of such district is to regulate the use of land subject to seasonal and periodical flooding for residential or other purposes ...as may endanger the health, safety or welfare of the occupants thereof or the public generally...to protect the water table...to assure the natural flow pattern of water...to protect the town from detrimental use and development of land and water in the district.
Assented to by all parties:
s// Roger F. Turner attorney for claimant
s// Alphonse W. Query, Jr. town counsel of Walpole
except as to the first full sentence appearing on page 2.
The stipulation refers to the following instruments and plans:
a) The Declaration of Trust of the Turner Trust dated July 10, 1934 and recorded with Norfolk Deeds, [Note 2] Book 2075, Page 508;
b) Certified copy of deed from Roger F. Turner, Trustee of Turner Estate Trust to Roger F. Turner, Trustee of the Turner Trust, dated July 10, 1934 and recorded in Book 2034, Page 296;
c) Deed from The New York, New Haven and Hartford Railroad Company to Roger F. Turner, Trustee, dated July 17, 1953 and recorded in Book 3229, Page 379 together with Plans A and B annexed thereto;
d) Copy of a subdivision plan entitled "Plan of Land in Walpole, Mass.", dated April 29, 1955 by Norwood Engineering Co., recorded as Plan No. 209 of 1956 in Plan Book 201;
e) Copy of a subdivision plan entitled "Plan of Land in Walpole, Mass.", dated March 31, 1955, by Norwood Engineering Co., recorded as Plan No. 82 of 1956 in Plan Book 201;
f) Copy Certified by the Town Clerk of Section III - 8 of the Walpole Zoning By-Law entitled "Flood Plain and Water Conservation District Purposes and Uses" in effect as of September 28, 1977;
g) Minutes of Town Meeting of September 28, 1977;
h) Request of Town Clerk to Attorney General for approval of (g);
i) Letter of approval from Henry F. O'Connell, Assistant Attorney General, to Louis F. Hoegler, Town Clerk.
j) Action of Town Meeting held June 21, 1978 on zoning articles.
k) Copy of document entitled "National Flood Insurance Program" certified by Town Clerk.
Only one witness, Arthur Hacking, testified for the plaintiff. In addition, the plaintiff introduced the zoning maps of the Town of Walpole and the flood insurance rate maps, dated September 30, 1977 and March 24, 1978 as exhibits and certain plans and photographs as chalks. The defendant town introduced no evidence and moved for a directed verdict at the close of the plaintiff's case which motion is hereby denied as inappropriate.
The flood plain zoning is predicated on the National Flood Insurance Program and is designed to make the provisions of federal flood coverage available to residents of the Town. It establishes an overlay district in which permitted uses (with special permit or otherwise) are curtailed which, were it not for the danger of flooding, would be sanctioned. In Walpole in districts otherwise zoned for industrial or manufacturing but situated within a flood plain overlay new construction may be authorized by special permit, but no such provision authorizes new residential construction on a lot within the flood plain but itself free from the dangers of flooding. [Note 3] The plaintiff argues that this is not a valid exercise of the police power but is an unconstitutional taking of his property without compensation. The Walpole zoning by-law in effect as of September 28, 1977 did make provision for a special permit authorized by the Board of Appeals for construction or alteration of a building or the filling or excavation of land in a Flood Plain and Water Conservancy District. The town meeting of that date eliminated provisions for new construction; in approving the amendment the Assistant Attorney General in his letter of trans- mittal dated December 19, 1977 included the following paragraph:
This is a flood plain zoning by-law. You should consider amending the use regulations, sections C2 and C3, to allow additional construction consistent with the underlying zoning as long as the purposes of flood plain zoning are not affected. A ban on new buildings or structures may in some cases be confiscatory. Jenckes v. Building Commissioner of Brookline 341 Mass. 162 (1960).
Defendant's Exhibit 4A, B and C constitute the Flood Insurance Rate Map for the Town of Walpole. The plaintiff's land is located within Zone A9, an area of 100-year flood where base flood eleva- tions and flood hazard factors have been determined. The elevation reference marks for locus appear from Exhibit 4A to be 147.44 and 150.00 feet. The plaintiff admits that part of his land is wetland but claims that the general terrain is rolling with gravel banks and heavy wooded cover (see Chalk "D"; cf. Chalk "C"). The vacant land on the subdivision plans is shown as lots 12, 13, 17, 18 and 19 to the east of Mill Pond Road and lot number 33 to the west thereof. The other lots heretofore have been built upon. The plaintiff does not dispute the validity of flood plain zoning per se; his complaint is in its blanket application to his land with no provision for a special permit in areas where the topography suggests the absence of risk.
The 1977 amendment to the Walpole zoning by-law first set forth the following purposes for flood plain districts and then described the areas included therein.
1. 111-8. Flood Plain District
1. To provide that lands in the Town of Walpole subject to seasonal or periodic flooding as described hereinafter shall not be used for residence or other purposes in such a manner as to endanger the health, safety or welfare of the occupants thereof, or of the public generally.
2. To protect, preserve, and maintain the water table and water recharge areas within the Town so as to preserve present and potential water supplies for the public health and safety of the Town.
3. To assure the continuation on the natural flow pattern of the water courses within the Town, in order to provide adequate and safe flood- water storage capacity to protect persons and property against the hazards of flood inundation.
4. To protect the Town from the detrimental use and development of land and waters within the Flood Plain District.
Description of Areas included in Flood Plain.
1. The Flood Plain delineations are established by elevations of area subject to inundation by 100- year frequency floods, as delineated by the Federal Insurance Administration, U. S. Department of Housing and Urban Development.
2. The locations, boundaries and zone designations of the Flood Plain District are shown on a map entitled "Flood Insurance Rate Map (FIRM), Panel 2502540001 and 0002" dated September 30, 1977 which is hereby made a part of this by-law and which is on file in the office of the Town Clerk. Said map, together with all explanatory data thereon shall be deemed to accompany, be and is hereby made a part of the Zoning By-Law.
3. All that land along any named or unnamed water body or water course for a horizontal distance of fifty (50) feet from the permanent or seasonal banks thereof except as defined on the Flood Plain District Map.
4. In any case where a portion of a lot is included in the flood plain, the restrictions of the flood plain by-law will apply only to that portion which lies within the flood plain and not to that portion outside of the flood plain.
It cannot now be doubted that G. L. c. 40A, §2, as it existed prior to St. 1975, c. 808, authorized the adoption of zoning ordinances or by-laws creating flood plain districts. Turnpike Realty Co. v. Town of Dedham, 362 Mass. 221 (1972). There is nothing in the new zoning enabling act to require a different result. The problem with which we are faced is that which the Attorney General raised when he recommended not a flat prohibition on new construction in a flood plain district, but mechanics for authorizing such construction should a particular property have characteristics which vary from those of the remainder of the overlay district. His concern was with the confiscatory nature of an outright prohibition. The Town Meeting adopted this suggestion for industrial and manufacturing uses where permitted in the underlying zoning district, but the special permit concept was not adopted for residences. Differences in the degree of risk from the flooding of homes in the one instance and places of business in the other may have been the reason for the different treatment of the zones; this would justify a variation in the exercise of the police power applicable to these categories. The question is whether denial of the use of the plaintiff's property for new construction without affording some mechanism for securing authorization for building thereon should the plaintiff be able to establish that his land is not subject to flooding is confiscatory as the Supreme Judicial Court decided in Gem Properties, Inc. v. Board of Appeals of Milton, 341 Mass. 99 (1960), and Jenckes v. Building Commissioner of Brookline, 341 Mass. 162 (1960). Turnpike Realty strongly suggests that it is not; and while the by-law in the latter case differs from that now under consideration in that the special permit mechanism is lacking in Walpole and was provided in Dedham, a variance authorized by G. L. c. 40A, §10, [Note 4] as amended, would seem to afford the landowner sufficient protection in instances where his land does not suffer from the same infirmities of flooding as his neighbor's.
In any event this Court has insufficient evidence before it as to the characteristics of the plaintiff's land to conclude that it could not constitutionally be included in a flood plain district. To the extent that I am asked to rule that the by-law is invalid on its face, I decline so to do.
[Note 1] This language is that to which the town counsel has not assented.
[Note 2] Unless otherwise indicated, all recording references herein are to the Norfolk County Registry of Deeds.
[Note 3] Cf. G. L. c. 40A, §2: A zoning ordinance or by-law may provide that lands deemed subject to seasonal or other flooding shall not be used for residence or other purposes in such manner as to endanger the health or safety of the occupants thereof. However, authority to enact flood plain zoning is grounded in the general grant of power to zone for the public health, safety and welfare and is not limited by said sentence, Turnpike Realty Co. v. Dedham, 362 Mass. 221 , 238 (1972). See also St. 1975, c. 808, §2A Such regulations may include but are not limited to restricting, prohibiting, permitting or regulating:
1. Uses of land, including wetlands and land deemed subject to seasonal or periodic flooding;
[Note 4] St. 1975, c. 808 imposes a limitation upon use variances which is tied into the provisions of the local by-law or ordinance. In accepting the chapter the Town of Walpole authorized use variances.