ALBERT M. PRICE and VIRGINIA L. PRICE vs. VIRGINIA VALIELA, RAYMOND LABOSSIERE and RICHARD ARMSTRONG, as they comprise the BOARD OF SELECTMEN OF THE TOWN OF FALMOUTH.

Miscellaneous Cases No. 131394 and 134179 are appeals, pursuant to G.L. c. 40A, §17, of decisions of the Defendant Board of Selectmen ("Board"), in which the Board denied the respective applications of Albert M. and Virginia L. Price ("the Prices") and Robert Talanian ("Talanian") (collectively referred to herein as "the Plaintiffs"), for special permits to erect piers, ramps and floats on the Moonakis River in the Town of Falmouth. The cases were consolidated for trial on October 26, 1989.

A trial was held on August 20, 1989, at which time a stenographer was appointed to record and transcribe the testimony. Four (4) witnesses testified and eight (8) exhibits, all of which are incorporated herein for purposes of any appeal, were accepted into evidence. At the time of trial, the parties filed a statement of certain stipulated facts, with exhibits attached thereto.

On all of the evidence, including the facts and exhibits so stipulated, I make the following findings:

1. As evidenced by Certificate of Title No. 106268, the Prices are the owners of a vacant parcel of registered land, located at 129 Meadowneck Road in the Waquoit section of East Falmouth. This property appears on Land Court Plan No. 32828-B and is shown as Parcel 2, Lot 5, in Section 5 of Map No. 31 of the Falmouth Assessors' Maps (Exhibit No. 7).

2. As evidenced by Certificate of Title No. 108560, Talanian is the owner of a parcel of registered land located at 137 Meadowneck Road in the Waquoit section of East Falmouth. This property appears on Land Court Plan No. 32828-B and is shown as Parcel 2, Lot 2, in Section 5 of Map No. 31 of the Falmouth Assessors' Maps (Exhibit No. 7).

3. The Prices' land is bounded northwesterly by the Moonakis River (at times referred to herein as "the River"), 177 feet and Talanian's land is bounded northwesterly by the River, 175 feet.

4. The Moonakis River is a navigable tidal river, which flows into a shallow, saltwater estuary known as Waquoit Bay (at times referred to herein as "the Bay"), and then into Vineyard sound. The River's average depth at low tide is approximately 1.5 feet and, at high tide, approximately 2.5 feet. On occasion, boats traveling on the River have run aground, causing temporary gouges in the River floor.

5. Waquoit Bay is a valuable source of shellfish within the Town of Falmouth, one of its most productive areas lying at the mouth of the Moonakis River. The River in the immediate vicinity of the respective Plaintiffs' proposed piers, ramps and floats, however, contains no shellfish. Accordingly, the erection of such structures per se, as proposed by the Plaintiffs, will not produce any adverse effects on this resource.

6. In November of 1979, state and federal agencies designated Waquoit Bay as an "Area of Critical Environmental Concern" ("ACEC"), as authorized by G.L. c. 21A, §2 (7). The ACEC includes the Moonakis River, the site of the Plaintiffs' respective properties.

A. The Prices' Special Permit Application

7. On September 13, 1988, the Prices filed a Notice of Intent, pursuant to G.L. c. 131, §40, with the Falmouth Conservation Commission ("Conservation Commission"). By this Notice, they requested permission to erect a recreational pier, ramp and float on the River. On this same date, the Prices also applied to the Board for a special permit, pursuant to Sections 4300, 4310, 4320 and 4330 of the Falmouth Zoning By-laws ("By-law") (Exhibit No. 4 ), to erect said pier, ramp and float (Price Stipulated Facts, Exhibit "A"), the approximate location of which is demarked by the letter "P" on a plan entitled, "Waquoit Bay, Area of Critical Environmental Concern" ("ACEC Plan") (Exhibit No. 1).

In conjunction with these filings, the Prices also provided the Conservation Commission and Board with a plan of their proposed construction, entitled, "Plan of Proposed Pier Prepared for Albert M. Price in Falmouth, dated July 29, 1988 ("Price Plan") (Exhibit No. 3).

8. The pertinent portions of Sections 4300, 4310, 4320 and 4330 of the By-law read as follows:

4300. WETLANDS REGULATIONS

4310. Purpose. The purpose of this section is to provide for the reasonable protection and conservation and protection of certain irreplaceable wetlands, their resources and amenities, for the benefit and welfare of the present and future inhabitants of the Town.

4320. Applicability. Any person wishing to perform or cause to be performed, any of the following acts or operations shall first obtain a special permit from the Board of Selectmen:

a) Obstructing, filling, dredging, excavating or changing the course or stream of any tidal water.

b) Filling, excavating, diking, bulkheading, or riprapping within any part of any swamp marsh or tidal marsh, or in or along the shore of any pond, bay, harbor or tidal river, so as to alter the shoreline of said swamp, marsh or body of water, or separate any section of said swamp, marsh or body of water from the main part.

4330. Decision. Following the public hearing and with due regard to the effect on the immediate area and general welfare of the Town, the Board . . . shall grant or deny a special permit or any of the foregoing acts or operations. In granting a permit the Board may impose reasonable restrictions and time limitations on the work to be done. In so doing they shall be guided by what in their judgement is desireable to protect and conserve the shellfish and other aquatic resources of the Town . . . .

9. Although the term "aquatic resources" is not specifically defined in the By-law, testimony reveals that the Board includes marinas, public beaches and private docks as such a resource.

10. Section 4500 of the By-law governs Areas of Critical Environmental Concern in Falmouth. Section 4510 states that the purposes of such designation are to protect environmental values significant to flood control, to prevent storm damage and to protect waters containing shellfish and fisheries, as well as other public interests protected by the Wetlands Protection Act, G.L. c. 131, §§40 and 40A, and the Town's Wetlands Protection By-law. [Note 1] Pursuant to Section 4530, there shall be no construction of structures, other than accessory buildings, within the ACEC (emphasis added).

11. An "accessory building" is defined in Article II of the By-law, as follows:

A building such as a garage or shed, located on the same lot with, and accommodating a use accessory to, the principal permitted use of the premises.

12. A "structure" is defined in Article II of the By-law, as follows:

Anything constructed or erected, the use of which requires fixed location on the ground or attachment to something located on the ground, including tennis courts and swimming pools . . . or gas or liquid storage tanks if principally above ground, but not including retaining walls or fences.

13. On October 17, 1988, the Chief Harbor Master of Falmouth presented the Board with a favorable report on the Prices' proposed construction plans. This report states as follows (Price Stipulated Facts, Exhibit "B"):

No affect [sic] on moorings or navigation . . . No affect [sic] on navigation, relocation will not affect moorings.

14. On October 18, 1988, the Falmouth Shellfish Warden reported to the Board on the Prices' proposed construction plans, as follows (Price Stipulated Facts, Exhibit "C"):

OK - 30 days notice before work commenced.

15. On October 20, 1988, the Board held a duly advertised public hearing on the Prices' special permit application. This hearing was continued to December 1, 1988. At some time prior to the December hearing date, the Board and the Shellfish Warden took a view of the Moonakis River and the surrounding properties, including the Prices' land.

16. On November 1, 1988, the Conservation Commission issued an Order of Conditions permitting the Prices' proposed construction (Price Stipulated Facts, Exhibit "D").

17. On December 12, 1988, the Board entered a unanimous decision to deny the Prices' special permit application for the following reasons (Price Stipulated Facts, Exhibit "E"):

1. To protect and conserve the shellfish and other aquatic resources of the Town;

2. To prevent further intrusion into this declared Area of Critical Environmental Concern;

3. And to maintain the Moonakis River in its natural state as a unique resource for the entire Town.

The Board took into consideration the fact that:

1. The Moonakis River is a relatively shallow river, particularly at the mouth (only 2-3 feet at high tide);

2. There is a large and valuable shellfish bed at the mouth;

3. Boat traffic is detrimental to the shellfish beds in this area because it stirs up sediments which smother the shellfish, and because boats gouge out the bed when they run aground while trying to cross the mouth;

4. The presence of piers and floats tends to increase boat size and boat traffic, which will compound the problems in #3;

5. The presence of piers and floats increases the problems of winter icing, which add stress to this ecologically sensitive area;

6. The presence of proposed pier and floats would be the first in an otherwise visually pristine area (except for one 31 year old dock which pre-dates the Wetland Regulations).

B. Talanian's Special Permit Application

18. On February 3, 1989, Talanian applied to the Board for a special permit, pursuant to Sections 4300, 4310, 4320 and 4330 of the By-law, to construct a recreational pier, ramp and float on the River (Talanian Stipulated Facts, Exhibit "A"), the approximate location of which is demarked by the letter "T" on the ACEC Plan. Talanian's proposed construction plans are shown on a plan entitled "Plan of Proposed Pier Prepared for B. Robert Talanian for Lot 4 Meadow Neck Road in Falmouth", dated January 23, 1989 ("Talanian Plan") (Exhibit No. 5).

19. On March 8, 1989, Talanian filed a Notice of Intent, pursuant to G.L. c. 131, §40, with the Conservation Commission. By this Notice, he sought permission to construct the aforesaid pier, ramp and float.

20. Talanian's proposed construction plans are shown on a plan entitled "Plan of Proposed Pier Prepared for B. Robert Talanian for Lot 4 Meadow Neck Road in Falmouth", dated January 23, 1989 ("Talanian Plan") (Exhibit No. 5).

21. On March 8, 1989, the then Deputy Harbor Master of Falmouth furnished the Board with a satisfactory report on Talanian's proposed construction plans. This report states as follows (Talanian Stipulated Facts, Exhibit "B"):

No objections. Does not interfere with moorings or navigation.

22. On March 16, 1989, the Falmouth Shellfish Warden reported on Talanian's proposed construction plans, as follows (Talanian Stipulated Facts, Exhibit "C"):

NOTE: The inlet and surrounding area into Moonakis River are productive shellfish beds. The shallow river channel should be marked to protect the shellfish flats from boats going aground. 30 days notice.

23. On March 16, 1989, the Board held a duly advertised public hearing on Talanian's special permit application. This hearing was continued to April 20, 1989.

24. On April 12, 1989, the Conservation Commission issued an Order of Conditions permitting the construction proposed by Talanian (Talanian Stipulated Facts, Exhibit "D").

25. On April 24, 1989, the Board filed its decision to deny Talanian's special permit application, for the same reasons as stated above with respect to the Prices' application (Talanian Stipulated Facts, Exhibit "E).

In reviewing appeals brought pursuant to G.L. c. 40A, §17, the trial judge hears the matter de novo, makes his or her own findings of fact, and on the facts so found, affirms the board's decision unless it is found to rest on a legally untenable ground or is unreasoable, arbitrary, whimsical or capricious. MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 486 (1979); Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980). Insofar as the court's review is limited to the legal validity of the board's actions in granting or denying the special permit, Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147 , 154 (1976); Wolfman v. Board of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983), it may not substitute its judgment for that of the board. Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277-278 (1969); Subaru at 486-488; Garvey at 856.

Viewing the decision of the Falmouth Board of Selectmen in light of Section 4300 of the Zoning By-law, it appears that the Board's main ground for denying the Plaintiffs' respective special permit applications is its concern that the construction of the proposed piers, ramps and floats on the Moonakis River will attract boats, which are greater in both number and size, thereby adversely impacting upon existing shellfish beds and other "aquatic resources". Additionally, the Board's decisions reflect its interest in preserving what it considers to be a pristine area of Falmouth.

The foregoing facts indicate that the Waquoit Bay and Moonakis River are navigable bodies of water, with shallow depths at both high and low tides. The relatively low depths of the River have, on occasion, resulted in boats running aground. Testimony offered at trial, however, reveals that any gouging of the River floor, which may be caused by such unintentional grounding, quickly fills in. Moreover, inasmuch as the area of the River immediately surrounding the Plaintiffs' proposed piers, ramps and floats contains no shellfish, the grounding which the Board foresees in conjunction with boats traveling to and from these proposed structures, will not damage or destroy this natural resource. Assuming, however, that the Board's underlying concern in this regard is directed towards the preservation of the shellfish beds lying at the mouth of the River, I note that any damage to such beds is most likely to occur during the grounding of boats at such location, which event is in all likelihood both rare and, undoubtedly, unintentional and which would be minimized if not completely eradicated by the installation of markers or buoys as suggested by the Shellfish Warden. These factors notwithstanding, however, I find that the Board's denial of the special permits to construct these piers will not prevent the parties hereto from keeping and using boats in this area of the River. In addition thereto, I note that both the Falmouth Harbor Master and Deputy Harbor Master have reported that the Plaintiffs' proposed construction will neither interfere with, nor adversely impact on, moorings or navigation on the River. Similarly, insofar as the Board has asserted that the term "aquatic resources", as it is used in Section 4330 of the By-law, includes marinas, public beaches and private docks, the evidence fails to establish that the Plaintiffs' proposed construction plans will have any negative impacts on these or any similar resources. Lastly, as to the Board's interest in preserving the pristine state of the Moonakis River, I first note that Section 4300 is devoid of any reference to such aesthetic considerations as a criterion to be considered in connection with special permit applications brought under such portion of the By-law. The absence of such reference notwithstanding, however, I find that the Board has failed to advance sufficient evidence as to how the addition of these proposed piers, ramps and floats will, in and of themselves, detract from the area's overall beauty.

Because the Plaintiffs' respective properties lie in an area of the Moonakis River which has been designated an Area of Critical Environmental Concern by state and federal agencies, their proposed construction plans are also subject to the regulations set forth in Section 4500 of the By-law. Section 4530, which the Board principally relies on herein, specifically provides that, within the ACEC, "there will be no construction of structures other than accessory buildings as defined." Referring to Article II of the By-law, "accessory buildings" are defined as buildings such as garages or sheds, located on the same lot with, and accommodating a use accessory to, the principal permitted use of the premises. A literal reading of the by-law might indicate that the structures proposed by both the Plaintiffs Price and the Plaintiff Talanian are not "accessory buildings" and therefore are prohibited within the ACEC. If such were to be the law, however, it would appear that most, if not all, structures enumerated in the by-law could be accommodated by the expediency of enclosing them in a shed. Such interpretation would permit the Plaintiffs to construct a boat house, possibly extending in part over the river, but not an uncovered pier. Rather than adopt such interpretation, I find that the controlling word is "accessory" and find that the proposed structures may be allowed provided they are accessory to the principal use of the lot. If such principal use is residential or recreational, a pier for the private use of the owners would be accessory. Such use would be limited to the owner and a reasonable number of guests but would not permit the Plaintiffs to operate a communal or commercial pier or to allow persons not affiliated with the property to "store" boats at, or make other use of, the pier. There is, however, insufficient evidence in the record to determine what is the principal use or proposed use of the lots. Accordingly, the decisions of the Board are remanded thereto for further action not inconsistent herewith.

While it is true that Section 4330 of the by-law permits the selectmen to "be guided by what in their judgement is desireable . . .", such judgment must be reasonably supported by facts. I do not find sufficient facts evident in this proceeding to support their position.

The Plaintiffs have filed requests for findings of fact and rulings of law, which I have considered. Certain of these requests have been incorporated herein. I have taken no action with respect to the remainder, inasmuch as I have made my own findings and ruling as to those facts and rules of law which I deem most pertinent hereto.

Judgment accordingly.