MISC 139663

January 29, 1991

Essex, ss.



This is a complaint pursuant to the provisions of G.L. c. 185, §l (j 1\2) and c. 240, §14A for a determination of the validity of the provisions of Section 4.3.4 of the Peabody Zoning Ordinance as applied to a parcel of land on Lake Street in Peabody in the County of Essex owned by the plaintiff, Americo Lopes, Trustee of the 841 Lake Realty Trust under a Declaration of Trust dated August 20, 1981 and recorded with Essex South District Deeds, Book 6853, Page 622. The City of Peabody is the defendant.

A trial was held at the Land Court on September 13, 1990 at which a stenographer was appointed to record and transcribe the testimony. The plaintiff, Alan F. Faubert, former City Engineer and Director of Public Services for the defendant and presently Superintendent of Public Works and Town Engineer for the Town of Swampscott, [Note 1] Ralph Gandolfo, Peabody Building Inspector and Dennis DiZoglio, Community Development Director for the City of Peabody testified at the trial. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. The sole question presented for decision is whether the provisions of the Zoning Ordinance which defines the boundaries of the wetlands conservancy district as all lands below the elevations shown on the applicable table, 88.5 feet for Devil's Dishful Pond as well as any area within thirty feet thereof, measured horizontally are arbitrary and unreasonable and if not, whether the ordinance constitutes a taking of the plaintiff's land.

On all the evidence I find and rule as follows:

1. The plaintiff is the owner of a parcel of land (the "locus") containing about 11,820 square feet on said Lake Street conveyed to him by Stephen Ferrari by deed dated August 19, 1981 and recorded with said Deeds, Book 6853, Page 633 (Exhibit No. 3A).

2. At the time of the plaintiff's purchase the Peabody Zoning Ordinance imposed the constraints set forth above which were adopted in 1975 and which the City Council refused to amend in 1980 other than to make changes to accommodate FEMA.

3. The methodology employed in 1975 to set the minimum permissible elevations was called the rational approach based on the one hundred year storm. An effort then was made to determine the magnitude of the storm at certain control points where there was a physical constraint on the passage of water such as a road. The capacity of the culvert below the road was measured, none of which was sufficient to pass the estimated water of a one hundred year storm. Since the road then was like a dam, obstacles to the passage on top of the road were checked to see how high water would have to reach to pass the road. At Devil's Dishful this resulted in the 88.5 foot figure.

4. This pond is a part of a watershed that begins at Suntaug Lake, extends into Lynnfield, drains into Winona Pond and then into Devil's Dishful from which it flows in a river to the Ipswich River.

5. The pipe in the culvert beneath the road from which measurements were made, Lake Street appears to have been enlarged since 1975 and flashboards installed. The significant change in determining the proper elevation, however, is a change in methodology mandated by the Department of Environmental Protection, Dk 55 or Dk20.

6. The plaintiff's expert testified that based on the more modern technique and the review of work by Boston Survey Consultants the maximum anticipated flood elevation was 86.6 feet.

7. The BSC report (Exhibit No. 15) was available at the meeting of the City Council, but the Planning Department in reliance on the City's expert Fay, Spofford & Thorndike, Inc. opposed the reduction. The BSC figures were for an August storm whereas Fay, Spofford & Thorndike, Inc. (Exhibit No. 6) recommended a consideration of figures in the season when the ground was less permeable.

8. The nature of a one hundred year storm is such that it generally occurs in the fall.

9. The difference in the minimum required elevation is determinative of the plaintiff's ability to build a residence on the locus. A proposed plot plan (Exhibit No. 4) entitled "Site Plan of Land in Peabody, Mass. for Charles Goutzis", dated December 17, 1981, by T & M Engineering Associates illustrates the topographical features of locus. While the site plan does not show the thirty foot setback from the pond, the layout of any proposed house could be revised to meet this requirement. The lot also conflicts with the minimum area requirements of the ordinance, but it may be a protected nonconforming parcel, a question I do not reach here.

10. The Peabody Zoning Ordinance sets forth in section 4.3.1 the purposes for the creation of flood boundary district and wetlands conservancy district as follows (Exhibit No. 1):

(a) To provide that lands subject to seasonal or periodic flooding, as described in this ordinance, shall not be used for residence or for other purposes when such use will endanger the health or safety of the occupants thereof or of the public generally;

(b) To minimize future flood damage by providing for protection and retention of existing water courses, water bodies and wetlands;

(c) To protect, preserve and maintain the water table and water recharge areas so as to preserve present and potential water supplies for the public health and safety; and

(d) To protect the community from unreasonable danger of pollution to its waterways by the detrimental use and development of lands adjoining these waterways. (Ord. of 10-23-80, §1)

11. The wetlands conservancy district is addressed in section 4.3.4 as follows:

(a) The wetlands conservancy district is hereby established as an overlay district, which is separate from the flood boundary district. For the purpose of the ordinance, the wetlands conservancy district shall be defined as including all lands generally shown on the accompanying zoning maps as referred to in section 3.2. The wetlands conservancy district includes all lands generally shown on the accompany #g zoning maps, as referred to in section 3.2 more particularly, the "City of Peabody, Mass.Wetlands Conservancy Map, 1" = 800'". These lands, adjacent to the city's important waterways, namely Ipswich River, Norris Brook, Proctor's Brook, Goldthwaite Brook, Tapley Brook and Strongwater Brook are subject to seasonal, periodic, or continuing flooding. The boundaries of the district are specifically described as all lands below the elevations shown on the following table, and in addition, any area within thirty (30) feet, measured horizontally, of the following waterways:

Location Elevation [ ]

Norris Brook

Ipswich River to Russell street ------------------------------------------------ 50.0

Russell Street to Lowell Street ------------------------------------------------ 53.5

Lowell Street to Mill Pond Dam ---------------------------------------------- 54.0

Mill Pond -------------------------------------------------------------------- 58.5

Elginwood Pond ------------------------------------------------------------- 59.0

Crystal Lake ---------------------------------------------------------------- 59.5

Upstream of Elginwood Pond from Crystal Drive to Pine Street ------------- 61.0

Upstream of Pine Street ---------------------------------------------------- 63.0

Devil's Dishful Pond -------------------------------------------------------- 88.5

Winona Reservoir ---------------------------------------------------------- 105.0

Suntaug Lake -------------------------------------------------------------- 121.5

12. Use of land within a wetlands conservancy district is limited as follows in subparagraphs (b) and (c) of section 4.3.4:

(b) Except as provided in paragraph "C" below, the following shall be prohibited within the wetlands conservancy district:

(1) New buildings or structures;

(2) Filling, dumping, excavation, removal or transfer of any earth material which will restrict or increase flood water flow or reduce the flood water storage capacity;

(3) Dumping of trash, rubbish or other waste materials;

(4) Storage of any material or equipment which is toxic or floatable.

(c) Subject to the approval of the conservation commission, the following uses shall be permitted in a wetland conservancy district:

(1) Land used for conservation of water, plants, and wild life;

(2) Recreation, including play areas, wild life preserves, golf, boating, fishing, and hunting where otherwise legally permitted;

(3) Grazing, farming, forestry and nurseries;

(4) Proper operation and maintenance of dams and other water control structures, including temporary alteration of the water level for emergency purposes;

(5) Any building existing may be repaired, rebuilt, modified or floodproofed in a manner which would not increase ground coverage. (Ord. of 10-23-80, §1)

The Peabody City Council in rejecting the plaintiff and his former partner, Charles Goutzis' request for a reduction of about two feet in the minimum elevation at Devil's Dishful Pond elected to preserve a margin of safety. This seems to be a peculiarly political decision properly to be made by the legislative body and not the courts.

It is well settled that "Every presumption is to be made in favor of the [ordinance], and its enforcement will not be refused unless it is shown beyond reasonable doubt that it conflicts with the Constitution or the enabling statute. (citations omitted) Where the reasonableness of a zoning by-law is fairly debatable, then the judgment of the local legislative body upon which rested the duty and responsibility for its enactment must be sustained (citations omitted)." Caires v. Building Commissioner of Hingham, 323 Mass. 589 at pages 594-595. Accord: Crall v. Leominster,, 362 Mass. 95 (1972) where nearly twenty years ago Justice Quirico lamented the proliferation of cases attacking municipal by-laws or ordinances.

The plaintiffs then contend that if the provisions of the ordinance are valid, their land has been taken without just compensation. It is not every reduction in governmental regulation that constitute a taking. In Caires at page 594 Justice Ronan stated that a zoning regulation "is good even though it may result in hardship to some landowner by depriving him of some beneficial use of his land or may adversely affect the value of some other properties in the vicinity of a newly created zone."

The regulation of construction in flood plain or wetlands conservancy districts has posed a difficult problem for the Supreme Judicial Court. The issues were discussed at length in Turnpike Realty Co. v. Dedham, 362 Mass. 221 , 235 (1972) and it was concluded that while, as here, the plaintiff was substantially restricted in the use of its land, this had to be weighed against the public interest and the potential harm from overdevelopment of a sensitive area. It was concluded that the imposition of limitations on land within the flood plain zone was a valid exercise of the police power and not an invalid taking. The reasons given by the Court are equally applicable here: the protection not only of those who might choose to develop or occupy the land in spite of dangers to themselves and their property, but also others in the community.

On all the evidence therefore I find and rule that the determination of 88.5 as the minimum permitted elevation in the wetlands conservancy district at Devil's Dishful Pond was a valid exercise of legislative discretion, was not arbitrary or unreasonable and is enforceable as applied to land of the plaintiff. I further find and rule that there has been no taking of the plaintiff's land for which he is entitled to compensation.

Judgment accordingly.


[Note 1] Between these two positions the witness served as City Engineer and Superintendent of Public Works for the City of Beverly.