369 Mass. 523

March 18, 1976

Plymouth County


A petition for rehearing was denied where the issues raised in the petition had been considered by this court in its original decision and where other concerns sought to be raised by several amici curiae in support of the petition with respect to the possible impact of the decision were not issues in the case. [524-525]. REARDON, J., with whom WILKINS, J., joins dissenting.

Following the decision ante, 512 (1976), the Supreme Judicial Court considered a petition for rehearing.

Donald L. Connors, Town Counsel, & Susan G. Kupfer, for the Board of Appeals of Duxbury, filed a petition for rehearing.

Francis X. Bellotti, Attorney General, Charles Corkin, II, Ellyn R. Weiss & Stephen M. Leonard, Assistant Attorneys General, for the Secretary of Environmental Affairs & another, amici curiae, submitted a brief.

Gregor I. McGregor for the Massachusetts Association of Conservation Commissions, amicus curiae, submitted a brief.

Douglas I. Foy, Alexandra D. Dawson, & Alan H. Kaufman, for Conservation Law Foundation of New England, Incorporated, amicus curiae, & Thomas B. Arnold, for Massachusetts Audubon Society, amicus curiae, submitted a brief.

R. Lisle Baker for the Environment Committee of the Boston Bar Association & another, amici curiae, submitted a brief.

Stuart DeBard, amicus curiae, submitted a brief.

Page 524

BRAUCHER, J. After our decision in this case, ante, 512 (1976), (MacGibbon III), the board filed a petition for rehearing pursuant to Mass. R. A. P. 27, 365 Mass. 874 (1974). We also received briefs in support of that petition from several friends of the court. [Note 1] We now deny the petition.

MacGibbon III, like MacGibbon v. Board of Appeals of Duxbury, 347 Mass. 690 (1964) (MacGibbon I), and MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 (1970) (MacGibbon II), was based on the zoning by-law of the town as it existed before it was amended in 1971 and on G. L. c. 40A before its amendment in 1975. In MacGibbon I the board denied the permit to excavate and fill because of sewage problems, and we reversed because no building permit was in issue. In MacGibbon II the board denied the permit because it interpreted the by-law as inapplicable to coastal wetlands. We upheld the validity of the by-law, but reversed because the board had misinterpreted it.

In MacGibbon III we adhered to our decisions in MacGibbon I and MacGibbon II. We also held that the uses of the plaintiffs' land, as testified to by the board's expert, were not "practical" in the sense used in MacGibbon II, in defining the power of a town under The Zoning Enabling Act, and that outright denial of the permit because of flooding and erosion problems was improper where the problems could be met by conditions and safeguards. We pointed out that the plaintiffs will still have the burden of convincing other appropriate authorities that subsequent permits should be issued, but we did not pass on any issue with respect to such permits. Nor did we discuss or decide any constitutional issue whatever. So far as the board's petition relates to the

Page 525

issues decided in MacGibbon III, it brings to us nothing that was not considered in that decision.

The main concern expressed by the friends of the court is with the possible impact of the decision on a variety of State and Federal conservation programs. [Note 2] Thus one friend of the court asserts that MacGibbon III may directly affect by-laws adopted under the recently amended Zoning Enabling Act, G. L. c. 40A, as amended by St. 1975, c. 808, Section 3. Another suggests that our decision questions the legality and wisdom of the statutes governing protection of coastal and inland wetlands, G. L. c. 130, Section 105; c. 131, Section 40A. The Attorney General expresses the fear that language in the decision "not necessary to the result" raises serious questions about the validity of several State statutes "not considered by the Court." We did not discuss or decide any such issue in MacGibbon III. We do not decide issues not before us, and we ordinarily try to resolve a case without reaching constitutional issues.

Rehearing denied.

Page 526

REARDON, J. (dissenting, with whom Wilkins, J., joins). I dissent from the denial of the petition for rehearing for the same reasons I gave in the dissent to the opinion as first issued. While I welcome the attempt to narrow the scope of that opinion I believe that the concerns expressed in the briefs filed by the board, the Attorney General, and the friends of the court on the petition should be heard in argument before us since they have not been put to rest by the court's supplementary opinion.


[Note 1] The Attorney General, the Boston Bar Association, the Massachusetts Audubon Society, the Conservation Law Foundation of New England, Incorporated, the Massachusetts Association of Conservation Commissions, and Mr. Stuart DeBard.

[Note 2] The State and Federal programs and statutes are: G. L. c. 21, Section 17B (regulation of scenic and recreational rivers); c. 34, Section 25 (acquisition of land by counties to conserve open spaces); c. 40, Section 15C (designation of scenic roads); c. 40A, as amended by St. 1975, c. 808, Section 3 (The Zoning Act); c. 130, Section 105 (protection of coastal wetlands); c. 131, Section 39A (regulation of mountain regions); c. 131, Section 40 (regulation of filling or altering wetlands); c. 131, Section 40A (protection of inland wetlands); c. 270, Section 16 (disposal of rubbish in coastal or inland waters); St. 1974, c. 637 (An Act protecting land and water on Martha's Vineyard); 16 U.S.C. Sections 1451-1464 (Supp. IV, 1974) (Coastal Zone Management Act of 1972); 33 U.S.C. Sections 401-413 (1970) (protection of rivers and harbors); 33 U.S.C. Sections 1251-1376 (Supp. IV, 1974) (Federal Water Pollution Control Act and Federal Water Pollution Control Act Amendments of 1972); and 42 U.S.C. Sections 4001-4128 (Supp. IV, 1974), amending 42 U.S.C. Sections 4001-4127 (1970) (National Flood Insurance Act of 1968 and Flood Disaster Protection Act of 1973). There is also a statement by one of the friends of the court that the decision in MacGibbon III will have an adverse effect on the computation of local property taxes.