By the Court (KANTROWITZ, BERRY & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2008, Maryann Doherty proposed to build a single-family home on each of two adjacent land lots that she owned in the town of Scituate (town). The lots are within the local flood plain and watershed protection district as shown on the town zoning map. Doherty applied to the town planning board (board) for special permits to authorize the building projects.
Doherty based her permit applications on § 470.9 of the town zoning by-law (by-law), which specifies the criteria to be met for the issuance of a special permit for a proposed use of land in the flood plain. The board may issue a permit if a showing is made that the land is “not subject to flooding” and not “unsuitable because of drainage conditions” for a use otherwise permissible under the by-law.
Following public hearings on the matter, the board voted three to two to deny the applications. The board did not offer any particularized reasons for the denial other than its stated conclusion that “both sites do not meet the criteria for Section 470.9.” Doherty sought review under G.L. c. 40A, § 17, in the Land Court, where after a bench trial, a judge affirmed the board's denial. Doherty appeals from the resulting judgment. On appeal, the parties focus and confine their arguments to § 470.9, the meaning of which has been the subject of sharp disagreement. They concur, however, that the sole question before us is: what does “subject to flooding” mean in § 470.9 of the by-law, which does not offer an express written definition. “In the absence of an express definition, the meaning of a word or phrase used in a local zoning enactment is a question of law” for a court to answer consistent with “ordinary principles of statutory construction.” Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283, 290 (1981). We begin with the facts material to the special permit applications, and an outline of the by-law as it applies to the lots in question.
“Specific provisions of a zoning enactment are to be read in the context of the law as a whole, giving the language its common and approved meaning ‘without regard to ... [the court's] own conceptions of expediency.’ “ Ibid., quoting from Kurz v. Board of Appeals of N. Reading, 341 Mass. 110, 112 (1960). See Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 477 (2012).
This summary is from the judge's factual findings, which are not contested, with some supplementation from undisputed aspects of the record.
Facts. Doherty owns two adjacent unimproved lots known as 114 and 118 Edward Foster Road. The land is part of a small narrow peninsula bounded easterly by Massachusetts Bay, and westerly by Scituate Harbor. The peninsula is oriented roughly in a north-south direction; at its opposite ends are two coastal bluffs, First Cliff and Second Cliff, both of which have residential enclaves. Edward Foster Road, a public way between these cliffs, is itself part of a barrier beach. On the ocean side of the way (facing Massachusetts Bay), a fortified seawall abuts residential homes, and Doherty's lots, which are situated in this area.
In the mid-Nineteenth Century, ancestors of Doherty's late husband left Ireland, settled in Scituate, and came to acquire extensive land holdings on Second Cliff and neighboring plots, at a time when this area was once a remote island. As of 1971, Doherty and her husband lived in a small cottage located on Edward Foster Road. They later took down the cottage and had a home built on the site, where Doherty resided until 1993 when she sold it, retaining the lots now at issue.
The permit application confirmed that each home would be built on pilings, the top of which would be at an elevation of twenty-one feet above mean sea level (“m.s.l.”). Engineered and surveyed plot plans, which Doherty had offered to the board, demonstrated that the portions of each lot bearing the building footprint are between fourteen and sixteen feet above m.s.l. in elevation. Doherty obtained all other State and local permits for the project. Her representative, an expert in the field of coastal geology, addressed the board and testified at trial, opining that drainage on the lots was satisfactory for the proposed use; no proof was offered to rebut the opinion or raise doubt as to the suitability of drainage at the site.
By-law. 1. Flood zone. In 1972, the town meeting amended the by-law by establishing a flood plain and watershed protection (“FPWP”) district. The FPWP district is an overlay district superimposed over other zoning districts in the town. By-law § 470.2. Among other purposes, the FPWP district is intended to “protect the health and safety of persons against those hazards which may result from unsuitable development ... in areas subject to flooding.” Id. at § 470.1(A). The necessity of “flood plain zoning to reduce the damage to life and property caused by flooding is unquestionable.” Turnpike Realty Co. v. Dedham, 362 Mass. 221, 233 (1972), cert. denied, 409 U.S. 1108 (1973). Turnpike Realty is one of the seminal cases respecting local flood plain zoning.
An “overlay” district imposes a regulatory scheme on top of an underlying, existing district, often for purposes of protecting a significant resource or historic area. See DiRico v. Kingston, 458 Mass. 83, 85 (2010) (smart growth); Davis v. Zoning Bd. of Chatham, 52 Mass.App.Ct. 349, 351 & n. 5 (2001) (coastal conservancy).
2. Boundaries. Section 470.3 of the by-law provides that the “locations and boundaries” of the FPWP district “shall be as shown on a map entitled ‘Town of Scituate, Massachusetts, Flood Plain and Watershed Protection, 1972’ “ (on file at town hall and hereinafter referred to as “1972 map”). Section 470.3 commands that the 1972 map “with all its contents is hereby ... made a part of this zoning bylaw.”
Near the lots, the applicable FPWP district boundaries on the 1972 map are shown by a dark broken line, bearing the “10 FOOT CONTOUR” legend, which encircles First Cliff and Second Cliff. The 1972 map indicates “all contours = m.s.l.” Land within the dark broken line is exempt from FPWP district zoning. FPWP district boundaries generally follow the natural profiles of the land; in some instances, the boundary is identified by references to town landmarks, such as the “50 Foot Sea Wall” or “Jericho Street.” Doherty's lots on Edward Foster Road, between the cliffs, lie in the surrounding FPWP district.
3. Special permit. Under § 470.9 of the by-law, the board may issue a permit to an owner whose land is in the FPWP district. Section 470.9, titled “Determination of Suitability,” provides in part:
“If any land in the [FPWP] 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.”
Neither party suggests that § 470.9 supplies anything less than reasonably precise standards for the permit-granting authority to consider in acting on an application.
4. Judge's rulings. The judge ruled that the phrase “subject to flooding” was not otherwise limited by the text of the by-law. The judge inferred the phrase could encompass, in its ordinary sense, recent advances in flood science, including the Federal Emergency Management Agency's (FEMA) standards, which postdate the 1972 map and the by-law. The judge ruled that the board was not precluded from relying on FEMA flood zones in denying the permits.
5. Review standard. Review of a local board's denial of a special permit involves a combination of de novo and deferential inquiries. Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirely, 461 Mass. 469, 474 (2012). Initially, the court “determines the content and meaning of statutes and by-laws and ... decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or deny the ... special permit application.” Ibid., quoting from Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass.App.Ct. 68, 73–74 (2003). That is our task. We conclude the board erred in relying on FEMA flood mapping, a standard not permitted by the by-law; thus, the board's denial was based on a legally untenable ground.
If “any reason on which the board can fairly be said to have relied has a basis in the trial judge's findings and is within the standards of the zoning by-law and the Zoning Enabling Act, the board's action must be sustained regardless of other reasons which the board may have advanced.” Davis v. Zoning Bd. of Chatham, 52 Mass.App.Ct. at 356, quoting from S. Volpe & Co. v. Board of Appeals of Wareham, 4 Mass.App.Ct. 357, 360 (1976).
If a board has applied proper standards under the by-law, the court determines whether the board's exercise of discretion was “based on a legally untenable ground,” or was otherwise “unreasonable, whimsical, capricious or arbitrary.” MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970).
Discussion. A few legal conclusions clearly emerge upon review. As pertinent to the lots in question, the by-law is unambiguous, as are the boundaries of the FPWP district as shown on the 1972 map. We are obliged to construe the by-law as written, and not undertake to enlarge or broaden the plain meaning of its text for reasons of expediency. “We derive the words' usual and accepted meanings from sources presumably known to” the town meeting. Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977). It is obvious the judge (and, implicitly, the board) endeavored to add a gloss to the by-law text, by enlarging the meaning of “subject to flooding” in § 470.9 and, thus, validate the use of extrinsic criteria—the FEMA flood map—in denying the special permits.
“[T]hat a local zoning law could accomplish its purpose if it were drafted in terms other than those chosen will not suffice to establish that the [town meeting's] choice of regulation is unreasonable.” Trustees of Tufts College v. Medford, 415 Mass. 753, 760 (1993).
The 1972 map makes no reference to FEMA flood zones, which were developed some years after the town meeting had amended the by-law to establish the FPWP district. The 1972 map “graphically represents” the areas of town that could flood in a “large storm” (or 100–year flood). A principal draftsman of the 1972 map so testified at the trial. The 1972 map shows both First Cliff and Second Cliff encircled by the FPWP district boundary line with the “10 FOOT CONTOUR” label. The ten-foot contour marks the base flood elevation for the land between First Cliff and Second Cliff, that is, the elevation for which a flood in a 100–year storm is predicted to rise in the area. We need not mine the intricacies of flood science and mapping to know that the FPWP district boundary identifies (and by extension, defines) the land that is “subject to flooding” from land that is not. When the by-law was amended in 1972, “subject to flooding” had acquired a particular and appropriate meaning. We are obliged to give the phrase that plain meaning. See Levin v. Wall, 290 Mass. 423, 425 (1935). “A new meaning cannot be given to the words of an old statute in consequence of the changed conditions of a time later than the enactment of that statute.” Dunn v. Commissioner of Civil Serv., 281 Mass. 376, 382 (1933). This is not the occasion where the meaning of the by-law text can be resolved by a jerry-built improvisation handed down by the board.
The anecdotal accounts offered to the board by town residents do not compel a different result.
We do not share the view, which the board has advanced and which the trial judge accepted, that “subject to flooding” is so malleable a phrase that it necessarily encompasses the latest in flood science. Such a scenario invites a local permit-granting authority to employ ever-changing and selective criteria and standards, the application of which is shaped as of the moment.
We are guided here by Turnpike Realty Co. v. Dedham, 362 Mass. 221, where the Supreme Judicial Court construed a nearly identical special permit provision in the Dedham flood plain by-law. The court determined that Dedham's special permit provision was intended to prevent injustice “resulting from the establishment of zoning districts based on ‘the physical characteristics of substantial areas.’ “ Id. at 231, quoting from Leahy v. Inspector of Bldgs. of New Bedford, 308 Mass. 128, 132 (1941). The court stated: “An example of the type of situation where a landowner might resort to the [special permit] procedure under [the by-law] would be the two ‘knolls' on the petitioner's land which rise above the general level of the swamp[,]” the latter of which was subject to the local flood zone regulations. Ibid. That is precisely the situation here, where it has been shown by competent proof that the lots rise above the ten-foot contour, the FPWP district boundary. Turnpike Realty in effect supports the legal conclusion that the plain meaning of “subject to flooding” used in § 470.9 is found in the 1972 map.
A landowner is bound by a local zoning map unless, in the rare circumstance, he or she can establish that a materially different boundary was intended by the town. See Jenkins v. Pepperell, 18 Mass.App.Ct. 265, 269 (1984); Bruni v. Planning Bd. of Ipswich, 73 Mass.App.Ct. 663, 668 (2009). The board is so bound as well. No material imprecision or ambiguity mars the 1972 map. The by-law, for better or worse, requires that the determination of whether a lot is subject to flooding be based on elevation. It is a different question altogether whether the 1972 map is outdated, given more recent flood science, as the board suggests. We are not prepared nor authorized to rewrite the zoning by-law. Nor can the board do so. Such a legislative task is reserved here for the town meeting. See Nelson v. Belmont, 274 Mass. 35, 42–43 (1931). The board misapplied the by-law and wrongfully denied the permits. It necessarily follows that “the issuance of a permit is a matter of duty, not discretion, and relief in the form of an order that a permit issue is appropriate.” Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. at 297. The judgment below is reversed, and the case remanded for the entry of a new judgment in favor of Maryann Doherty with a formal directive to the board to grant her the special permits that Doherty had originally applied for under the by-law.
So ordered.
-------- Notes: