Posted by: Patricia Salkin | April 15, 2014

MA Supreme Court Holds that in Determining Whether Lots Were “Subject To Flooding,” Board Could Consider Lots’ Overlap with Federal Emergency Management Agency’s (FEMA) Flood Zones and Testimony of Witnesses

The plaintiff in this case, MaryAnn Doherty, owned two adjacent unimproved lots on a barrier beach peninsula in the Town of Scituate and applied for special permits from the town’s planning board to construct new residential dwellings on the lots, located in a flood plain and watershed protection district (FPWP district). The board denied the applications, concluding that Doherty had not demonstrated that lots were “not subject to flooding” within the meaning of § 470.9 of the zoning bylaw. Doherty sought review pursuant to G.L. c. 40A, § 17, and the Land Court judge entered judgment affirming the board’s decision and dismissing Doherty’s complaint. The Appeals Court reversed this decision and concluded that the phrase “subject to flooding” has a specific meaning derived from a map setting forth the FPWP district and based only on elevation from sea level.

The plaintiff argued that the meaning of the phrase, “subject to flooding,” is “apparent” from the bylaw, and employs elevation as solely determinative of flooding. Although the bylaw does expressly incorporate and adopt the map, and although the map uses various contours as some of its boundaries, the court concluded that the map does not define “subject to flooding” as meaning only whether land is above or below a certain elevation. As to this contention, the court determined that the public safety issues relative to “the damage to life and property caused by flooding,” are the actual concerns, not solely focused on elevation. The court therefore found that the purposes of the bylaw do not reflect a restricted concept of flooding based solely on elevation.

The court also reasoned that the board could, in determining whether the lots were “subject to flooding,” consider testimony of witnesses describing their observations of water on the lots as well as the presence of FEMA flood zones. In reaching this decision the court looked at the phrase, “as being in fact,” that precedes the phrase “subject to flooding.” Since the phrase “in fact” means “in truth: actually, really,” “an actual happening in time or space.” The court held that “in fact not subject to flooding” status permits consideration of evidence of the actual occurrences of flooding on the lots. Thus the court concluded that the Appeals Court adopted an incorrect definition of the phrase “subject to flooding,” and therefore affirmed the judgment entered by the Land Court against the Plaintiff.

Doherty v. Plan. Bd. of Scituate, 467 Mass. 560, 573 (2014)

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