Agenda - Planning Commission - 08/07/2014

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Zoning Bulletin May 10, 2014 I Volume 8 I Issue 9 "subject to flooding" Citation: Doherty v. Planning Bd. of Scituate, 467 Mass. 560, 2014 WL 1060309 (2014) MASSACHUSETTS (03/21/14)—This case addressed the issue of what information could be considered in determining whether lots were "subject to flooding" and thus required a special permit for development under the town bylaws. The Background/Facts: MaryAnn Doherty ("Doherty") owned two adjacent unimproved lots on a barrier beach peninsula in the town of Scituate (the "Town"). Doherty sought to construct new residential dwell- ings on the lots. The local building inspector determined that the lots were located in a flood plain and watershed protection ("FPWP") district, as depicted on a map entitled "Town of Scituate, Massachusetts, Flood Plain and Watershed Protection District, 1972" (the "1972 FPWP Map"). Under the Town's zoning bylaw, the construction of a new residential dwelling on land located in the FPWP district was prohibited unless a special permit was obtained. To obtain a special permit, § 470.9 of the zoning bylaw required an applicant to demonstrate that the land on which the construction was proposed was "in fact not subject to flooding." At the hearings on Doherty's applications, neighborhood residents testified that Doherty's property flooded during various storms. Ultimately, the Board denied Doherty's special permit applications. The Board concluded that Doherty had not demonstrated that her lots were "not subject to flooding" within the meaning of § 470.9 of the zon- ing bylaw. Doherty appealed. A Land Court judge considered the neighborhood residents' testimony and also determined that Doherty's lots were in the Federal Emergency Management Agency's ("FEMA") flood zones. Doherty had argued that "subject to flooding" under the zoning bylaws should not consider those types of evidence, but only should rely on the 1972 FPWP Map, which depicted elevation and surge flooding. The judge rejected that argument and determined that the Board could "import the latest science and technology of flooding[ ] into its construction of the [b]ylaw" and "was not precluded from relying upon the witness testimony that it did, or the presence of FEMA [f]lood [z]ones, to establish that the . . . lots [were] subject to flooding." The judge went on to deteiiuine that the lots were indeed "subject to flooding" within the meaning of the bylaw. Doherty appealed. The appeals court reversed the land court's judgment. The appeals court concluded that the phrase "subject to flood- ing" had a specific meaning derived from the 1972 FPWP Map, which was based only on elevation from sea level. The Board appealed. © 2014 Thomson Reuters 3