Agenda - Planning Commission - 08/07/2014

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May 10, 2014 I Volume 8 I Issue 9 Zoning Bulletin DECISION: Judgment of appeals court reversed; judgment of land court affirmed. The Supreme Judicial Court of Massachusetts held that in deteiniining whether Doherty's lots were "subject to flooding" under the bylaw, the Board could consider the lots' overlap with FEMA flood zones and the testimony of witnesses; the Board was not restricted to only considering the 1972 FPWP Map. In so holding, the court noted that, as an initial matter: "A municipality may validly use its zoning power to restrict development in areas that are prone to flooding." The court said that there were three basic public objec- tives allowing for the restriction of use of flood plains: "(1) the protection of individuals who might choose, despite the flood dangers, to develop or occupy land on a flood plain; (2) the protection of other landowners from damages resulting from the development of a flood plain and the conse- quent obstruction of the flood flow; [and] (3) the protection of the entire corrununity from individual choices of land use which require subsequent public expenditures for public works and disaster relief." The court noted that the purposes of the FPWP district bylaw included: "protect[ing] the health and safety of persons against those hazards which may result from unsuitable development in . . . areas subject to flooding"; "conserv[ing] the values of lands and buildings in such flood -prone areas"; and "encourag[ing] the most appropriate and suitable use of the land." The court concluded that those purposes were consistent with the three public policy objectives. The court then noted that the phrase "subject to flooding" was not defined in the zoning bylaw. Doherty had argued, and the appeals court had agreed, that the meaning of the phrase, "subject to flooding," was "apparent" from the bylaw, which adopted the 1972 FPWP Map, which in turn employed elevation as solely determinative of flooding. However, the court rejected that argument and found that, although the bylaw did expressly incorporate and adopt the map, and although the map used vari- ous contours as some of its boundaries, the map didnot define "subject to flooding" as meaning only whether land is above or below a certain elevation. Significantly, the court found that to limit the phrase, "subject to flooding," to the map boundaries (whatever elevation or designation they were) would render § 470.9 of the bylaw "impermissibly superfluous." That was because if the boundary designation were the sole criteria in determining whether land was "subject to flooding," then no special permit procedure would be needed to show that land on a particu- lar lot was "in fact not subject to flooding," as required by the bylaw. Since "subject to flooding" was not defined in the zoning bylaw, the court looked to the plain and ordinary meaning of the term "flood" as used in the phrase "subject to flooding." The court concluded that the broad meaning of the phrase, "subject to flooding," encompassed "all va- rieties of water rising and overflowing on normally dry land . . .." Further, the court concluded that, in determining whether the lots were 4 © 2014 Thomson Reuters