Turnpike Realty Co. v. Town of Dedham

Realty Turnpike v. Dedham. Co.

portunity as to ... confer with commissioner language, proposed By sec- assessment.” its this § presumes original tion that an assessment requires assess- has been made and that an additional ment be made for the “additional tax” determined (3d ed.) Nichols, be due. Taxation Massachusetts See (2d ed.) § Bailey, 627, Barrett and Taxation 882. disputed original excise from case, resulted an designed from one an assessment not collect tax.” “additional

Finally, making original we observe assess- give did ment, the Commissioner the notice Chatham required in those where “in cases the assessment was excess of the amount shown on return excise as the § due.” L. c. 48. G. No further re- action was quired taxpayer the Commissioner. The here does not it did contend not receive if and, this notice even validity had not, tax would not been have § thereby. affected G. L. c. Appellate

3. The decision of the Tax Board is affirmed.

So ordered. Turnpike Realty Inc. vs. Company, Town

Dedham. 6, 1972. April 26, 1972. Norfolk. June Tauro, C.J., Spiegel, Braucher, Hennessey, Present: & JJ. Zoning, plain zoning, Wetlands, permit, Special Validity. Con- Law, Zoning, process law, domain, stitutional Due Eminent power. Domain, taking. Police Eminent What constitutes In a itself. not for the creation of the district were denying established ing’ validity proceeding challenging hinge upon ^[226] of a enabling a flood petitioner’s request zoning by-law establishing the motives of its plain district, statute [G. L. c. the trial rulings supporters, clearly aof a flood that “[t]he set forth in the 2] zoning by-law means where the was correct word district reasons ‘flood- did 362 Mass. 221 Co. v. Dedham. enabling natural “[t]he causes” statute does authorize inclusion in a Flood Plain which are not sub- lands district

ject flooding periodic or [226-227] to causes.” seasonal natural by-law plain zoning preserve purposes A flood “to whose stated were ground table; protect public and maintain the the health water to safety, persons property against and the of flood and hazards inundation; community protection against water for the may development the costs which incurred unsuitable be when swamps, courses, marshes, along sub- occurs in or in areas water ject floods; conditions, life, and and to conserve natural wild open spaces education, general for the of recreation and welfare public, validly grant general the ity was of author- enacted the 40A, 40A, [227-229]; in G. L. c. sentence of G. L. c. the last §§ any way municipality not in a § does limit the of by-law fully plain zoning by-law [227-228]; enact a flood the was since supported valid of in the first considerations welfare conserving fourth, aesthetic, purposes, purpose three stated of the bring conditions, life, open spaces” it “natural and did not wild [229], enabling into conflict with the act Where, by-law, plain zoning provisions limited in a flood one of three special plain the of land in uses the flood district and authorized uses,” permits buildings “accessory a for Flood Plain provision specific second the board considerations for contained appeals entertaining applications of acces- in construction of for sory buildings, provision special permits for and a third authorized subject flooding be- broad uses land or not unsuitable of “not drainage conditions,” provisions cause of independent established two three special permit procedures conflict were not in which provi- [229-231]; phrase “Except provided a a above” in fourth sion, build, denying right fill, permanently materials or store types special permits equipment, out or set to the two referred provisions [231]. the other three provided plain zoning by-law a the board Where flood that before appeals granted special permit a for of certain uses plain district, proved “to the the flood it must be satisfaction subject or the” board that the land was not use, particular drainage unsuitable because of conditions general purposes and that such use would not interfere with plain to the not be detrimental the flood district and would by-law welfare,” “public health, provision of the such 21, together judicial right and L. c. review under G. [231-232]; provided adequate guidance for the of the board standards might possibility special permit granted a to a that landowner by-law render be and annulled did not contested court [232], invalid judgment appeared for a that there a reasonable basis Where it was periodic subject meeting to seasonal or a that land was town a plain zoning placed flooding, land in a flood buildings plain be erected flood no could district within which “woodland, grassland, premises except wet- no could used horticultural, land, land or agricultural, recreational use requiring filling” except uses for certain other water not constitutional, special appeals, even permits from the was board Turnpike Realty v. Co. Dedham.

though there awas “substantial diminution” in the value of the C.J., concurring. land. [233-237] TAURO, In a law, tioner’s land were included in subject proceeding there was no error by-law. challenging ^[237] in a validity ruling flood of a plain two flood knolls on the district and plain zoning were peti- by- proceeding challenging In a applied land, ruling to certain there no error in respondent reasonably town ... im- “acted when pliedly [land] ‘deemed’ the . . . to ‘seasonal’ or to he ‘periodic’ flooding,” express findings by meeting no the town required. [237-238] filed Land Court on October Petition The case was heard Silverio, J. petitioner.

Antonino F. Iovino for the (Acheson Callaghan, Herbert P. Wilkins H. respondent. Jr. & him) Jeffrey Swope with for the joined John A. Perkins, Town in Counsel, a brief. petitioner, J. The the owner of 61.9 acres Spiegel, brought petition in Dedham, in the Land provisions § (j%), Court under the L. G. c. and c. 14A, to inter determine, alla, the zoning applied an amendment to a petitioner. judge land of the The in his decision ruled that the “was a valid exercise of the powers upon respondent and conferred . . . . . [G. c.] L. 40A and is full force and effect as to the petitioner’s petitioner’s land.” The case is here on the exceptions judge’s findings to several of and to his petitioner’s requests denial of a number of for rul- ings. petitioner acquired question

The the land in in 1947. up uplands It is made and lowlands and includes two knolls, one of 3.2 acres and the other of .2 acres, which rise above the elevation of the lowland. The land is bounded Route 1, the Boston-Dedham bound- ary line, the Charles River, and the Mother Brook. At meeting respondent annual town in 1963 the “zoning by-laws [zjoning [m]op by amended its and adopting zoning by-law establishing a “Flood Plain

Turnpike Realty v. Co. Dedham. included land of District,” petitioner, “the portion for a minor thereof.” Prior except entire involved this case was amendment area found general residence district. knolls included in district. is “a low area” swampy land of the remaining on the Charles River. bordering portions by-law, paragraph Pertinent clarity reference, numbers us for are added District purpose follows: of the Plain “[1] table; preserve ground is to and maintain the water safety, persons prop- health and and protect inundation; the hazards of flood water erty against community against of the the costs which protection when occurs may be incurred unsuitable development marshes, water in areas swamps, courses, or along floods; conditions, and to conserve natural life, for the recreation open spaces education, wild general welfare public. ^[2] Within a Flood erected, District no structure or building Plain shall be premises altered and no shall used used, except or more Any woodland, grass- one uses: following horticultural, land, wetland, agricultural, recreational filling. of land or water not Buildings use requiring Plain accessory any per- sheds to the Flood uses are on Board of mitted Notice approval Appeals. of each such Flood Plain building permit application be the Town Public Works given Department, shall Board, the Town Town Health, Planning Board to the as all and to Town Conservation Commission as well other parties required. ^[3] Board Appeals, in hear- any consider, such shall addition to ing application, following pertinent, other factors said Board deems Flood District with Plain aspects respect flooding such zoning provisions: any or structure building be offer a designed, placed, shall and constructed minimum obstruction to the water; flow and that shall be firmly anchored to prevent floating away. ^[4] to the proven If in the Plain district any 362 Mass. 221 v. Co. Dedham. question Appeals after the the Board of

satisfaction of Planning the Board of Board, referred to has been reported on Selectmen, the Board of Health, and thirty days by lapse from the three or the all boards report, being not in fact as of referral without date subject drainage because of or unsuitable any per- be use which would otherwise conditions for operation not, if land were this mitted such Plain use of section, district, the Flood and that the any such land for such use will not interfere with the general purposes for which Flood Plain districts have established, been and will not be detrimental Appeals public or health, welfare, the Board of public may, hearing per- after a with due issue a notice, mit any such use. ^[5] Except as provided above, shall the Flood Plain fill there District: No land any dumping part drainage or of the District. No than Flood Control other agency. works an authorized damming or No relocation of water course except part drainage plan. of an over-all basin No building permanent storage or structure. No of ma- terials equipment. ^[6] Flood Plain District adoption provision, after the building, this no land, occupancy or structure shall be used for sustained human except dwellings lawfully existing, theretofore or land, buildings comply provisions structures which by-law.” of attacks the of on grounds. Many arguments overlap.

several of its We presented treat its central contentions as it has them in its brief. argument throughout A recurrent prime purpose

brief is that was to [its] “retain . . . land in its natural state appears rely flood water detention basin.” It to a considerable extent various statements made mem- bers the sug- Dedham conservation commission which gest primary that urging adop- their interest the by-law tion the was for the above reasons. This Mass. 221 362 v.Co. Dedham. by-law reg- argues, the was “not demonstrates, that confiscatory.” ulatory, but upon hinge does not

The this Building supporters. of its See Caires motives Hingham, The reasons Commr. 596. clearly plain district are for the creation is no need in the itself. There set forth purpose” by-law. “prime speculate about purposes are within the the stated Whether granted by Zoning Enabling G. L. c. is Act, question a opinion. which we will consider the course this position petitioner The lands which takes subject flooding from causes cannot are not “natural” district, or should not included a flood judge’s rulings denying petitioner’s requests that the point were erroneous.1 It that its land admits on occasions because was “covered water” charges from River the Charles but this is overflow gate2 mismanagement of Mother Brook bascule employee an Trementozzi, one Salvatore Metro- politan District The Commission. seeks to flooding characterize this as “artificial.” gate completed in The Mother Brook bascule part of flood control work on River the Charles flooding. effect of reduce the Trementozzi testified that gate is lowered, water into when diverted Mother it is water remains in Brook; raised, when the Charles he He also testified that made the decision “on River. gate. regular basis” whether to raise or lower On dates when the land was , flooded, certain peti- gate. to lower Trementozzi decided not argues flooding tioner over its land could have requests ‘flooding’ enabling These in the 11. were: “7. word statute enabling . . . means from natural causes. ... stat ute Plain does not authorize the inclusion lands in district periodic flooding which are not causes.” to seasonal or natural Dictionary Third Inti. defines “bascule” Webster’s New follows: apparatus “[A]n or structure in which one end is counterbalanced principle weights.” the other on the of the seesaw 362 221 227

Turnpike Realty Co. v. Dedham. by “proper” operation gate. prevented been of the way suggests in no Trementozzi’s however, that evidence, gate management unreasonable, was “the that being locus was ... an area which was utilized expense petitioner, public Trementozzi, at the for purposes.” findings

Although judge explicit make did not point, peti- fact on it is clear that he considered the opinion tioner’s are of event, contention. we denying that was correct in requests rulings for on this issue. petitioner argues

3. The that “the of the enactment arbitrary, capricious and unreasonable and beyond authority granted went in the last sentence § 40A, of” c. 2, which reads follows: “A . . . by-law may provide lands deemed to sea- periodic flooding sonal or shall not be used for residence purposes endanger or other in such a maner as to safety occupants health or of the thereof.” preamble purposes: sets out its (numbers reference) clarity pre- added for “[1] ground pro- serve and maintain table; [2] water safety, persons property tect the against health and and

the hazards flood water inundation; ^[3] protection community against the may the costs which development

be incurred when unsuitable occurs in swamps, along marshes, courses, water in areas sub- ject floods; [4] and conditions, to conserve natural spaces open wild and life, for the education, recreation general public.” welfare of the We first state our view sentence of G. L. last § any way authority c. 40A, does not limit municipality plain zoning by-law. to enact a flood part Even before the en- last sentence became abling municipality validly act,3 we that a believe could plain zoning by-law have enacted a flood (to § general grant pro- in G. L. c. part general was added St. c. oí a sentence § Zoning Enabling revision of the Act. 362 Mass. 221 v.Co. Dedham. morals or “health, convenience, wel

mote fare”), L. c. 40A, the reasons set forth G. (“to safety panic other fire, secure dan gers”). Flood Control Via the Police Dunham, See Although of 1098, 107 U. Pa. L. Rev. 1118-1121. Power, argued might be that such to enact flood it implied plain zoning the could not be before insertion § 2, of last L. c. and that 40A, the sentence of G. we objective plain regard such flood must therefore zoning the of protection “occupants” of as limited to the of flooding, “just on land think residences we regard logical [the . . of G. L. last sentence ambiguity 2] of as a clarification an and a c. interpretation legislative original of the act.” See Fitz Labor Auto Inc. v. Commissioner Parks, Inn & of gov Indus. 350 Mass. 42. 39, We believe that the test plain validity zoning by-law erning the of a flood or governing any zoning is ordinance the same as that other by-law or “The test there ordinance. is whether has relation been shown substantial between the amend general objects ment and the of of furtherance enabling Building v. of the act. Caires Commr. of Hingham, v. 589, 323 593. Lamarre Commis Mass. Pub. sioner Works Fall 324 River, Mass. 545. of of promotion public of term welfare, as that is broadly purposes fairly, among is construed, chief enabling Appeal Lanner of v. Board statute.” Tewksbury, 228. specifically, public objectives policy More basic three (1) restricting plains use of flood have been advanced: protection despite might choose, who individuals dangers, develop occupy flood on a the plain; land flood (2) protection of other landowners dam- resulting ages development from the a flood (3) pro- consequent flow; obstruction community tection of the entire from individual choices subsequent public expenditures require use which Dunham, works relief. and disaster See 229 Mass. v. Co. Dedham. of Pa. L. Rev. Power, Via the Police U. Control 1110-1117. purposes are con- first three stated objectives.4 purpose

sistent with these The fourth would “[ajesthetic category fall into the considerations.” Barney Carey & Milton, Co. Barney Carey we “Aesthetic considera- case, & said: may disregarded determining

tions zoning by-law, they justify of a restric- but do not alone upon private property merely purpose tions preserving for the beauty neighborhood of a Fur- town.” “Regard preservation thermore, said: we for the beauty neighborhood natural of a makes enactment regulation give of a desirable but does not itself vitality regulation.” fully sup- Since the ported by public other welfare, valid considerations of purpose conserving the additional of conditions, “natural open spaces” bring wild life, and it does not into conflict enabling with the act. petitioner portions asserts that several other unduly are unreasonable and burdensome. We agree. Paragraph

do not 2 limits the uses of land in a district: “Within a Plain District no building structure or shall be erected, altered used, premises except and no shall be used one for or more of Any following grassland, uses: woodland, wetland, agricultural, horticultural, or recreational use of land or requiring filling. Buildings water not and sheds acces- sory any permitted ap- to Flood Plain uses are on proval Appeals.” Paragraph Board of 3 contains specific appeals considerations for the board of in en- tertaining applications “accessory” for construction buildings: any building i.e., “that such or structure shall designed, placed, be and constructed to offer a minimum obstruction of water; flow that shall and it 4 appears purpose, preserving maintaining It and first ground table, depletion preventing water is related to of the water supply.

Turnpike Realty v.Co. Dedham. floating firmly prevent away.” Paragraph 4 anchored to separate exception contains a and broader much than “accessory” any building exception paragraph 2: “If proven land in the Flood Plain is to the satisfac- district Appeals question been tion of the Board of after the has Planning Board, Health, referred to the the Board of reported Selectmen, three Board all lapse thirty days re- boards or the from the date of report, being subject ferral without a fact not drainage flooding or not unsuitable because conditions any permitted for use which would if such otherwise be by operation not, section, of this in the Flood district, Plain and that use of such land for such general purposes use not interfere will with Flood Plain have been established, districts public health, will not be detrimental may, Appeals hear- the Board of after a welfare, ing permit notice, due issue a such use.” paragraphs three are asserts that these conflicting. appeals It would contends that the board permit grant a for an be without “acces- 2) sory” building (paragraph proven, “for must be paragraph its ‘satisfaction’ that the land flooding; any provision and, therefore, building provide a minimum obstruction to the flow (as prevent floating away or be its water anchored Similarly, paragraphs) paragraph is in 4.” conflict with grant permit para- it the board could not a under claims, permitted graph 4 for “use which would otherwise be if if were not ... in the Plain district” such land requirements paragraph 3, the such use does meet of not contrary permitted paragraph uses in or is the correctly through paragraphs 2 4 reconciled procedure special permit distinguishing between special per- applicable “accessory” buildings, and the relating subject procedure “not mit drainage The two of conditions.” not unsuitable because independent. concerning procedures are Restrictions only anchoring related make sense when flow and water 231 Mass. Turnpike Realty v.Co. Dedham. “accessory” buildings. Paragraph contrast, prevent injustice resulting from the estab-

intended to physical char- lishment of districts on “the based Leahy Inspector of substantial areas.” acteristics of Bldgs, New 132. An exam- Bedford, of might ple type of the situation where a landowner of procedure paragraph 4 would be the resort to two “knolls” on rise above land which general swamp. level of petitioner aspects 4. The contends that several argues vague ambiguous. are It phrase “Except provided paragraph above” in (which, right per- fill, inter denies alla, build, manently equipment) store materials or could refer to previous paragraphs. clearly four thinkWe it types permits special para- refers to the two set out in graphs and 4. For if instance, were granted special permit “accessory” to build an build- ing, paragraph prevent filling 5 would not its purpose. land for this petitioner particularly objects phrase to the “to Appeals” paragraph

the satisfaction of the Board argues 4. It that there is no standard to measure “satis- “caprice faction” and thus an owner is to the recently whim men.” As we have stated the case Appeals Duxbury, of MacGibbon v. Board delegation 635, 637-638: “The to the board appeals applications permits special to act on exceptions zoning by-law cannot leave the decision subject to the ‘untrammeled discretion’ or ‘unbridled fiat’ Zoning Enabling of . . The board. Act and the by-law together provide adequate must standards for guidance deciding grant board whether to or to special permits withhold .... standards need they entirely be of such detailed nature that eliminate element discretion from the board’s decision.” In the MacGibbon case, we concluded that sufficient standards appeals for the board of contained G. L. c. (d) § § Duxbury by-law, provided 4, and of the which Mass. 221 Co. Dedham. Appeals may, appropriate “[t]he that: Board of in cases subject appropriate safeguards, and to conditions and exceptions special make of the to the terms harmony general purpose their and and in intent, with specified accordance with the rules contained in this by-law.” applied In the to case, instant standards be precise. are at find board least board must subject flooding is not to that the land or unsuitable drainage particular because use; conditions a general purposes that such use will not interfere with not be detrimental to district, will “public health, or Moreover, welfare.” subject judicial decision of the board is review under § may case, L. the MacGibbon 40A, and, G. c. ground, legally if it is on a be reversed “based untenable capricious arbitrary.” or unreasonable, or is whimsical, P. 639. special petitioner

5. The further maintains permit permit procedure is valueless because no under permitted by underlying paragraph 4 for use general validly granted residence zone could be because harmony general purpose be “in it would not § by-law.” If of the . . . L. c. 40A, intent G. permit granted, states, such it would “subject L.] [G. taken to annulment action under be by persons aggrieved mandamus c. proceedings.” special permit granted possibility a a land- be contested court and annulled does not

owner would Moreover, render invalid. order paragraph special permit granted be subject proven would first have be “not drainage If not unsuitable because conditions.” special permit granted since case, were the could purpose general be in conflict with would not people by-law, protect is to several classes flooding. overdevelopment of land next discuss the contention that 6. We 233 362 Mass. 221 v.Co. Dedham. particular by-law, applied both on its face and as to its is unconstitutional. land, previously purposes of have reviewed the

We by-law they comply and have determined that with the authority granted by enabling statute, L. c. 40A. G. To hold the we would have unconstitutional, “clearly arbitrary hold that its terms are and unreason- having public health, no able, substantial relation to Euclid, general v. morals, or Ambler welfare.” Realty Co. U. Newton, 272 S. 395. Wilbur 302 “Every presumption and cases cited. is by-law] [a afforded in favor of ... fairly judg- and if its reasonableness is debatable gave being of the ment local authorities who it its will prevail.” Schertzer v. Somerville, 747, 751, 345 Mass. “heavy and cases cited. The must sustain showing burden” of that the is in conflict (a) (b) enabling applicable G. L. c. or act, provisions. Wellesley, constitutional Pierce v. 336 Mass. 517, 521. general necessity plain zoning of flood to reduce damage property to life and caused is

unquestionable. See Dunham, Flood Control Via the Police 107 Power, U. Pa. L. 1098; Note, Rev. Flood Zoning Plain for Flood Loss Control, L. Rev. Iowa Zoning, 552; Comment, State Flood-Plain 12 De Paul Zoning L. Rev. 246; Comment, the Flood Plains L. Ohio, U. Toledo Rev. 655. also See Task-Force Policy, on Federal Flood Control A Unified National Program Managing 1966 H. R. Doc. Losses, Cong., principal No. 89th 2d Sess., criterion petition- as to reasonableness the inclusion of the er’s land in the flood district extent of judge’s flood hazard to its land. The decision on this point following: contains “There extensive evi- topography, on elevation, dence dams, flood control, gates bearing all on the issue whether not the ‘periodic’ flooding; locus was ‘seasonal’ this"

Turnpike Realty Co. -v.Dedham. photographs, reflecting included the elevation exhibits the locus in River relation to the Charles ... well concerning River evidence level Charles from 1954 .... to 1967 evidence indicated judgment there was a reasonable basis for the meeting town the land be included in ‘Flood that subject peri- Plain in is, fact, District’ to seasonal flooding odic and that the determination the Town Meeting not that the locus was was capricious. A unreasonable or view the locus further testimony supported and disclosed that most marshgrass the locus consisted of lowlands covered with ‘high’ growth. only apparent and scrub areas on ground acre and within the locus consisted the 3.2 .2 acre knolls.” clearly supported judge’s conclu-

The evidence expert hydrologist, One A. an Barrows, sion. Robert respondent opinion, in his that, testified for the petitioner’s any- ranging it, land “will have water practically nothing up feet from . . three where annually.” once of water He further testified that 1,280 exceeds cubic feet the flow the Charles River equivalent approximate second, is ele- (92.5 feet), petition- petitioner’s land vation flooded. River, er’s land will be The flow of Charles according Barrows, that level in exceeded personally 1938, 1955 and Barrows stated he 19.68. and ob- March, 1968, went to the “approximately four served that it was covered with to five feet of water.” stated,

As we the restrictions have protect only might to de- serve to velop those who choose dangers occupy spite land in to them- (see property Cleary, Pinnick v. selves and their cited), people but other 1, 24-25, and cases also flooding.5 community from effects of in the the harmful Similarly, public in avoid- is a interest there substantial filled, petitioner’s land this “could Barrows if the testified higher points.” at cause the water to rise other Co. v. Dedham. ing expenditures public relief works disaster flooding. connected v. Water Resources Commn. 146 Conn. Vartelas police power regulates “The the court

650, 654, stated: property use harm- use because uncontrolled would be ful interest. Eminent on the other domain, private property hand, takes because it is useful to the public.” petitioner, deprived has moreover, not been property. by-law spe

all beneficial uses its cifically permits “Any grassland, woodland, wetland, agricultural, horticultural or recreational use of land filling.” Although requiring or water not isit clear that substantially restricted its use of against the land, such restrictions must balanced potential community overdevelopment harm to the plain County Improve of a flood In Morris area. Land Township Parsippany-Troy ment Co. v. Hills, of heavily upon by N. J. fn. a case relied the petitioner, the court stated: “There nois evi substantial intra-municipal dence in this case that the matter of any bearing adoption flood control had on the regulations. meadows zone . . . This case, therefore, police power regulation does not involve the matter of of the use in of land a of the lower reaches by zoning, building a river channel en restrictions, nothing croachment lines or otherwise and said in this opinion pass upon is intended to the of such regulations.” testimony expert

7. The of introduced an prior witness the enactment of the the petitioner’s apartment of best use the was buildings, and after the enactment the best use was for agriculture. He further testified of that the value prior becoming subject $431,000 was lowlands to the by-law, by-law’s $53,000 after a enactment, eighty-eight per of reduction petitioner argues value about cent. mag- reduction was of such nitude that the enactment of the must be con- 362 Mass. 221 Realty Co. v. Dedham. taking equivalent just of a com- sidered the without pensation. referring testimony judge of after expert

petitioner’s “[t]he out as set above stated that respondent’s low- witness testified that the value of the lands was not affected the Flood Plain District as nature of the terrain con- was such as make the housing struction of on the locus Res- under the General economically idence Zone not feasible.” transcript contrary there shows was evidence figures expert. Although petitioner’s stated in his made testi- decision references mony respondent’s wit- both the and the regarding the after nesses value the land before and by-law, the enactment he did not set value “Although He thereon. stated: there was a substantial locus, mere diminution value decrease particular piece value a of land is not conclusive evi- deprivation property.” dence an unconstitutional regula “There is no set formula to determine where taking begins. Although comparison ends tion values before and ... after relevant it is no Hadacheck [239 means see v. Sebastian . . conclusive, $800,000 U. S. where diminution value 394], upheld.” Hempstead, $60,000 v. 369 U. S. Goldblatt Euclid v. Ambler Co. 590, 594. See 272 U. S. Building Hingham, also Commr. See Caires 594; Massachusetts Broken Stone Co. v. Wes Wilmington, Anderson v. ton, 657, 661; 346 Mass. Zoning Dooley v. Town Plan & Mass. 304. But see 310. Commn. 151 Conn. Fairfield, extremely it to deter- realize that is often difficult We regulation precise ends confisca- mine the line where and begins. depends upon “peculiar cir- The tion result particular v. cumstances instance.” Pittsfield we are Oleksak, 313 Mass. 555. In the case at bar though judge found that conclude, unable even was diminution in value there a substantial render such as to the decrease was land, that v. Dedham. Co. property. deprivation its an it unconstitutional ruling petitioner argues finding 8. and in- 3.2 acre acre knolls were subject that the and .2 plain in the cluded flood district contrary on However, evidence. the evidence

was point conflicting. engineer, was The town at the request a commission, the town conservation made zoning map plain He was related to flood districts. put swamp district “all the instructed the flood ninety-eight designate areas” below feet, and to them coloring green. them were elevations the knolls 121 feet and 111 feet. Both were colored the flood despite plain ninety-eight district elevations excess of They map feet. were shown colored at the meeting adopted by-law. town town clerk map Attorney testified that the he submitted to the Gen- copy eral was a “true of the Flood Plain District as cre- Meeting.” ated vote the Town finding ruling that the knolls included in plain judge appeared the flood district, to reason that although “may their inclusion been have inadvertent,” petitioner “would not been have able to utilize these purposes underlying areas for the authorized under the (General Residence) obtaining special zone without a permit Appeals from the Board of for access to it over surrounding plain flood zone.” district We think a this was sensible conclusion. See Parmenter Board Appeals pre- As Grafton, we have viously special permit stated, this is a situation which the procedure paragraph 4 was intended cover. argues

9. The that under G. L. c. respondent required de- to make “reasonable termination” that be included in a periodic flooding. district inis fact to seasonal or summary, plain contends, It that flood departure ordinary zoning concepts, radical Legislature that the intended that a narrower standard be used. previously We have stated our view that the 362 221 Mass.

Turnpike Realty Co. v. Dedham. by-laws plain zoning to enact flood general grant is contained in the power public health, to zone for the welfare, and is limited sen last nothing tence of G. L. c. 2. There is to indicate “ apply: ‘[a]ll that our familiar rule should not rational presumptions every are made in favor of the legislative enactment. Enforcement is to refused only legislative power.’ when is in manifest excess Finnigan, 378, Commonwealth v. 326 Mass. Mas 379. Against Colangelo, sachusetts Commn. Discrimination v. Inc. v. Mass. 390. Commissioner 387, Coffee-Rich, Corp. v. Pub. Mobil Health, Mass. 422.” Oil Attorney 412-413. The same true Gen. 361 Mass. zoning by-law. Building Hing- Caires Commr. of Appeal Board 594. Lanner v. ham, Tewksbury, wrong nothing 228. find We respondent judge’s ruling rea with the that the “acted sonably [e]nabling in the it im when, [a]ct, words pliedly ‘deemed’ the locus to be to ‘seasonal’ ‘periodic’ express flooding.” findings the town No meeting required. All of have been con- contentions There was no error.

sidered.

Exceptions overruled. (concurring). has raised below C.J. Tauro, question diminution” value with- of “substantial indicating ma- out of the diminution. the extent jority opinion position that the court is unable takes the in value diminution” to conclude that “substantial such as to render caused my ma- statement view, this unconstitutional. justifica- (possibly jority opinion might be used without tion) of future administrative denial reason building permits. petitions special reason, For this opinion: following I statement add the would [petitioner now decide the . . “[W]e need not whether taking ‘uncompensated of a invalid is] victim ... Appeals of Co. of Glacier Sand & Stone Inc. Board Westwood. Resources Natural Commissioner without compensation.’ of v S. & Co. Inc. 349 Mass. 111. Volpe That 104, . . action may depend part decision the board’s . on the . . . for . . . [possible petitioner’s] application v. Board Appeals MacGibbon special permit.” [a] of of Duxbury, 641. 635, Appeals Co.,

Glacier Sand & Stone Inc. vs. Board of of Westwood. May 4, 1972. 26,

Norfolk. June 1972. Tauro, C.J., Present: Braucher, Hennessey, Reardon, Quirico, JJ. & Property, Zoning, Beal Removal of soil. Removal of soil. There subdivision plan approved by removed materials where it shown thereon. “hereunder” shall not ing “medium-priced” dwellings; town peals and fumes c. thereon. development mental to the approved dential area in the removal more than provision authorizing awas zoning of a that “in ^[242] rational generated by permit plan by of G. L. c. subdivision compliance neighborhood; the locus the removal by-law [241-242] appeared the town basis for the denial vicinity stating 110,000 yards apply prohibiting the earth removal would necessitate removal of planning plan with the its that that the land planning board,” large such tentative or final (17), board the removal requirements sand or “well-cared material locus gravel; should not contemplated process appearing a town’s board gravel for removal planning that the from the situated did not for lots” contain- of a subdivision sand would called for which approval all board noise, residential construed govern a in a resi- St. premises be detri- is to be gravel earth trees of a dust had ap- equity Bill filed Court on Superior July Hale, suit was heard J. P. McLaren Henry plaintiff.

Arnold W. Hunnewell, Jr., Counsel, Town defendant.

Case Details

Case Name: Turnpike Realty Co. v. Town of Dedham

Court Name: Massachusetts Supreme Judicial Court

Date Published: Jun 26, 1972

Citation: 284 N.E.2d 891

Court Abbreviation: Mass.