Posts tagged "1005314"

Doherty v. Planning Board of Scituate (Lawyers Weekly No. 10-053-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030;     SJC‑11401   MARYANN DOHERTY  vs.  PLANNING BOARD OF SCITUATE.     Suffolk.     December 3, 2013.  ‑  March 21, 2014. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.     Zoning, Flood plain, Littoral property, By‑law.  Planning Board.  Municipal Corporations, Planning board, By‑laws and ordinances.  Words, “Subject to flooding.”       Civil action commenced in the Land Court Department on August 5, 2008.   The case was heard by Harry M. Grossman, J.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Brandon H. Moss for the defendant. Leonard M. Singer (Michael D. Bliss with him) for the plaintiff.     IRELAND, C.J.  The plaintiff, MaryAnn Doherty, owner of two adjacent unimproved lots on a barrier beach peninsula in the town of Scituate (town),[1] applied for special permits from the town’s planning board (board) to construct new residential dwellings on the lots, which are located in a flood plain and watershed protection district (FPWP district).  The board denied the applications, concluding that Doherty had not demonstrated that her 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, where after a bench trial, a Land Court judge entered a judgment affirming the board’s decision and dismissing Doherty’s complaint.  In an unpublished order and memorandum pursuant to its rule 1:28, the Appeals Court reversed, concluding that the phrase “subject to flooding” has a specific meaning derived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.  We granted the board’s application for further appellate review.  Because we conclude that the Appeals Court adopted an incorrect definition of the phrase “subject to flooding,” and we agree with the meaning adopted by the Land Court judge, we affirm the judgment entered by him.   1.  Background.  The judge found the following facts, which we occasionally supplement with undisputed facts in the record.  See Wendy’s Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 383 (2009) (Wendy’s) (on appellate review, judge’s factual findings will not be set aside unless clearly erroneous or where there is no evidence to support them).  The unimproved lots in question are located at 114 and 118 Edward Foster Road, in the […]


Posted by Massachusetts Legal Resources - March 21, 2014 at 9:02 pm

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