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22-P-803 Appeals Court
JOHN McLAUGHLIN vs. ZONING BOARD OF APPEALS OF DUXBURY.1
No. 22-P-803.
Suffolk. March 1, 2023. - July 6, 2023.
Present: Green, C.J., Blake, & Englander, JJ.
Zoning, Appeal, Board of appeals: decision, By-law, Judicial review, Littoral property, Special permit, Wetlands. Environment, Coastal wetlands. Beach. Department of Environmental Protection. Municipal Corporations, By-laws and ordinances. Practice, Civil, Zoning appeal.
Civil action commenced in the Land Court Department on February 26, 2019.
The case was heard by Kevin T. Smith, J.
Amy E. Kwesell for the defendant. Paul J. Driscoll for the plaintiff. Daniel C. Hill & Dennis A. Murphy, for Friends of the Bluefish River, amicus curiae, submitted a brief.
1 The town of Duxbury was named as a defendant in the complaint, but was dismissed without prejudice. 2
BLAKE, J. Having concluded that a proposed residential
pier would not extend the full distance over a salt marsh to
access the water's edge as required by the town of Duxbury's
zoning bylaws (zoning bylaws), the defendant, the Duxbury zoning
board of appeals (board), denied the application of the
plaintiff, John McLaughlin (plaintiff or McLaughlin), for a
special permit. A Land Court judge concluded that this case
presents one of those "rarely encountered points," Britton v.
Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 74-75
(2003), where no rational view of the facts (as found by the
trial judge) supported the board's conclusion, and ordered the
board to issue the special permit. Because the judge's careful
and detailed findings, conclusions, and analysis are amply
supported by the record, we affirm so much of the judgment that
annuls the board's denial of the special permit; however, rather
than order the board to issue the special permit, we vacate the
remainder of the judgment, and remand for entry of orders
consistent with this opinion.2
2 We acknowledge the amicus brief submitted by Friends of the Bluefish River. The amici are residents of Duxbury and include abutters to the site of the proposed pier. They unsuccessfully sought to intervene in the Land Court case, but did not appeal from the denial of their motion and therefore that issue is not before us. 3
Background. As relevant here, section 404.20 of the zoning
bylaws (section 404.20) requires that a pier "must extend the
full distance over any salt marsh used to access the water's
edge."3 The parties disagree as to whether the proposed pier
complies with this requirement. There is no dispute that the
proposed pier will extend over the grassy, vegetated area of the
salt marsh and that the float at the end of the pier will rest
in the water -- at least at high tide. Accordingly, the
plaintiff's contention that the pier reaches the water's edge
after crossing "the full distance" of the salt marsh is sound.
The board nevertheless maintains that even though the pier
reaches the water in this manner, it still does not satisfy
section 404.20, because the inlet where the float will be
located should be considered part of the salt marsh. According
to the board, this inlet is part of a tidal creek and because
State wetlands regulations provide that a salt marsh "may"
include "tidal creeks," see 310 Code Mass. Regs. § 10.32 (2014),
the board argues that the pier will terminate within the salt
marsh, regardless of whether it has reached the water's edge.
By contrast, the plaintiff contends that the inlet is not a
3 As discussed in more detail infra, the terms salt marsh and water's edge are not defined in the zoning bylaws. 4
tidal creek but instead is a tidal flat that lies outside the
bounds of the salt marsh.4
Summary judgment narrowed the issues, but the judge
concluded that there was a material fact dispute -- whether the
pier would extend the full distance over the salt marsh and
terminate in a tidal flat or whether it will terminate in a
tidal creek. Thus, as stated by the judge, the question posed
for trial was as follows: "Is the area where the Pier[5] is
designed to land a 'tidal creek' and, therefore, part of the
salt marsh, or a 'tidal flat' which exists beyond the salt
marsh?" In order to resolve this question, among other things,
the judge heard testimony from opposing expert witnesses and
took a view of the site. Because the judge's decision turns in
large part on his factual findings, our review requires us to
set forth the facts in some detail, all of which are drawn from
the judge's findings and the trial exhibits, "supplemented by
undisputed facts of record." Wendy's Old Fashioned Hamburgers
4 As discussed infra, a salt marsh generally is defined by its vegetation. The board makes no claim that the area where the float is to be located includes salt marsh species.
5 Section 6.0 of Duxbury's wetlands regulations, adopted by its conservation commission, defines "pier" as "the entire structure of any pier, dock, wharf, walkway, bulkhead or float, and any part thereof including pilings, ramps, walkways, floats and/or tie-off pilings attached to the shore." 5
of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374,
375 & n.3 (2009) (Wendy's).
1. The property and special permit application.
McLaughlin owns property that sits on the Bluefish River, a
tidal river within Duxbury Bay, and portions of his property are
subject to the tide cycles of the Atlantic Ocean. The property
is improved with a home on its western end, and a vegetated salt
marsh projects in an easterly direction from a coastal bank and
railroad tie wall in the rear of the home. To the north of the
vegetated salt marsh is the inlet at issue, which is quite wide
at its eastern end where it joins the open Bluefish River, and
narrows gradually as it proceeds west, toward the house. On the
northern side of the inlet is another vegetated salt marsh.
Aerial photographs of the general area show finger-like
projections of salt marsh, separated by very narrow inlets of
water ending a considerable distance before the upland area.6
The exception is the inlet at issue on McLaughlin's property,
which is substantially wider than the other inlets, narrows at
its westerly end, and terminates closer to, but still many feet
from, the railroad tie wall and the upland area of the property.
6 Section 570.2 of the zoning bylaws defines upland area as "[a]ll lands not defined herein as wetlands." 6
In May 2018, McLaughlin filed an application for a special
permit (application) with the board to construct a pier on his
property, consisting of a 198-foot elevated walkway, a twenty-
foot ramp, and an eight-foot by twenty-foot float.7 The area
where the walkway would cross is a grassy, vegetated marsh.
Rather than extending to the eastern end of the salt marsh (a
distance that would exceed 200 feet), the plans submitted with
the application depicts the pier taking a jog to the north and
ending in or near the widest part of the inlet, such that the
float at the end of the pier would rest on what is labeled a
tidal flat on the plans. The tidal flat area fills with
seawater at high tide and empties at low tide, leaving a muddy
area. Approximately forty feet west of the float (toward the
house), the plans indicate the presence of a tidal creek. The
tidal creek notation coincides with where the inlet begins to
narrow as it continues toward the west.
2. Applicable regulations and definitions. Duxbury's
zoning bylaws contain a wetlands protection overlay district
(WPOD), article 404, the purpose of which "is to afford
7 McLaughlin's application for a special permit followed protracted proceedings before the Duxbury conservation commission, which issued an untimely denial, and ultimately culminated in a superseding order of conditions issued by the Department of Environmental Protection (DEP), approving the project on May 24, 2016. McLaughlin submitted substantially the same plans approved by DEP to the board in support of his application for a special permit. 7
safeguards for both the coastal and inland wetlands located
within" Duxbury. McLaughlin's property is located in the WPOD.
The proposed pier (sometimes referred to as project) is a use
allowed by special permit in the WPOD pursuant to section
406.6(1) of the zoning bylaws.
The question whether the proposed pier extends the full
distance over the salt marsh used to access the water's edge
requires us to review the applicable regulations and definitions
and we set them out here to facilitate later discussion.
Section 404.20 of the zoning bylaws specifically addresses the
"suitability of residential piers." At issue is section
404.20(2), which provides that such piers "shall not exceed two
hundred (200) feet in length and must extend the full distance
over any salt marsh used to access the water's edge" (emphasis
added).8 The term salt marsh is not defined in the zoning
bylaws, but the judge concluded that the board's use of the
definition contained in 310 Code Mass. Regs. § 10.32 was
reasonable and McLaughlin does not contend otherwise on appeal.
This is consistent with the long-standing principle that the
meaning of undefined words is determined according to their
common and approved usages in other legal contexts. See Pelullo
8 Section 404.20 contains other size, materials, and locational requirements, all of which the board concluded the proposed pier satisfied; they were not at issue at trial. 8
v. Croft, 86 Mass. App. Ct. 908, 909 (2014). See also Langevin
v. Superintendent of Pub. Bldgs. of Worcester, 5 Mass. App. Ct.
892, 892 (1977). That definition provides that a salt marsh
"means a coastal wetland that extends landward up to the highest
high tide line . . . , and is characterized by plants that are
well adapted to or prefer living, in saline soils." 310 Code
Mass. Regs. § 10.32(2). The definition further provides that
"[a] salt marsh may contain tidal creeks, ditches and pools."9
Id.
Tidal creek is not defined in the zoning bylaws, local
wetlands regulations, the Wetlands Protection Act, or any other
regulatory source. Creek is defined in 310 Code Mass. Regs.
§ 10.04 (2014) as "the same as a stream"; the same regulation
defines stream as "a body of running water, including brooks and
creeks, which moves in a definite channel in the ground due to a
hydraulic gradient, and which flows within, into or out of an
Area Subject to Protection under M.G.L. c. 131, § 140. A
portion of a stream may flow through a culvert or beneath a
bridge."
9The judge and the parties have adopted an interpretation of the definition of salt marsh under which all tidal creeks are considered part of the salt marsh. Given the use of the term "may," that interpretation is not compelled. However, no party suggests that the interpretation is unreasonable and in the absence of a legal argument to the contrary, we accept that interpretation for the purposes of this appeal. 9
McLaughlin's plans label the portion of the inlet where the
float will lie as a tidal flat. A tidal flat is defined as "any
nearly level part of a coastal beach which usually extends from
the mean low water line landward to the more steeply sloping
face of the coastal beach . . . ."10 310 Code Mass. Regs.
§ 10.27(2). And, finally, a coastal beach "means unconsolidated
sediment subject to wave, tidal and coastal storm action which
forms the gently sloping shore of a body of salt water and
includes tidal flats. Coastal beaches extend from the mean low
water line landward to the dune line, coastal bankline or the
seaward edge of existing human-made structures, when these
structures replace any one of the above lines, whichever is
closest to the ocean." Id.
3. The board's decision. Despite the absence of a
definition of tidal creek, the board concluded in essence that
the inlet is a tidal creek, and that because tidal creeks are
included in the definition of salt marsh, the project as
proposed impermissibly terminates in the salt marsh. The board
concluded that although the pier met all other applicable
criteria of zoning bylaw sections 404.20 and 906.2 (the general
10"'[T]idal flats' . . . refer to 'the area between mean high water and mean low water.'" Arno v. Commonwealth, 457 Mass. 434, 436 (2010), quoting Opinion of the Justices, 383 Mass. 895, 902 (1981). 10
special permit section of the zoning bylaws), it did not meet
the requirement that the pier "extend the full distance over the
salt marsh." Specifically, the board credited the conclusion of
the Duxbury conservation commission (commission) that the pier
"ends within a narrow tidal creek in the salt marsh and never
reaches open water." It therefore denied the application.
The board expressly rejected the opinion of its peer
reviewer (who opined that the pier complies with section
404.20[2]) because the peer reviewer indicated "that it had not
reviewed or confirmed the existence or scope of the marsh."
Instead, the board relied on the recommendation of the
commission and the opinion of Lenore White,11 a wetland scientist
who testified before the board. Although the commission had
lost its jurisdiction to enforce the local wetlands protection
bylaw because it issued its decision on the project late, the
commission weighed in on the special permit application, as is
contemplated by the zoning bylaws.12 The commission recommended
11White first became involved in 2013 when, on behalf of a group of townspeople, she provided comments in opposition to the project before the commission. She testified on behalf of her clients in opposition to the application before the board and was hired by the board after McLaughlin appealed from its decision.
12Section 404.8(1) of the zoning bylaws provides that the board "shall refer a special permit application to the Conservation Commission, the Duxbury Bay Management Commission, the Board of Health, and the Planning Board for written comments 11
that the board deny the special permit, reasoning "that the
design of the pier is unlike any other pier that has been
permitted in Duxbury because the structure ends within a narrow
tidal creek in the salt marsh and never reaches open water."13
The board credited the commission's recommendation and noted
that (i) there is "nothing in the zoning Bylaw that requires
[the] board to ignore the recommendations of the commission
. . . simply because" the Department of Environmental Protection
(DEP) had issued a superseding order of conditions,14 and (ii) it
found "no reason to depart from the commission's recommendation
with respect to whether the proposed Pier extends the full
distance over the 'salt marsh.'"
The board also relied on the expert testimony of White,
who, the board said, "testified at the public hearing that the
proposed Pier ended in a tidal creek that was itself part of the
salt marsh and that the resource delineation lines reflected in
[McLaughlin's] plan were unreliable." The board found that
and recommendations before taking final action on said special permit application."
13The commission also expressed concerns about negative impacts on the salt marsh and the public's view. The board, however, did not mention these concerns in its decision; rather it found that the site is suitable for a pier, the pier will not harm natural habitats or valuable natural vegetation, and "[s]cenic views from public ways and developed properties have been considerately treated."
14 Neither party pursues this issue on appeal. 12
McLaughlin's delineation between the tidal creek and tidal flat
was less credible than White's testimony that the pier ends in
the salt marsh.
4. The Land Court decision. The judge took a view of the
site and conducted a two-day trial. He heard testimony from
experts for both parties on the issue whether the pier is
designed to terminate in a tidal creek, which is part of the
salt marsh (and therefore is not in compliance with the zoning
bylaws), or in a tidal flat, which extends to the water's edge
at high tide (and therefore is in compliance with the zoning
bylaws). Complicating the judge's task was the fact that
neither the zoning bylaws nor wetlands regulations define the
term tidal creek. Indeed, the judge found that even where terms
were defined, all of the experts agreed that the definitions in
the DEP regulations for coastal resources have "problems" due to
their age (and lack of updating) and may be subject to differing
interpretations between wetland scientists.
In his decision, the judge first discussed the testimony of
the two experts offered by McLaughlin: Paul A. Brogna, the
engineer who designed the project, and Robert M. Gray, a wetlands
scientist.15 Both experts testified that the float at the end of
15The judge found that Brogna has been involved in the design and permitting of approximately sixty residential piers. He also found that Gray has been a certified wetland scientist 13
the pier would be situated over a tidal flat rather than a tidal
creek. The judge credited Gray's testimony that a tidal flat is
comprised of organic materials and is usually found adjacent to
and at a lower elevation than the vegetation in a salt marsh.
The judge credited testimony from both Brogna and Gray that
tidal flats in the Duxbury area generally are between an
elevation of 0 and 9.2-9.5 feet, consistent with the inlet at
issue here.16 Both experts testified that they could identify a
tidal flat by sight, and the judge found that both conducted
several site visits to verify what they saw on resource maps and
plans with what they observed to be tidal flats on the site.17
Neither Gray nor Brogna had ever encountered a pier project
where the presence of a tidal creek was at issue. Gray opined
that the definition of creek and stream relied on by White
since 1994 and since 1983 has provided consulting services for construction in and around wetland resource areas.
16The judge noted Gray's testimony that DEP essentially confirmed their delineation of a tidal flat, and found that "[a]lthough [it is] not binding on the Board or this court, it is certainly relevant that the DEP issued a superseding order of conditions approving construction of the Pier in the area shown on the project plans."
17The judge found that Brogna prepared a topographic plan which identified the natural features of the site, in part by reviewing "the United States Geological Survey entitled Duxbury Quadrangle 1974 . . . and a map maintained by the MassGIS [Bureau of Geographic Information within the Executive Office of Technology Services and Security] called the 'wetlands change map.'" 14
referred to fresh water because inland wetland regulations
address land under creeks and streams. Gray further opined that
there is no tidal creek on the plans because he observed no body
of water originating in the upland area that flowed into the
inlet "due to a hydraulic gradient" that would meet the
definition of creek in 310 Code Mass. Regs. § 10.04.18 In sum,
according to Gray, a tidal creek "denotes a freshwater source
that at some point in its flow seaward is influenced by the
tide"; here, where there was no freshwater source, he opined
that there was no creek, and, therefore, no tidal creek.
In contrast to Brogna and Gray, White opined that the inlet
in which the float would be situated was a tidal creek, and thus
was part of the salt marsh.19 As a result, she concluded that
the pier would not comply with section 404.20 requiring it to
extend the full distance over the salt marsh. White offered two
reasons for her opinion. First, she disagreed with the
18Gray testified that the delineation of a tidal creek on the plans was placed at the urging of the commission, and that he had made efforts to have it removed because in the absence of a regulatory definition of tidal creek, he could not support the continuing use of the terminology.
19The judge found that White is a certified wetland scientist who operates her own consulting business concerning design and permitting work in wetland resource areas; she previously had been employed by DEP for twenty years. She had conducted peer reviews for the Duxbury conservation commission approximately ten times in the two years prior to trial, in addition to conducting peer reviews for other conservation commissions. 15
designation of the tidal flat area on McLaughlin's plans
because, in her view, Brogna and Gray had relied solely on maps
that were unreliable for that purpose. Second, extrapolating
from the definition of salt marsh and creek, White testified
that the inlet area at the end of the pier fit the description
of creek or stream. She further testified that the tidal flows
alone -- into and out of the inlet area -- coupled with
declining topography, met the definition of a "body of running
water" for purposes of the regulatory definition of a creek.
See 310 Code Mass. Regs. § 10.04.
The judge credited the testimony of Brogna and Gray,
finding that their evaluations, in contrast to White's,
"reflected a more detailed analysis" of the property and its
coastal resources. The judge found that Gray and Brogna
"consulted several databases, reviewed the regulatory
definitions, inspected the property multiple times, and made
determinations about the presence of wetlands resource areas
based on years of relevant experience with construction along
sensitive shoreline areas." Although White testified that the
various maps relied on by the experts, herself included, were
dated and were not reliable for delineation purposes on their
own, the judge found that Brogna and Gray had verified that
information with onsite inspections, unlike White, who had not
made a site visit. In addition, the judge rejected White's 16
opinion that the inlet satisfied the regulatory definition of a
creek or stream, finding her opinion "strained." The judge
noted that if White were correct, then any area subject to tidal
flows would qualify as a tidal creek. This would mean that the
entire area depicted on the plans was a tidal creek, and that
"there is no tidal flat in any area shown on the project plans,"
which, the judge found, is inconsistent with the delineation of
tidal flat made by Brogna and Gray based on a process even White
agreed should be conducted. The judge also rejected White's
opinion because she failed to conduct a site visit or an
independent coastal wetlands delineation even though she
considered it "the most important factor in properly delineating
a coastal resource area"; her opinion suffered from deficits
similar to those that caused the board to reject its peer
reviewer's opinion, and "she appeared before the [b]oard as an
advocate of a group of townspeople who opposed the project."
The judge ultimately found White's testimony "unconvincing," and
concluded that the pier "depicted on the project plans will end
in a tidal flat which, at high tide, is the water's edge."
Finally, the judge concluded that the board's decision was not
subject to substantial deference because the board acted
unfairly and without facts to support its decision and the
denial of the special permit was "unreasonable, whimsical,
capricious and arbitrary." 17
Discussion. "Judicial review of a zoning board's decision
pursuant to G. L. c. 40A, § 17, 'involves a peculiar combination
of de novo and deferential analyses.'" E & J Props., LLC v.
Medas, 464 Mass. 1018, 1019 (2013), quoting Wendy's, 454 Mass.
at 381. "The judge reviews the facts de novo without giving
evidentiary weight to the board's findings, . . . and reviews
with deference the board's legal conclusions within the
authority of the board" (quotation and citation omitted). E & J
Props., LLC, supra. "If the board's decision is supported by
the facts found by the judge, it may be disturbed only if it is
based on a legally untenable ground, or is unreasonable,
whimsical, capricious or arbitrary" (quotation and citation
omitted). Fish v. Accidental Auto Body, Inc., 95 Mass. App. Ct.
355, 362 (2019). The board's decision will not be upheld,
however, "where no rational view of the facts the court has
found supports the board's conclusion." Wendy's, supra at 383.
"We accord deference to a local board's reasonable
interpretation of its own zoning bylaw . . . with the caveat
that an incorrect interpretation of a statute . . . is not
entitled to deference" (quotation and citation omitted).
Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley,
461 Mass. 469, 475 (2012). As we discuss below, in the
circumstances of this case, judicial acceptance of the board's
interpretation is not required. Cf. Warcewicz v. Department of 18
Envtl. Protection, 410 Mass. 548, 550 (1991) (agency
interpretation of own regulation owed substantial "deference,
not abdication").
1. Expert opinions. Here, the judge was faced with the
assessment of the opinions of competing expert witnesses.
"Faced with a battle of experts, the fact finder may accept one
reasonable opinion and reject the other." Delta Materials Corp.
v. Bagdon, 59 Mass. App. Ct. 439, 441 (2003), quoting Fechtor v.
Fechtor, 26 Mass. App. Ct. 859, 863 (1989). To the extent the
board argues that the judge erred in crediting the opinions of
Brogna and Gray because they changed how they depicted the inlet
through different iterations of the plans, the argument is
unavailing. Both were questioned on this issue at trial. Gray
explained the difficulty he had finding a regulatory definition
that would allow him to "put some boundaries" on a tidal creek
and the reasons he concluded that the area in which the pier
terminates is a tidal flat.
The judge was free to accept or reject all or any part of
this evidence. See Epstein v. Board of Appeal of Boston, 77
Mass. App. Ct. 752, 760 (2010) (judge's province to assess
credibility and weight of expert opinion). The judge was
satisfied with the explanation of the evolution of Brogna's and
Gray's opinions. As the record supports the judge's findings
and conclusions, we will not disturb them on appeal. See Bask, 19
Inc. v. Municipal Council of Taunton, 490 Mass. 312, 320 (2022)
(trial judge's findings will only be set aside if clearly
erroneous or there is no evidence to support them).
2. Coastal beach. The board next argues that the judge's
finding that the pier ends in a tidal flat is clearly erroneous
because tidal flat is defined as part of a coastal beach and in
the absence of the upland or steeply sloping face of a coastal
beach, there cannot be a tidal flat. The board contends, and
its expert, White, testified, that there was no coastal beach
delineated on the plans submitted with the special permit
application and that the DEP did not check "coastal beach" as a
resource area in its superseding order of conditions. White
further claimed that salt marsh is not part of a coastal beach.
Rather than merely pointing out a potential technical
omission on the plans or on the part of DEP, we construe the
board's argument to be that the absence of the delineation of
coastal beach on the plans and on DEP's superseding order of
conditions is proof that a coastal beach simply does not exist
and that we should conclude, therefore, that tidal flats could
not exist in the area of the inlet, rendering the judge's
conclusion that the pier terminates in a tidal flat clearly
erroneous. We are not persuaded.20
20We note that the board's decision did not mention the absence of a delineation of coastal beach, nor has the board 20
The definition of coastal beach expressly includes tidal
flats. See 310 Code Mass. Regs. § 10.27(2). The definition
does not necessary exclude the existence of tidal flats without
a steeply sloping face part of a coastal beach. The definition
provides that "[c]oastal beaches extend from the mean low water
line landward to the dune line, coastal bankline[,] or the
closest to the ocean" (emphasis added). Id. The plans
submitted with the application delineate the tidal flat, and
delineate the "top of coastal bank" along the existing railroad
tie wall on the McLaughlin property. Nothing in the definition
suggests that a delineation between where the tidal flat ends,
and the coastal bank begins, needs to be identified.
Moreover, when the board asked Brogna why a coastal beach
was not shown on the plans, he testified that "[w]e didn't
delineate it specifically as a coastal beach. We showed it as a
pointed to a specific provision in the zoning bylaws that would require that delineation. Whether that was a requirement of the commission or DEP is not an issue before us. Moreover, the board is attempting to defend its decision on a ground that it did not articulate in the decision itself. See Costello v. Department of Pub. Utils., 391 Mass. 527, 536 (1984) ("we will not supply a reasoned basis for the [board's] action that the [board] itself has not given" [quotation and citation omitted]). Cf. Doe, Sex Offender Registry Bd. No. 11204 v. Sex Offender Registry Bd., 97 Mass. App. Ct. 564, 576 (2020). 21
tidal flat because a tidal flat is part of a coastal beach." He
said that "[m]ost tidal beaches of Duxbury have sand. This area
doesn't." Gray also testified that the coastal beach is
"designated with the words tidal flats." Having concluded that
the float rests on tidal flats, the judge implicitly credited
this testimony. It bears repeating that in offering her
opinion, White did not visit the site and conduct her own
coastal wetlands delineation. Whatever significance may be
inferred from the absence of a separate designation of coastal
beach on the plans or on the superseding order of conditions, it
does not compel a conclusion that there are no tidal flats where
the pier will terminate. The board has not shown that more was
needed in order to qualify for a special permit.
3. Deference to the board. The board also claims that the
judge did not give it the deference to which it is entitled.
The judge's duty was to make findings of fact de novo without
deference to the board's findings. See E & J Props., LLC, 464
Mass. at 1019. Whether the float at the end of the pier would
rest on the salt marsh or on a tidal flat was a question of fact
and the subject of conflicting expert testimony which the judge
resolved.
Contrary to the board's argument, the evidence before the
board and before the judge was not "substantially similar."
Having made very different credibility determinations based on 22
the experience of the experts, the number of times the experts
viewed the area, and the level of detail and factual support in
the experts' analyses, the basis for the judge's decision
differed dramatically from that of the board. In these
circumstances, the judge did not "substitute his opinion" for
that of the board; he drew reasonable conclusions based on
different facts.
The judge's detailed findings refute the suggestion that
the board made and applied a reasonable interpretation of the
zoning bylaws, in reliance on the opinions of White and the
commission, that was entitled to deference. See Shirley Wayside
Ltd. Partnership, 461 Mass. at 475. Incorrect interpretations
of the zoning bylaws are not subject to deference, and the
judge's ultimate conclusion that the board incorrectly concluded
that the pier would terminate in a tidal creek was supported by
the record. See id. Moreover, the board's argument that the
judge disregarded the commission's concerns that the float at
the end of the pier would "harm and destroy the salt marsh," and
substituted his judgment on that issue, is wholly unavailing.
The board implicitly rejected the commission's concerns about
impacts on the resource areas through its findings. See note
13, supra. Where the board itself did not rest its decision on
the commission's concerns and implicitly rejected them in its
findings, an accusation that the judge substituted his judgment 23
for that of the board is unfounded. This is not a case where
the judge weighed the impacts of the pier on the salt marsh and
came to a different conclusion from the board. Compare ACW
Realty Mgt., Inc. v. Planning Bd. of Westfield, 40 Mass. App.
Ct. 242, 247-248 (1996) (extent of traffic impacts on
neighborhood was determination for board and judge should not
have substituted his judgment); Kinchla v. Board of Appeals of
Falmouth, 11 Mass. App. Ct. 927, 927 (1981) (when weighing
whether noise generated by use of proposed pool would have
adverse effect on neighborhood, judge could not substitute his
judgment). In contrast, here, on the basis of conflicting
expert testimony, the judge made a factual determination and
concluded that the float at the end of the pier would end in a
tidal flat which, at high tide, is the water's edge. The
suggestion that the judge substituted his judgment on an issue
subject to reasonable disagreement best left to the board is
without support.
To the extent the board argues that it was entitled to deny
the permit even if all of the statutory and regulatory criteria
were met, see Clear Channel Outdoor, Inc. v. Zoning Bd. of
Appeals of Salisbury, 94 Mass. App. Ct. 594, 600 (2018), there
has been no showing here that the board purported to rely on
that discretionary authority. See Wendy's, 454 Mass. at 387
(judge not obliged to search for facts to support rationale 24
board did not provide). Moreover, such discretion is not
unlimited. See id. Cf. Costello v. Department of Pub. Utils.,
391 Mass. 527, 535-536 (1984). Given the board's factual
findings that the proposed pier satisfied all other requirements
for the special permit and that it did not articulate a reason
to exercise its discretion to nonetheless deny the special
permit, we discern no abuse of discretion in the judge's
decision to annul the board's decision.
4. Remand. Although we are generally "reluctant to order
a board to implement particular relief," as was done here when
the judge ordered the board to issue a special permit, "an order
of particular relief may be appropriate where remand is futile
or would postpone an inevitable result." Wendy's, 454 Mass. at
387-388. We understand why, where the judge annulled the only
basis provided by the board for rejecting the application, the
judge thought it proper to order the board to issue the special
permit. The issuance of a special permit may well be inevitable
where, "[o]n remand, a board may not ignore or disagree with the
specific findings of a reviewing court after a judge has
fulfilled her statutory duty to 'determine the facts.'" Id. at
389, quoting G. L. c. 40A, § 17. However, an order directing
issuance of a permit is exceedingly rare, and the issuance of a
special permit is not the only question at issue; because the
board denied the special permit based on an incorrect 25
interpretation of the zoning bylaws, it had no occasion to
consider whether reasonable conditions to a special permit would
be appropriate to protect the interests targeted by the WPOD.
Therefore, a remand is necessary to afford the board an
opportunity to impose reasonable conditions on construction of
the pier. Contrast MacGibbon v. Board of Appeals of Duxbury,
369 Mass. 512, 520 (1976) (directing that order enter
instructing board to issue special permit where board had denied
application three times on legally untenable grounds).
Conclusion. We affirm the judgment insofar as it annuls
the board's decision to deny the application for a special
permit. We vacate so much of the judgment that orders the board
to issue the special permit, and the case is remanded to the
Land Court for entry of an order remanding the case to the board
to expeditiously issue the special permit after considering
whether imposition of reasonable conditions is warranted.21
So ordered.
21McLaughlin's request for attorney's fees and costs is denied as they are allowed against the board only where it has "acted with gross negligence, in bad faith or with malice." G. L. c. 40A, § 17. Here, the board was faced with interpreting a local bylaw whose terms were not well defined. Although we agree with the judge that the board's interpretation was not reasonable, we do not conclude that it was grossly negligent or made in bad faith or with malice.