Turnpike Realty Co. v. Town of Dedham

284 N.E.2d 891, 362 Mass. 221, 3 Envtl. L. Rep. (Envtl. Law Inst.) 20221, 4 ERC (BNA) 1344, 1972 Mass. LEXIS 781
CourtMassachusetts Supreme Judicial Court
DecidedJune 26, 1972
StatusPublished
Cited by71 cases

This text of 284 N.E.2d 891 (Turnpike Realty Co. v. Town of Dedham) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Turnpike Realty Co. v. Town of Dedham, 284 N.E.2d 891, 362 Mass. 221, 3 Envtl. L. Rep. (Envtl. Law Inst.) 20221, 4 ERC (BNA) 1344, 1972 Mass. LEXIS 781 (Mass. 1972).

Opinions

Spiegel, J.

The petitioner, the owner of 61.9 acres of land in Dedham, brought this petition in the Land Court under the provisions of G. L. c. 185, § 1 (j%), and c. 240, § 14A, to determine, inter alla, the validity of an amendment to a zoning by-law as applied to the land of the petitioner. The judge in his decision ruled that the by-law “was a valid exercise of the authority and powers conferred upon the respondent . . . by . . . [G. L. c.] 40A and is in full force and effect as to the petitioner’s land.” The case is here on the petitioner’s exceptions to several of the judge’s findings and to his denial of a number of the petitioner’s requests for rulings.

The petitioner acquired the land in question in 1947. It is made up of uplands and lowlands and includes two knolls, one of 3.2 acres and the other of .2 acres, which rise above the elevation of the petitioner’s lowland. The land is bounded by Route 1, the Boston-Dedham boundary line, the Charles River, and the Mother Brook. At the annual town meeting in 1963 the respondent amended its “zoning by-laws and [zjoning [m]op by adopting a zoning by-law establishing a “Flood Plain [224]*224District,” which included “the land of the petitioner, except for a minor portion thereof.” Prior to the amendment the entire area involved in this case was in a general residence zoning district. The judge found that the knolls were included in the flood plain district. The remaining land of the petitioner is “a low swampy area” bordering on the Charles River.

Pertinent portions of the by-law, with paragraph numbers added by us for clarity of reference, are as follows: “[1] The purpose of the Flood Plain District is to preserve and maintain the ground water table; to protect the public health and safety, persons and property against the hazards of flood water inundation; for the protection of the community against the costs which may be incurred when unsuitable development occurs in swamps, marshes, along water courses, or in areas subject to floods; and to conserve natural conditions, wild life, and open spaces for the education, recreation and general welfare of the public. [2] Within a Flood Plain District no structure or building shall be erected, altered or used, and no premises shall be used except for one or more of the following uses: Any woodland, grassland, wetland, agricultural, horticultural, or recreational use of land or water not requiring filling. Buildings and sheds accessory to any of the Flood Plain uses are permitted on approval of the Board of Appeals. Notice of each such Flood Plain building permit application shall be given to the Town Public Works Department, to the Town Board of Health, to the Town Planning Board, and to the Town Conservation Commission as well as all other parties required. [3] The Board of Appeals, in hearing such application, shall consider, in addition to any other factors said Board deems pertinent, the following aspects with respect to flooding and Flood Plain District zoning provisions: that any such building or structure shall be designed, placed, and constructed to offer a minimum obstruction to the flow of water; and that it shall be firmly anchored to prevent floating away. [4] If any land in the Flood Plain district is proven to the [225]*225satisfaction of the Board of Appeals after the question has been referred to the Planning Board, the Board of Health, and the Board of Selectmen, and reported on by all three boards or the lapse of thirty days from the date of referral without a report, as being in fact not subject to flooding or not unsuitable because of drainage conditions for any use which would otherwise be permitted if such land were not, by operation of this section, in the Flood Plain district, and that the use of such land for any such use will not interfere with the general purposes for which Flood Plain districts have been established, and will not be detrimental to the public health, safety, or welfare, the Board of Appeals may, after a public hearing with due notice, issue a permit for any such use. [5] Except as provided above, there shall be in the Flood Plain District: No land fill or dumping in any part of the District. No drainage other than Flood Control works by an authorized public agency. No damming or relocation of any water course except as part of an over-all drainage basin plan. No building or structure. No permanent storage of materials or equipment. [6] In any Flood Plain District after the adoption of this provision, no land, building, or structure shall be used for sustained human occupancy except dwellings theretofore lawfully existing, or land, buildings or structures which comply with the provisions of this by-law.”

The petitioner attacks the validity of the by-law on several grounds. Many of its arguments overlap. We treat its central contentions as it has presented them in its brief.

1. A recurrent argument throughout the petitioner’s brief is that the prime purpose of the by-law was to “retain . . . [its] land in its natural state and as a flood water detention basin.” It appears to rely to a considerable extent on various statements made by members of the Dedham conservation commission which suggest that their primary interest in urging the adoption of the by-law was for the above reasons. This [226]*226demonstrates, it argues, that the by-law was “not regulatory, but confiscatory.”

The validity of this by-law does not hinge upon the motives of its supporters. See Caires v. Building Commr. of Hingham, 323 Mass. 589, 596. The reasons for the creation of the flood plain district are clearly set forth in the by-law itself. There is no need to speculate about the “prime purpose” of the by-law. Whether the stated purposes are within the authority granted by the Zoning Enabling Act, G. L. c. 40A, is a question which we will consider in the course of this opinion.

2. The petitioner takes the position that lands which are not subject to flooding from “natural” causes cannot or should not be included in a flood plain district, and that the judge’s rulings denying the petitioner’s requests on this point were erroneous.1 It admits that its land was on occasions “covered with water” because of the overflow from the Charles River but charges this is mismanagement of the Mother Brook bascule gate2 by one Salvatore Trementozzi, an employee of the Metropolitan District Commission. The petitioner seeks to characterize this flooding as “artificial.”

The Mother Brook bascule gate was completed in 1959 as part of flood control work on the Charles River to reduce the effect of flooding. Trementozzi testified that when the gate is lowered, water is diverted into Mother Brook; when it is raised, water remains in the Charles River. He also testified that he made the decision “on a regular basis” whether to raise or lower the gate. On , certain dates when the petitioner’s land was flooded, Trementozzi decided not to lower the gate. The petitioner argues that the flooding over its land could have [227]*227been prevented by “proper” operation of the gate. The evidence, however, in no way suggests that Trementozzi’s management of the gate was unreasonable, or that “the locus was ... an area which was being utilized by Trementozzi, at the expense of the petitioner, for public purposes.”

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

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284 N.E.2d 891, 362 Mass. 221, 3 Envtl. L. Rep. (Envtl. Law Inst.) 20221, 4 ERC (BNA) 1344, 1972 Mass. LEXIS 781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turnpike-realty-co-v-town-of-dedham-mass-1972.