directing that order enter instructing board to issue special permit where board had denied application three times on legally untenable grounds
How later courts described this case
- directing that order enter instructing board to issue special permit where board had denied application three times on legally untenable grounds
- order of special permit permissible where application for special permit to fill marshland had previously been denied three times on legally untenable grounds
- where agency has denied permit application on patently untenable grounds for thirteen years, justice and equity are served by ordering issuance of the permit
- danger of flooding and erosion was not legally tenable ground for outright denial of permit
Written by the judges who cited it.
The opinion
*521 Reardon, J.
(dissenting with whom Wilkins, J., joins). I dissent. In my view this court is making a serious mistake in promulgating this opinion and the order which it contains. The marshlands of Massachusetts are an invaluable natural resource, and their acreage, which is limited, is subject to constant incursions which, it seems to me, with proper respect for property rights, we have an obligation to preserve not only for ourselves but for the generations to follow. The expert testimony before the trial judge gave ample support to this proposition. It would appear that the plaintiffs purchased seven acres of tidal salt marsh in 1961 for $1,000. At trial there was competent testimony that the current value of the property was $5,350. On March 12, 1960, prior to the purchase by the plaintiffs, the town signalled its intention to protect its wetlands by the amendment to the zoning by-law set out in the main opinion. We treated the plaintiffs’ petition of September 27, 1962, to the board of appeals “[t]o fill and/or excavate” all or part of the seven acre tract in MacGibbon I. The case came back, and MacGibbon II was the result. The suggestion was there made that the town might preserve its wetlands by purchase, acquisition of easements, or takings by eminent domain.
Having had no part in MacGibbon I or MacGibbon II, this is the first opportunity which has been afforded to me to disagree with that proposition. It is my contention that basic to the problem which this case presents is a valid exercise for the public police power to restrain an injurious private use by the plaintiffs, a concept well stated by Chief Justice Shaw in Commonwealth v. Alger, 7 Cush. 53 , 84-86 (1851), and recently embraced by the Supreme Court of New Hampshire in Sibson v. State, 115 N.H. 124 (1975), on March 31, 1975. In Mac-Gibbon I we took note of the town’s position that “‘[i]f promiscuous changes in the surface of the earth are permitted, the attendant risks to the public health and safety are obvious. . . .’” At 692. Reference also was *522 made to flooding dangers. It was then said that “[t]hese are essentially contentions of fact which, if adequately verified and found applicable to the plaintiffs’ petition, may provide a reasonable basis for the denial of the permit.”
In the present case, in careful findings, the judge has recited what happens when one tampers with a salt marsh, particularly when the tampering includes the installation of a leaching bed sanitary system. He cited also the function of marsh grasses on wave action and erosion. His findings were framed after a lengthy trial, and nowhere does the court’s opinion conclude he was plainly wrong. The opinion does state that “a finding is required that the prospective erosion of the fill and of adjoining upland could be decreased to an acceptable level by appropriate conditions and safeguards.” It further states that “[t]he danger of flooding and erosion was therefore not a legally tenable ground for outright denial of the permit.” On this proposition I have two comments. First, why is the board’s resolution of the erosion problem legally untenable because this court hearing the case initially might have resolved it differently? We told the board in MacGibbon I to go back and consider flooding and erosion. This it did and came up with findings which subsequently found the Superior Court in accord. Second, it is not improper to inquire how it is, sitting far from the locus and absent professional help, that we as an appeal court can arrive at our own conclusions on highly technical matters when at the same time we do not label the judge’s findings as plainly wrong.
In short, the case is freighted with important implications far beyond the case itself, and what flows from it will return to haunt us.