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MacGibbon v. Board of Appeals

Citation: 6 ELR 20444
No. No. P-244, 344 N.E.2d 185/369 Mass. 523, (Mass., 01/09/1976)

The court directs the Duxbury board of zoning appeals of issue a permit allowing the excavation and filling of plaintiffs' tidal marsh, subject to conditions necessary to prevent erosion of the fill. A rehearing is denied in a supplemental opinion emphasizing that the decision should not be construed to reflect adversely on other environmental laws not at issue in the case. In two previous decisions concerning the same controversy, the court had ordered the board to consider the plaintiffs' application as one only for excavation and filling, not as one for residential construction, and to include coastal wetlands in the town bylaw provision allowing special permits for alteration of otherwise protected wetlands. In reviewing the board's third permit denial, the court, applying the arbitrary or capricious standard of review, finds that the board incorrectly based its decision on the ground that subsequent permits for sewage and building might be denied. Although the board's denial was not based solely on grounds of preserving the plaintiffs' land in its natural state, the agricultural and recreational uses left to plaintiffs are not of practical value. Where land is above the mean high water mark, preservation of the ocean food chain is not a legally tenable ground for denying the permit. Danger from flooding and erosion of land above the mean high water mark can be considered by the board, but the permit cannot be denied outright where such danger can be mitigated by appropriate conditions in the permit. Costs are not allowable to plaintiffs absent board action in bad faith or with malice, neither of which occurred here.

A dissent argues that the board engaged in a valid exercise of the police power to restrain an injurious private use. The court's opinion does not indicate that the lower court's meticulous findings of probable harm from plaintiffs' activity are plainly wrong. The board's findings of erosion harm should not be held legally untenable merely because an appellate court, without recourse to professional assistance, might initially find differently.

A petition for rehearing by the board and several amici curiae is denied. The court emphasizes that its decision has no effect on state and federal conservation programs, state coastal and inland wetlands statutes, and other environmental statutes not considered in the main opinion, and was decided without reaching any implicit constitutional issues.

The amicus curiae rehearing petition and brief of the Massachusetts Attorney General are available through the Document Service. See ELR 65318.

Counsel for Plaintiffs
Bruce MacGibbon
Box 329
South Wellfleet MA 02663
(617) 349-3209

Counsel for Defendants
Donald L. Connors
Tyler & Reynolds
One Boston Place
Boston MA 02108
(617) 523-6550

Counsel for Amicus Curiae
Francis X. Bellotti, Attorney General
Charles Corkin, II
Ellyn R. Weiss
Stephen M. Leonard Asst. Attorneys General
131 Tremont Street
Boston MA 02111
(617) 727-2265

Gregor I. MacGregor
Massachusetts Ass'n of Conservation Comm'ns
Tufts University
Medford MA 02155
(617) 628-5000

Douglas I. Foy
Alexandra D. Dawson
Alan H. Kaufman
Massachusetts Audubon Soc'y
S. Great Road
Lincoln MA 01773
(617) 259-9500

R. Lisle Baker
Suffolk University
41 Temple St.
Boston MA 02114
(617) 723-4700

Stuart DeBard
Weston, Patrick, Willard & Redding
84 State St.
Boston MA 02109
(617) 742-9310

For the court; Reardon & Wilkins, JJ., dissent with opinion.