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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 twentyfoot 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." 

9 The 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 

11 White 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. 

12 Section 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." 

13 The 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 

15 The 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. 

16 The 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." 

17 The 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 

18 Gray 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. 

19 The 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

20 We 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 

seaward edge of existing human-made structures, when these 

structures replace any one of the above lines, whichever is 

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.

21 McLaughlin'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.