McLaughlin v. Zoning Board of Appeals of Duxbury

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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

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.

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.