In the case, the Board determined that the applicant failed to prove the development was not “subject to flooding”, even though proposed dwellings “complied with all setback and other dimensional requirements, and would be constructed on pilings.” The Massachusetts Appeals Court in, Doherty v. Planning Board of Scituate, 82 Mass. App. Ct. 1124 (2012), found that the Board wrongfully denied the permits stating that the term "subject to flooding" within town zoning bylaws only refers to issues with sea level elevation and not the risk of flood surges during coastal storms.
Last month, the SJC overturned the Appeals Court decision, stating that the term "subject to flooding" (when undefined in the bylaws) is meant to be broad and unrestrictive. While Chief Justice Ireland reiterated the importance of "judgment" in reviews for special permits, this decision will give Zoning Boards more discretion in reviewing special permit applications for coastal properties.