Boston South Shore area some problems and conflicts

[From the U.S. Government Printing Office, www.gpo.gov]

11094

Coastal Zone
Information
Center IBM
ATKU'An, OYU
THE BOSTON SOUTH SHORE AREA
SOME PROBLEMS and CONFLICTS

EDITED BY
THOMAS ENGELLENNER
FRED CURTIS
WILLIAM W. SEIFERT
HULL

COHASSET

HINGHAM SCITUATE

GC
57.2
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c no.75-23

M. I.T
SEA
GRANT
PROGRAM SEA GRANT PROJECT 04-6-158-44007

MASSACHUSETTS INSTUTITE OF TECHNOLOGY NATIONAL SEA GRANT PROGRAM

HE BOSTON SOUTH SHORE: SOME PROBLEMS AND CONFLICTS

C 01 Al "a" T A L Z 0 NY E
I N FR M, AT"19" i WN C E N T E R

0, OT 111977

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THE BOSTON SOUTH SHORE: SOME PROBLEMS AND CONFLICTS

A report based on an interdepartmental student project
in systems engineering at the Massachusetts Institute
of Technology, Spring Term, 1975

Edited by:

Thomas Engellenner
Fred Curtis
William W. Seifert

lk"

This report describes the results of research done as
part of the M.I.T. Sea Grant Program with support from
the Office of Sea Grant in the National Oceanic and
Atmospheric Administration, United States Department
of Commerce, through grant number 04-6-158-44007,
and from the Massachusetts Institute of Technology.
The United States government is authorized to produce
and distribute reprints for governmental purposes
notwithstanding any copyright notation that may appear
hereon.

Report Number MITSG 75-23
Index Number 75-123-Cdi

Preface

Each year a group of students taking the M.I.T. subject "Projects in
Systems Engineering" explores a different, broadly defined problem of

current interest. 'This book describes the study initiated by such a group In
Spring Term 1975. The students, whose names are given below, were drawn

from several departments at M.I.T. and from the School of Law, Boston Uni-

versity, as you will note.

Fred Curtis Environmental Engineering Program, M.I.T.
C. M. Da lvi Department of Ocean Engineering, M.I.T., S.M. Program
Tom Engellenner School of Law, Boston University
John Fieldsteel School of Law, Boston University
Neal Glick School of Law, Boston University
David Johnson Department of Ocean Engineering, M.I.T., S.M. Program
Larry Keller School of Law, Boston University
Larry Michaels Department of Civil Engineering, M.I.T., Undergraduate
Jim Osborn Department of Civil Engineering, M.I.T.
Because the effort receives support as one element under a grant from the

Sea Grant Program of the National Oceanic and Atmospheric Administration
(NOAA) , an ocean or coastal zone related topic was sought.
During the Spring Term 1973 study, students developed modeling and gam-

Ing techniques for appraising alternative approaches for alleviating some of

the problems facing the coastal region of Maine. During the 1974 Spring Term,

another group examined conditions in the harbor area of the City of Gloucester,
Massachusetts, and made a series of recommendations for steps that might be

taken to encourage effective development of the area.

During the fall of 1974, as the time approached for selection of a project

for the 1975 Spring Term, Captain Thomas Suddeth of Cohasset asked if I felt

an appraisal of policies that Cohasset might take to channel its development

so as to achieve an appropriate balance between protection of the environmen-

V i PREFACE

tal qualities of the town and maintenance of economic viability would be an

appropriate subject for investigation.

After a series of discussions with Captain Suddath, with Ms. Martha

Reardon of the South Shore Chamber of Commerce, and others, the decision was

made to expand the scope of the study to include an examination of the towns

of Cohasset, Hingham, Hull, and Scituate.

The class benefited greatly from its meetings with Captain Suddath and

Ms. Reardon, and from a discussion and slide presentation given by

Mrs. Wendell J. Leary and Ms. Margaret Dillon of Cohasset, and also from

conversations with numerous other citizens of the South Shore area. The

students also appreciated the opportunity to hear from Mr. Marc Kaufman about

the status of the Massachusetts Coastal Zone Management Program and from

Professor Carl Steinitz of Harvard University concerning his extensive study of

another group of communities south of Boston.

1 should also like to acknowledge the valuable guidance and insights

provided by Professor David Rice of the School of Law, Boston University. He

first encouraged the Boston University students to join in the study and then

supervised their efforts.

Finally, this effort has received the continuing support of Mr. Dean Horn,

who at the time of this study was Executive Officer of the M.I.T. Sea Grant

Program and has since been made its director. The editorial effort required to

reduce the results of the student study to report form and preparation of the

final manuscript were supported jointly by the NOAA Office of the Sea Grant,

Grant No. 04-5-158-1, 1974-1975 project element and the Henry L. and Grace

Doherty Charitable Foundation, Inc.

William W. Seifert
Professor of Civil Engineering
Massachusetts Institute of Technology

Cambridge, Massachusetts
May 1977

Contents

Preface v

Chapter 1- THE SOUTH SHORE IN TRANSITION 3

Physical Geography, 3
Historic Development, 5
Post War Development, 6
Selected Demographic Characteristics, 11
Economic Base, 16
Present Land Use, 24
Population Projections, 32

Chapter 2. CONTROLLING GROWTH 37

Exclusionary Practices and Housing, 37
A. Large Lot Zoning, 39
B. Mobile and Multi-family
Homes Prohibitions, 43
C. Bedroom Restrictions, 45
Affirmative Duties, 47
A. The Federal Role, 47
B. The New Jersey Approach, 49
C. The Massachusetts Approach, 52
Proposals for Change, 56
Concern for Conservation, 62
A. Wetlands Act, 62
B. The Scenic Rivers Act, 63
C. Municipal Floodplain Zoning, 63
D. The Home Rule Amendment, 64
The Limits of Regulation, 66
A. The Regulation/Taking Line, 66
B. Nonconforming Users, 73
C. Other Alternatives, 75

Chapter 3. WASTE COLLECTION AND TREATMENT 79

Population- Capacity Relationships, 80
Planning Strategies, 84

v i i CONTENTS

Chapter 4. TRANSPORTATION SYSTEMS 91

Problems and Issues, 91
The Highway and Road System, 92
Existing Transportation Modes, 94
A. Automobile, 96
B. Bus System, 96
C. Rapid Rail Transit, 99
D. Hull-Boston Ferry, 100
Proposed Intertown Transportation
Services, 100
A. Commuter Boat, 100
1. Service Description, 100
2. The Prediction of Demand for
Alternative Transportation
Modes, 104
3. Regarding the Hoverferry, 112
B. Development of the Greenbush
Right-of-Way, 115
Intkatown Transportation Services, 117

Chapter 5. COASTAL RECREATION 121

The Scope of Public Rights, 122
A. Historic Background, 122
B. The Massachusetts Court's
Decision on Public Passage
Rights, 124
Alternative Methods of Expanding Public
Rights, 126
A. Federal Intervention, 126
B. Follow-up State Proposals, 127
C. Acquisition, 128
Municipal Exclusion of Non-Residents, 131
TheEffect of Opening Municipal Beaches, 135

Chapter 6. SUMMARY AND RECOMMENDATIONS 141

Housing, 141
Conservation, 142
The Planning Process, 143
Waste Collection and Treatment, 144
Transportation, 145
Coastal Recreation, 147

Contents i X

Appendix I Notes for Chapters 151

Chapter 1, 151
Chapter 2, 153
Chapter 3, (none)
Chapter 4, 165
Chapter 5, 167
Chapter 6, (none)

Appendix II List of Figures 171

Appendix III List of Tables 173

Appendix IV Flow Chart for Figure 4-7, Cascading 175
Demand Model Structured for the Coastal
Communities

. Chapter One

THE SOUTH SHORE IN TRANSITION

CHAPTER1 The South Shore in Transition

PHYSICAL GEOGRAPHY

The study area lies on the edge of the Boston Basin -- a giant, mostly
submerged depression formed millions of years before the Ice Age when a

large section of land sank in response to the shifting of the Earth's crust.

The ancient fault line cuts across the South Shore (see Fig. 1-1) separating

the lowlands of Hingham Harbor and Hull from the ridges of southern Hingham

and Cohasset. When the glaciers arrived they left their own unique impres-
sions in the form of drumlins, smooth rounded deposits of glacial till that
form the hills and islands of the Boston Harbor area. 1 The Hull peninsula,

which extends seven miles into Boston Harbor, is a series of drumlins con-

nected by sand bars and man-made causeways. Wetlands cover a large

portion of the remaining, low lying terrain particularly along Hingham Harbor,

the Weymouth Back and Weir Rivers. The most notable feature of the Basin

Lowlands, however, is the Atlantic side of the Hull peninsula where

Nantasket Beach embraces nearly four miles of ocean surf. It is both the

widest and the longest unbroken beach of the study area.
The seascape changes drastically beyond Hull and outside the confines
of Boston Harbor. Here Massachusetts' last granite outcropping meets the

sea along the rocky cliffs of Cohasset. Thoreau once described the Cohasset

coast as "the rockiest shore in Massachusetts -- hard, sienitic rock which
waves have laid bare but have not been able to crumble. " 2 There are few

places in Cohasset or sourthern Hingham where the soil is not shallow or
punctured by the bedrock. Although the soils are rocky, they once supported

dense forests. Much of this has given way to residential development with

the exception of a few areas maintained by the government or conservation

groups. The coastal cliffs which terminate at the eastern headland of Cohasset

BOSTON

Boston Basin

N0003ket Beach
HULL Strait& Pond
Little Harbor
I Cohosset Harbor
Hingham Harbor Bassings Beach
C@3 0 Weir River Strawberry Point
6
The Glades

Scituate Beaches
Weymouth COHASSET
Sock River Scituate Harbor

WEYMOUTH HINGHAM SCITUATE

fault line--,,.
The Driftway

Now Mouth
North River Al
Humorock

MARSHFIELD Old
\ Mouth

FIGURE 1-1: Geographic Features

Physical Geography 5

Harbor are broken by two salt water ponds, Straits Pond and Little Harbor.

West of Cohasset Harbor lies an extensive marsh known as the Glade and the

virtually unused Bassing Beach.

Past Strawberry Point, the western headland of Cohasset Harbor, the

Scituate coast dips south changing from rock ledge to sandy beaches. The

beach, however, is broken in numerous places where erosion has raised

fragile cliffs. Scituate Harbor is the study area's third major harbor and is

located about two-thirds of the way down the Scituate shore. Inland, the

soils are deeper and richer than those of its northern neighbors, although
farming, like forestry, has been largely displaced by housing.

The North River, Scituate's southern boundary, is the study area's

largest waterway and one of the few unscathed estuaries that remain in south-

east New England. The driftway region near the river's mouth is also an

important aquifer and recharge area for water supply. Humarock, the final
stop on the geographic itinerary, is a long, narrow barrier beach off the coast

of the Town of Marshfield. Once a peninsula extending from Scituate, it was

separated from the town when the North River broke through its banks in 1898.

Since then, the old mouth has filled in, making Humarock physically part of
Marshfield but still under the political auspices of Scituate. Almost the
entire coast of Humarock is sandy beach, but there are serious erosion
problems and the ever present possibility of severe damage from coastal

storms.
HISTORIC DEVELOPMENT 3

Home rule is deeply engrained in the study area. For Hingham, Hull,

and Scituate the tradition goes back over 350 years. Cohasset is a relative

newcomer, not being separated frorn Hingham until 1770.

Although the Cohasset Harbor area was reportedly visited by Captain

John Smith in 1614 while on an exploratory mission from the Virginia colony,

settlers did not arrive until the New England colonies were established. Con-

trol of the South Shore, particularly of the cattle-feed of Cohasset Harbor's
salt marshes, became a divisive issue between the Plymouth and Massachu-

6 THE SOUTH SHORE IN TRANSITION

setts Bay colonies until settled by a line which remains unchanged as the

Cohasset-Scituate boundary.

By the time of the revolution, the four towns were firmly established.

Fishing and fanning were the primary occupations, although shipbuilding also
flourished in Hingham Harbor and the North River. The early industrialization

of New England, however, passed by the South Shore for lack of swift-flowing

waterways.

The isolation was accentuated by transportation problems. Travel to

Boston by land was slow and stage coach service sporadic. The introduction

of steam boats in the early 1800s helped by shortening the travel-time to

Boston, but it was not until the opening of the Old Colony Railroad line in

1849 that the South Shore was truly linked with the metropolitan area. The

railroad stimulated farming and non-water power manufacturing by providing

quick and inexpensive transportation of local goods and produce to the
market places of Boston. The bustling economy also attracted new residents,
many of which were recent immigrants. By the turn of the century modest

communities had developed around each station of the Old Colony line.

By 1900 another result of the railroad was noticeable -- the rise in

summer visitors. The beaches of the South Shore were becoming resort towns.
Old-fashioned boarding houses for weekends or part of the summer were

particularly prevalent along Nantasket. Those who could afford it built

summer homes. Cottages sprang up throughout Hull and Humarock. Many of

the affluent chose the cliffs of Cohasset for their homes but estates could be

found throughout the study area. The "Estate Era" came to an end shortly

after World War 11, perhaps because the auto and airplane made other areas
of the world more accessible, but more likely because of the intense develop-

ment pressures of the post World War II era.

POST WAR DEVELOPMENT

At the end of World War II, there was, by one estimate, a need for over
five million new units of housing in America. 4 The manifest reasons were the

Post War Development 7

low priority of housing construction during the war effort and the increase in
family units as veterans returned, married, and settled down. The Boston area,

like other metropolitan areas, felt particularly hard pressed -- the greatest

demand for housing was near jobs or educational facilities and Boston had both.

At the same time a silent, but certain, national policy to decentralize

American cities appears to have emerged. Cities had always grown at their
edges, adding on new rings like a tree, but the postwar development was

different, both in scale and in philosophy. Almost overnight the single-family

home became the American dream.

There were many strong desires that gave impetus to suburbia: getting

away from crime and unsanitary conditions that many associated with high

density living; owning rather than renting and the security it brought; providing

a better environment for the children; and enjoying the semi-rural atmosphere.

At the same time there were many government inducements. There were

VA loans, mortgage interest and property tax deductions from income taxes,

regional highway systems to suburbia, and aggressive destruction of urban

neighborhoods in the name of renewal.

By the time the Route 3 connection from Hingham to the Southeast Express-

way was completed in 1959, the South Shore was well on its way to suburbani-

zation. From 1940 to 1950 the population of the study area grew by 37 percent,
while the metropolitan area grew by 0. 8 percent. From 19 50 to 19 60 the four

communities added another 66 percent compared to 9.0 percent for Greater
Boston. (See Table 1-1)

In the first few years after the war the housing industry had responded

slowly to the great demand for homes. Nationwide there were problems of

capitalization and converting the small-time, less-than-ten-hou ses -a -year

companies into effective large-scale developers. By 1950, however, the

housing industry, sparked by Levitt's successes on Long Island, had created
the mass production home. 5 As a result, the modern subdivision was born.

During the decade from 1950 to 1960 over 3,000 building permits for new
homes were granted by the four communities (See Table 1-2) The homes built

TABLE 1-1

POPULATION GROWTH

1940 1950 1960 1970 % Change
1940-70

Hingham 8,003 10,665 15,378 18,845 135
Hull 2,167 3,379 7,055 9,961 360

Cohasset 3,111 3,731 5,840 6,954 124

Scituate 4,130 5,993 11,214 16,973 311

Total 17,411 23,768 39,487 52,733 202

Metropolitan
Boston 2,350,514 2,369,986 2,595,481 2,753,700 17

Sources: U.S. Census of Population .1940, 1950, 1960 and 1970.

TABLE 1-2

BUILDING PERMITS FOR NEW HOMES

1950-54 1955-59 1960-64 1965-69 1970-74 Total

Hingham 664 454 531 522 379 2,550
Hull 455 145 54 57 29 711

Cohasset' NA 2 NA 160 132 118 --

Scituate 932 643 588 455 333 2,951

Total -- -- 1,333 1,166 859 --

1. Prior to 1972 Cohasset did not have a building code. Figures are ba sed on
plumbing reports to the State Board of Health.

2. Prior to the State Plumbing Code in 19 60 there was no permit requirement in
Coha s set.

Sources: Annual Town Reports; City and Town Monographs; Massachusetts
Department of Commerce and Development; Housing Construction Statistics;
U.S. Census Bureau.

Post War Development 9

were typically on small lots (one-half or one-quarter acre) and within

walking distance of the ocean or town centers. The most recent Federal

census of housing provides a second indicator of the magnitude of the

building boom of the 1950s. It reveals that 21 percent of all homes in the
study area were built in that decade (see Table 1-3). The data also reveal
the fact that over half (51 percent) of local housing was built from 1940 to

1970, while metropolitan-wide these three decades accounted for only 30

percent oF housing.

TABLE 1-3

AGE OF HOUSING

1939 or 1940-49 1950-59 1960-69 Total
earlier

Hingham 2,528 605 1,038 1,085 5,301

Hull 1,873 393 559 426 2,972
Cohasset 1,194 171 426 386 2,177

Scituate 1,851 548 1,163 1,141 4,703

Total Study Area 7,446 1,717 3,231 2,759 15,153

Percent of Total
Housing 49% 11% 21% 19% 100%

Metropolitan Boston 568,752 72,406 124,240 125,583 890,981

Percent of Total
Housing 64% 8% 14% 14% 100%

Source: U.S. Census of Housing 1970.

The decade from 1960 to 1970 continued many of the trends of the fifties
(local population increased 34 percent while the Boston SMSA grew only six
percent) , but also revealed changes. Nationwide, the decade marked a turn-

ing point; for the first time the total population of the suburbs exceeded the

10 THE SOUTH SHORE IN TRANSITION

population of the central cities. The increase in suburban representatives at

the statehouses and congress triggered a crusade to develop a local ability to
deal with growth. With the help of Federal funds, comprehensive plans were
commissioned and the housing industry became "regulated"; there were wet-
land permits, subdivision approvals, site plans, building inspectors, plumbing

inspectors, wire inspectors and so on.
Nevertheless, the housing boom continued. New building permits granted

in the study area from 1960 to 1970 numbered 2,499, and the homes built ac-

counted for 18 percent of the existing housing stock. The most noticeable

change in the homes of the sixties was size -- bigger homes on bigger lots.

A quick succession of town zoning amendments placed large areas in zones

which required 40,000 square feet for each lot.

The sixties also revealed a marked increase in the conversion of South

Shore summer homes to full-time residences. This phenomenon was particular-

ly prevalent in places such as Hull and Humarock where large numbers of

summer homes already existed and little vacant land remained. The number of

conversions is hard to quantify because permits were not always required or
sought even if required. As an example, in the 1960-1970 period, the popula-

tion of Hull grew by 2,906 but only I I I new home permits were granted.

Today the housing industry along the South Shore is still growing. Some

developments have leapfrogged over the more expensive, vacant parcels in the

study area for the cheaper, less regulated land further south. Construction

starts have been delayed by the economic slump and high interest rates, but
recent Federal housing legislation should stimulate the industry. Both Hull and

Scituate are considering measures to slow the conversion of summer homes but

strict enforcement of building codes is likely to be politically unfeasible. In
summary, residential construction this year will probably be greater than in the
past two years but the constraints of less vacant land and stricter regulation
indicate that the number of additional dwellings will not be as great as in the

peak years of the early sixties.

Selected Demographic Characteristics 11

SELECTED DEMOGRAPHIC CHARACTERISTICS

The South Shore is a haven for families. The latest Census data reveals

43 percent of the population is under 19. Likewise, there is a disproportion-
ately high number of residents within the 30 to 45 age group, the prime child
raising years. A comparison of 1960 and 1970 Census figures reveals that in-

migration of established families has maintained these figures -- the percent

of the population under 19 throughout the last decade has remained constant

despite declining birth rates. A final indicator of the "family" nature of the
four towns is the dependency ratio (the ratio of the population under 19 or
over 65 to the population 19 to 65). The study area had an average ratio of
1. 03 which compared with 0. 88 for the metropolitan area (see Table 1-4) .

The flight of families to the South Shore is almost entirely a white flight.
While we make no pretense of having studied the issue of racial segregation

extensively, much less of having uncovered a solution, we note that the study
area is 99.3 percent white. While this relatively common suburban phenomenon
may be the result of threats or seller's conspiracies, it is more easily explained
by simple economics: few blacks or other minorities can afford homes within

the price range of these communities and, furthermore, few are willing to pay

as much as a white buyer for the opportunity of settling there.
According to the 1970 Census of Housing, the median price asked for
homes then on sale in Scituate was $3 1, 100 and in Hingham $40,800.

Although figures were not available for the other two towns,we can assume that
the median for Hull was slightly lower and the Cohasset median slightly

higher, keeping the average around $35,000.

Given the recent rate of inflation, it is not unreasonable to assume the

1975 average asking price for the South Shore homes to be around $40,000. At
this price, who can afford to move into these towns? A $40,000 home with a
20 percent down payment would require $32,000 financing. Assuming a 25-

year, 8.5 percent mortgage rate, yearly payments would amount to $3,127.
Pre s ent fu 11 valu e tax rate s in the four commu niti e s vary from $ 4 3 to $ 8 8
per thousand. Assuming an average tax rate of $65/1,000, the would-be

TABLE 1-4

1970 POPULATION - AGE DISTRIBUTION

Age Group Hingham Hull Cohasset Scituate Total Metropolitan

Boston

<5 1,680 906 516 1,632 4,734 2.18,437

5-9 2,185 1,158 736 2,226 6,305 251,716

10-14 2,353 1,225 903 2,325 6,806 261,665

15-19 1,810 961 642 1,599 5,012 250,438

20-24 920 716 335 741 2,712 242,497

25-29 970 619 334 860 2,783 187,522

30-34 1,030 496 338 997 2,861 143,018

3S-39 1,196 534 423 1,121 3,274 144,725

40-44 1,280 589 566 1,172 3,607 160,734

45-49 1,284 571 421 1,045 3,321 163,b3O

50-754 1,031 573 423 835 2,862 154,394

55-59 880 492 365 630 2,367 140,650

60-64 681 379 288 507 1,855 125,389

>65 1,565 742 665 1,283 4,255 309,885

<20 8,007 4,250 2,797 7,772 22,826 982,301

(<20)+( >65) 9,572 4,992 3,462 9,055 27,081 1,292,186

20-65 9,272 4,969 3,493 7,918 25,652 1,462,559

Dependency 1.03 1.00 0.99 1.14 1.06 0.88
Ratio

Source: U.S. Census of Population, 1970

Selected Demographic Characteristics 13

homeowner would be paying $2,080 a year in taxes. The total yearly cost
excluding all the incidentals such as insurance, utilities, etc. would run

$5,207 a year.

It is generally said that housing costs should not exceed 25 percent of

the occupant's income. Working backward with these known costs, it is
obvious that the average newcomer must have a yearly income of $20,828 to

settle here. This figure is at odds with the present income levels of the

inhabitants. In fact more than one-half of the families living in the study area

would be excluded from the present market!

The 1970 income levels of the families and unrelated individuals in the

study area are shown in Table 1-5. Median income levels varied from $13,123

for Cohasset to $9,397 for Hull, and each median was above the metropolitan

average. While median income gives a good approximation of salaries earned,

this figure does not reveal the actual standard of living because of differences

in family size. In this respect per capita income is a better indicator, and
Figure 1-6 reveals a considerably higher percentage variation (38% vs. 28%).

While the total study area's per capita income was above the metropolitan

average, Hull was below and Scituate only equal to this standard.
Poverty, as defined by the Federal Government, is shown in Table 1-6.

The Census Bureau's standard is based on a sliding scale ranging from incomes
of less than $1, 600 for an individual to less than $7,800 for a family of four.

According to the 1970 figures 5.2 percent of the local population is below the

federal standards.

The residents of the study area are employed in a wide spectrum of

occupations and this range closely approximates the metropolitan distribution
(see Table 1-7) - The largest differences were in the professional, managerial,
and sales categories where the four communities had more than the Greater

Boston average,and in the clerical and operative categories where they had less.
Sociologists have often classified workers by grouping professional, manage-

rial, service, clerical and sales occupations into one class and all others into
a second group. To the extent that white collar/blue collar distinctions have

TABLE 1 - 5

1970 INCOME OF FAMILIES AND UNRELATED INDIVIDUALS

Income Bracket
Dollars Hingham Hull Cohasset Scituate Total Metro

Under 3,000 3.6% 7.8% 2.7% 4.2% 4.5% 6.1%

3,000 - 5,999 6.2 12.5 6.0 7.8 7.9 10.8

6, 000 - 9, 999 17.2 24.3 15.8 15.9 17.9 23.2

10,000 - 14,999 27.4 30.8 25.7 31.8 29.2 29.8

Over 15,000 45.6 24.6 49.8 40.3 40.5 30.1

median $12,729 $ 9,397 $13,123 $12,194 - $11,449

Per Capita 4,251 3,120 5,022 3,713 $ 3,908 3,713

Average 16,546 11,979 18,956 14,731 15,417 13,284

Source: U.S. Census of Population, 1970

TABLE 1-6

POVERTY INDICATCRS
Hingham Hull Cohasset Scituate Total City of Metropol.
Boston Boston

No. of families below
poverty level 164 186 30 168 548 16,624 40,236

Percentage of all
families 3.6% 8.2% 1.8% 4.2% 4.4% 11.7% 6.1%

Unrelated individuals
below poverty level 244 121 112 191 668 33,720 79,908

Percentage of all
unrelated individuals 27.3% 21.1% 26.8% 25.2% 25.4% 30.7% 28.8%

Total persons below
poverty level 876 823 186 858 2,743 99,262 228,233

Percentage of all
persons 4.7% 8.3% 2.7% 5.1% 5.2% 16.2% 8.5%

Source: U. S. Census of Population, 1970

16 THE SOUTH SHORE IN TRANSITION

any relevance, we note the study area is 77 percent white collar as compared
with 72 percent for the metropolitan region.

ECONOMIC BASE

If the term "bedroom community" is ever appropriate, the study area is
aptly described by it. According to 1970 statistics only 29 percent of local
workers could find employment within their own town (see Table 1-8). Although
local employment has risen from 6,713 to 8,553 since 1970 (see Table 1-9), a

similar rise in the size of the local work force maintained the pattern of low
local employment.

The pattern is not surprising, given the occupational status of the
residents (discussed previously) and the present location of jobs in the metro-

politan region. Since a large portion of the residents pursue professional or

managerial positions, commuting to the center cities or the office parks of the
Route 128 beltway is a necessity. Table 1-8 also indicates that 25 percent of

total work force commutes to the City of Boston and that this figure varies from

a high of 33 percent of the work force for Cohasset to a low of 21 percent for

Scituate.

Another facet of the employment picture whichTable 1-8 discloses, is the

importance of the South Shore region as a source of jobs. Roughly one-half of
the total work force is employed in the adjoining towns of Norfolk and Plymouth

counties that are loosely defined as the South Shore. While a large portion of
these jobs are concentrated in the industrialized communities (i.e. Weymouth
and Quincy) that lie between the study area and Boston, the importance of an
emerging identity should not be ignored. The South Shore Chamber of Com-
merce (SSCC) has been a primary motivating force in this regard. One of the
outstanding achievements of the SSCC has been the development , in coopera-
tion with Norfolk county, of a Computerized Industrial Land Inventory. The

inventory project, which was recently praised by the National Association

of Counties, is a compilation of all industrially zoned parcels larger than two
acres with a comprehensive analysis of industrial value parameters such as

Economic Base 17

lot size, topography, available sewers and water, assessed valuation and

taxes, rail siding, distance from main routes and airports, adjacent land
available, buildings and size of buildings, owners, contours, and other
characteristics of the land. The South Shore as a region (although not neces-
sarily the four towns of our study area) shows a strong potential for industrial

development. The available labor force and good transportation access to the
region are grounds for optimism, although some manufacturers interviewed felt
that the region's lack of skilled and semi-skilled operatives was a constraint.

The scope of local industrial activities and recent trends in local employ-

ment are indicated in Tables 1-9, 1-10, and 1-11. The percentage of the

workforce self-employed within the study area was higher than the national

and state averages. Local government was the largest single employer in each
of the four towns. After local government, wholesale and retail stores, which

were the next largest local employers, accounted for nearly half of the total

local employment and showed the greatest increases for the 1967-1973 period.

Because there is a strong correlation between population growth and increases

in the wholesale and retail sectors, this trend can be.expected to continue as

long as population continues to rise. A similar correlation can be found be-

tween growth and the service sector. Contract construction was the most

volatile employment, being influenced by mortgage rates and availability of
money. Manufacturing showed the second largest growth rate (61 percent in
the 1967-1973 period), with most of the new industrial jobs generated in
Hingham. At present, Hull has no industrial employment at all, largely due
to its inaccessibility and lack of suitable land. Hingham appears to have the

strongest potential for industrial expansion because of its rail access and

nearby docking facilities on the Weymouth Back River. Only Hingham has any
extractive industry, although the study area is rich in sand and gravel. Pro-

tective zoning and nuisance laws have effectively curtailed such enterprises

in the other communities. Agriculture has also been curtailed; the controlling

force here being the housing market and soaring property taxes. Even with

the recently adopted farmland tax abatement, the prospects for continuing

TABLE 1-7

OCCUPATIONAL DISTRIBUTION
Hingham Hull Cohasset Scituate Total Metropolitan
Boston

Professional 1,515 566 614 1,469 4,164
% 22.2 16.1 24.6 24.4 22.1 20.0

Managerial 1,207 397 464 863 2,913
% 17.7 11.3 18.6 14.4 15.6 9.0

Service 639 537 290 643 2,109
% 9.4 15.2 11.6 10.7 11.2 11.9

Clerical 1,139 601 354 994 3,085
% 16.7 17.1 14.2 16.5 16.4 22.9

Sales 782 302 303 749 2,136
% 11.5 8.6 12.2 12.5 11.3 7.7

Craftsmen 717 630 235 658 2,240
% 10.5 17.9 9.4 10.9 11.9 11.6

Operatives 552 370 108 365 1,395
% 8.1 10.5 4.3 6.1 7.4 12.8

Laborers 207 97 61 188 553
% 3.0 2.8 2.5 3.1 2.9 3.4

Private House-
hold Worker 62 23 62 82 229
% 0.9 0.7 2.5 1.4 1.2 0.7

TOTAL 6,817 3,523 2,491 6,011 18,842
% 100.0 100.0 100.0 100.0 100.0 100.0

Source: U.S. Census of Population 1970

TABLE 1-8

EMPLOYMENT PATTERNS
Employment
Location Hingham Hull Cohasset Scituate Total

% work along 53% 45% 43% 51% 49%
the South Shorel

% work in
Study Area 33% 24% 41% 38% 34%

% work in
Own Town2 32% 22% 33% 28% 29%

% work in
Boston 27% 24% 33% 21% 25%

Residual 20% 31% 24% 38% 26%

Total 6,817 3,522 2,492 6,011 18,842

I,For purposes of this illustration the South Shore includes Quincy, Milton
Braintree, Holbroke, Weymouth, Hull, Rockland, Cohasset, Hingham,
Hanover, Norwell and Scituate.

2. Included unemployed workers and workers who are employed in areas
other than the City of Boston or the South Shore.
Sources: "South Shore Business Review", South Shore Record, Wednesday,
April 23, 1975; Current Employment Series, U.S. Bureau of Labor Statistics,
1975.

TABLE 1-9

LOCAL EMPLOYMENT

% ot Total Average Annual Employment
Town Number Total Agric<ure Contract Manu- Wholesale
of Firms Employment 1 Fishing Construction fa cturing 2ServiceS3 & Retail

Hingham 411 4,956 1.0 S.3 30.4 19.0 44.1

Hull 135 677 .3 7.4 .0 46.6 45.3

Cohasset 145 1,232 .7 3.6 6.4 36.9 52.0

Scituate 223 1,688 .4 10.6 11.4 27.4 49.9

Total 914 8,533 .8 6.2 20.7 25.6 46.6

1. Excludes government employees
2. For the purposes of this table, mining was included with manufacturing. Only one town, Hingham,
had any mining and this accounted for .2% of its total employment

3. The services category includes hotels and lodging places; establishments providing personnel, busi-
ness, repair and amusement services; medical, legal, engineering and other professional services;
finance, insurance and real estate services; transportation, communications, electric, gas, and
sanitary services
Source- Employment and Wages in Establishments Subject to the Massachusetts Employment Security Law
by Major Industrial Divisions 1967-73. Mass. Div. of Employment Security (Totals may not equal de-
tails due to rounding)

TABLE 1-10

INDUSTRIAL PATTERNS 1967-73
Avera:ge Annual Employmentl for Study Area % of Change
Occupation 1967 1968 1969 1970 1971 1972 1973 67-73

Agriculture &
Fishing 87 88 91 66 63 63 69 -21c/o

Contract
Construction 463 476 454 433 424 487 534 +15%

Manufacturing 1,099 1,251 1,384 1,294 1,241 1,396 1,767 +61%

Services 1,760 1,818 1,747 1,769 1,812 1,975 2,194 +25%

Wholesale &
Retail 2,400 2,703 2,955 3,169 3,173 3,460 3,984 +66%

Total Local
Employment 5,809 6,336 6,631 6,731 6,713 7,381 8,553 +47%

1. Excludes Government Employees

Source: Employment and Wages in Establishments SubJect to the Massachusetts Employment Security
Law by MaJor Industry Division. Mass. Division of Employment Security, 1973

TABLE 1-11

MISCELLANEOUS EMPLOYMENT DATA

Job Category Hingham Hull Cohasset Scituate Total

Private Wage &
Salary Workers 5,084 2,428 1,901 4,370 13,783
Local Gov't Workers 749 385 298 826 2,258
Other Gov't Workers 1,131 699 387 1,105 3,322
Self Employed Workers 582 377 199 520 1,678

Unpaid Family Workers 20 18 5 16 59

Total 6,817 3,522 2,492 6,011 18,842

Source: 1970 Census of Population

16 HULL
15

0
14

13
Uj
z 12
=) I
Uj SCITUATE
L)
cr :0 HINGHAM
0
LL 9
8
0
3t
U. 7
0 6
I.- COHASSET
z 5
w - -
4
3

it In LO
t- Uj
->. z (D CL Z' 0@ Uj >-
4 = -a a. z -i CL >
Uj w
0 0 z

source: Mossochusetts Dept. of Employment
Security.

FIGURE 1-2: Unemployment 1974-1975

NJ
w

24 THE SOUTH SHORE IN TRANSITION

agricultural employment are overshadowed by development pressures.
Unemployment rates, as revealed by Figure 1-2, vary tremendously
between the four communities. The unemployment rate for Cohasset was the

lowest at approximately five percent during the first quarter of 1975. The
figures for Hull during the same period show a rise to over 14 percent unem-
ployment. One mitigating factor in Hull, however, is the fact that its

economic base is almost entirely resort-recreation activity and the winter
quarter reflects the ebb tide of retail and service employment.

On the optimistic side of the employment picture is the fact that the
South Shore has been the leading participant in the Massachusetts On-the-
job Training program (OJT). The training program Is part of the Federal Com-
pTehensive Employment Training Act (CETA) and has been administered by the

South Shore Chamber of Commerce. According to Mr. Davis of SSCC, the

South Shore region placed 114 out-of-work persons in OJT positions between

October 1974 and June 1975. This surpasses all other regions, including
Boston, which filled only 109 positions. Likewise, the average pay for South
Shore OJT was $3.67 per hour, the highest in the state.

While OJT is certainly not the panacea for unemployment within the
study area, it is an indicator of a healthy industrial base capable of growth
if properly stimulated.

PRESENT JAND USE

In 1971 an aerial survey of the Commonwealth was conducted and has
been used to provide some rough approximations of the study area's current
land use. Although the original data was collected by Professor Conell of the
University of Massachusetts as part of a forestry study, the Metropolitan Area
Planning Council (MAPC) has also analyzed the data and categorized the land

in terms of activities (i.e. extractive industries, forestry and saltwater wet-
lands). In Figure 1-3 we have further simplified the classification scheme and
6
presented the. data in slice-of -the-pie form as a means of comparison . The

size of each pie corresponds to a comparative land area of the town it represents.

HULL 1738 acres

COHASSET 6412acres

SCITUATE 11281 acres HINGHAM 14501 acres

!LE Y

source- RESIDENTIAL

GENERALIZED LAND USE
CATAGORIES FOR CITIES RM ECONOMIC BASE
a TOWNS IN SOUTHEAST V T-1 INFRASTRUCTURE
NEW ENGLAND, METROPOLITAN IN PUBLIC USES
AREA PLANNING COUNCIL 1973 AGRICULTURE
aFORESTS

PuZi WETLANDS Ek
WATER

FIGURE 1-3: Present Land Use

26 THE SOUTH SHORE IN TRANSITION

Although the data provide only a rough approximation (forest land
appears to be overrepresented) the "bedroom community" nature of the study
area is further documented. Economic activities consume a very small portion
of the land, while a quarter to a half of each town is devoted to residences.
The size of individual homes, however, varies considerably from town to
town. As Table 1-12 indicates, in Cohasset 73 percent of the residential
land is devoted to homes larger than one-half acre, while in Hull 2 percent
of the residential land is so "open". 7

TABLE 1-12
LOT SIZES

Percentage of Residential Hingham Hull Cohasset Scituate Tbtal
Land Devoted to Homes

Less than 1/2 acre 73% 98% 27% 65% 65%
More than 1/2 acre 27% 2% 73% 35% 35%
Source: Generalized Land use Categories, MAPC, Boston, Mass., 1973

Table l- 13 reveals a number of major differnces between the study area
and the Boston region in terms of type of housing and ownership. Almost 15

percent of the study area's homes are seasonal homes as compared with 0. 6

percent for the region. The bulk of the "summer housing" stock, however, is
concentrated in Hull (3 6. 4 %) and Scituate (16. 1 %) with Hingham and Coha s set

more closely approximating the regional proportion. The vast majority of hous-
ing units within the four towns are single-family homes (86.9%), while the per-
centage of such for the Greater Boston Region is only 43.7 percent. The pro-
portion of owner-occupied structures shows strong correlation to the single-
family home patterns. That is, the study area shows a higher percentage (81.8%)
of owner-occupied dwellings than Metropolitan Boston (50. 8%). The pattern for

individual towns did not vary significantly from the total figures for the study
area. The percentage of single-family dwellings varied from 78.2 percent for

TABLE 1-13

GENERAL HOUSING CHARACTERISTICS
Hingham Hull Cohasset Scituate Total Metropolitan
Boston

Total Units 5,377 4,S58 2,216 5,617 17,728 896,273
Total Year-round Units S,301 2,972 2,177 4,703 15,153 890,981
% Seasonal Homes 0.8 36.4 1.9 16.1 14.9 0.6

O/o Year-round Homes 99.2 63.6 98.1 83.9 85.1 99.4
� Single Family Dwellings' 87.3 78.2 84.6 92.7 86.9 43.7
� Multi-Family Dwellings 1 12.4 21.7 15.4 7.3 13.0 56.1
� Mobile Homes' 0.3 0.1 0.0 0.0 0.1 0.1
� owner Occupied 2 85.7 71.6 80.0 84.4 81.8 50.8
� Renter Occupied 2' 14.3 28.4 20.0 15.6 18.2 49.2
Total Year-round Occupied 5, 160 2,763 2,082 4,553 14,558 859,701

1. Percents are based on total year-round units, including those temporarily vacant due to migration.

2. Percents are based on total year-round, occupied units, thus excluding all vacant homes.

Source: 1970 Census of Housing, U.S. Bureau of the Census

28 THE SOUTH SHORE IN TRANSITION

Hull to 92.7 percent for Scituate. Likewise, the owner-occupied propor-

tion ranged from 71. 6 percent for Hull to 85. 7 percent for Hingham.

For most residents, purchasing a home in the study area was a good

investment. While the value of housing for the Metropolitan area has risen

50 percent during the last ten years, three of the four towns had even higher

percentage increases. Only Hull lagged behind, with a mere 28 percent
increase (see Table 1-14). It should be noted that the values reported in

Table 1-14 are tainted with subjectivity, as they are derived from a Census

question "What do you think your home would sell for today?". Discussions

with the South Shore Board of Realtors indicated that the "going rate" for
homes in Hull is about $26,000. The Greater Plymouth Board of Realtors
estimated the present median value to be in the high $40,000s for Hingham,
in the $50,000s for Cohasset, and in the low to middle $40,000s for
Scituate (the Scituate figures being affected by a sizeable number of summer
homes and converted cottages in the $18,000 - $20,000 price range). The

realtors also estimated the value of homes in the study area has increased

5-10 percent in the past year.

TABLE 1-14

CHARACTERISTICS OF OWNER OCCUPIED HOMES
Hingham Hull Cohasset Scituate Boston
SMSA

1960 Median Value $17,300 $12,900 $20,000 $16,600 $15,900
1970 Median Value $27,400 $16,500 $32,700 $25,100 $23,800

49% change 1960-1970 58% 28% 64% 51% 49%

Median Household
Size for Owner-
Occupied Dwellings 3.6 3.3 3.3 3.7

Source: 1960 and 1970 Census of Housing

Present Land Use 29

As noted previously, rental housing comprises a small percentage of
the housing stock. It is also 11 to 36 percent more expensive than the Metro
politan median. The units, however, are probably larger, as indicated by
larger household sizes (see Table 1-15). Subsidized and public housing is

very low by metropolitan standards, and it is predominately housing for the
elderly built under Ch. 121B, S. 26of the Massachusetts laws. 8

TABLE 1-15

CHARACTERISTICS OF RENTAL HOUSING

Hingham Hull Cohasset Scituate Boston
SMSA

No. of Rental Units 722 781 403 696 405,783
Median Contract Rent $118 $125 $144 $126 $106

Median Renter House-
hold Size 2.6 2.9 2.0 2.3 2.1

Source: 1970 Census of Housing

Over 60 percent of the study area consists of wetlands or other con-

servation areas and, as Table 1-16 shows, protected by wetlands flood plain

or watershed protection zoning. In addition to the police power of zoning to
prohibit certain uses of such conservation lands, the towns have been acquir-
ing large parcels by eminent domain. Table 1-16 includes compilations of the
large parcels recently acquired, or proposed for acquisition, by the four

towns. Although most of the acquisitions are for conservation purposes,

there have been major efforts to acquire land for other future recreational

needs, and, to a large extent, to integrate conservation and recreation acqui-
sitions. Scituate has embarked on a type of land banking by purchasing at

moderate prices large areas of vacant land to meet the future needs for muni-

cipal facilities. Hull's Redevelopment Authority has acquired 33 acres in
order to revitalize their central business district.9Present plans for the re-
newal area call for a marina and other commercial recreational units mixed

C?
En

HULL Protected

COMASSET

HINGHAM
SCITUATE

FTGURE 1-4: Protected Conservation Areas

TABLE 1-16

MAJOR PUBLIC AND QUASI PUBLIC LAND HOLDINGS

Town Name Acres Owner

Hingham World's End 251 Trustees of the Reservations
Whitney Woods 114 Trustees of the Reservations
Wompatuck Park 1,800 State Dept. of Nat. Resources
Home Meadows 80 Town (Commission for Conservation)
Triphammer Pond Area 89 Town (Commission for Conservation)
Brewer's Woods Area 40 Town (Commission for Conservation)
Shirmer Tract 93 Town (School Department)

Hull Nantasket Beach 105 Metropolitan District
Urban Renewal Area 33 Town (Redevelopment Authority)
Hall Estate 68 Town

Cohasset Whitney & Thayer Woods 799 Trustees of the Reservations
Wompatuck Park 560 State Department of Natural Resources
Wheel Wright Park 70 Town
Scituate Wompatuck Park 100 State Department of Natural Resources
Cushing Park 70 State Department of Natural Resources
Fourth Cliff Base 30 Federal Military Installation
Forn-er Boston Sand and
Gravel Property 570 Town (for multi-purpose use)
Ellis Estate 60 Town (Conservation Commission)
Bailey Land 46 Town (Conservation Commission)
Stanley Land 33 Town (Conservation Commission)
Kent St. Marsh 45 Town (Conservation Commission)
Pincin Hill (Proposed) 80 Town (Conservation Commission)
Stem Meadow (Proposed) 65 Town (Conservation Commission)
Reservoir (Proposed) 50 Town (Conservation Commission)

32 THE SOUTH SHORE IN TRANSITION

with high- and low-rise apartments. Also noteworthy is Hull's purchase of the

Hall Estate, the last large tract of undeveloped land within the town. Current

plans for this area include a light industrial zone, a neighborhood shopping
center and cluster development. 10

The state, federal and quasi-public institutional holdings are also
shown in Table 1-16 and make up the final major ingredient in present land
use. The Metropolitan District Commission (MDC) beach at Nantasket is, by

far, the most intensely utilized land in the study area. By one estimate Hull's

population swells to 100,000 on hot summer days due to bathers attracted to
MDG facilities. 11 Wompatuck State Park is the largest perserve within the

study area. Formerly a Naval ammunition depot, it is now used for hiking and

camping. Cushing State Park performs a similar function and is located in

southern Scituate. The Army is currently considering the termination of its base
at Fourth Cliff in Humarock, Scituate and negotiations are underway to acquire
this area which is known for its scenic vista of the North River estuary. The

final major land holders are the Trustees of the Reservations, a non-profit

conservation group nearly a century old. Their two reservations, Whitney-

Thayer Woods and World's End, are available for passive recreation.

POPULATION PROJECTIONS

Forecasting future population is often of fundamental importance to a

community, particularly when it entails planning for future capital facilities,

such as schools and water supply, or when it involves estimating future tax

revenues. The most analytical tool available to planners is the Cohort-Survi-
val Model, which is a method of adjusting past census figures (which have
been disaggregated by sex and age) forward to predict the number of survivors

in each class of the population. The survivors of each class are determined
by three variables: fertility rates, death rates, and net-migration rate. The

first two variables are easily estimated by reference to long trends in local
vital statistics. Properly estimating migration trends, however, is the crux of

skillful forecasting, especially on the local level.

40,000

30,000
SCITUATE

HINGHAM

20,000
18,000
KULL
16,000
14,000
12,000

z 10,000
0
COHASSET
spoo

CL
0
6,0'00

4,000

2,000
1940 1950 1960 1970 1980 1990
T I M E
...... Projection based on 0 Actual 1975 figures
1970 f igures

Actual figures 1940 to 1970

FIGURE 1-5: Population Forecasts

34 THE SOUTH SHORE IN TRANSITION

The Cohort-Survival technique was developed to estimate national

population changes, and can be adapted to metropolitan or regional analyses,

but as the forecast area gets smaller, migration trends become more volatile

and more easily affected by local policy changes. For example, migration

rates are affected by local employment opportunities, vacant land suitable for

building, zoning restrictions, the construction industry, mortgage rates and

the various subjective considerations that comprise the perceived "quality of
life." When Cohort-Survival modeling has been fruitless, planners have often

focused on one or more of the above variables to provide population ceiling

figures. For example, the 19 73 master plan for Scituate focused on the short-

age of land suitable for building upon as the most important constraint on pop-
ulation. Such a constraint can be removed by changing zoning restrictions and

making municipal acquisitions.

In preparing Chapters Two through Five of this report we have been con-

tent for the most part to deal with the population issue subjectively, avoiding

the problem of quantifying the effect of policy changes on migration rates. To

the extent that population forecasts were necessary, we have assumed a growth

rate equal to the 1965-1970 rate. In Figures 1-5 population growth is illustra-

ted logarithmically so that our projections appear as a straight line and imply

a continuation of the 1965-1970 growth rates. Since the first draft of this

report, the 1975 State Census has been tabulated and the actual 1975 popula-

tions have been plotted with our estimates. All in all, they have proven to be
close approximations, and since rigorous prediction has not been necessary

for the policy issues that have been raised, we have continued to use the
figures forecast in Figure 1-5 throughout the report.

Chapter Two

COASTAL RECREATION

CHAPTER 2 Controlling Growth

By any standard the rapid growth of the South Shore has not been unfet-

tered. Municipalities, through a wide variety of measures, have sought to

control the rate and the nature of development. In this paper we will examine
the most prominent "growth controls" of the study area from the economic and
public policy viewpoints. Two main themes emerge. The first is a question-
ing of the legal limits to fiscal zoning. How far can a town go in seeking high

tax-ratable development? What duties does it have to encourage low and
moderate income housing? What effects do exclusionary practices have on
the community? The second field of inquiry delves into the extent-that land

use controls can be used to protect what is perceived as the necessary envi-

ronment. In regulating activities on private land, must a town allow-,a com-

mercial owner a reasonable return on his investment? Must it allow an

individual to build a home or continue to live in a critical environmental area?

Can the landowner be required to leave his land in its natural state without

some payment of compensation by the government?

EXCLUSIONARY PRACTICES AND HOUSING

Zoning and related land use controls, as traditionally employed in
America, invest a tremendous amount of power in local hands. The vague pur-
poses of zoning have been given expansive readings by the courts and local
laws have been blessed with a presumption of validity. Ordinances will not be

struck down unless they are arbitrary or unreasonable or bear no substantial
relationship to the public health, safety, welfare or morals.
There are good reasons for this localized concentration of authority. One

rationale is that local officials have a much better feel for the land and what

sort of development is compatible with present uses and future goals. A second

38 CONTROLLING GROWTH

reason for local responsibility is that municipalities can provide ongoing super-
vision of projects that would be nearly impossible through a centralized

agency.
Nevertheless, there are disadvantages to local control. The system has
tremendous potential for myopic decision-ma king, particularly when permisible
land uses determine municipal revenues. The competition between localities
to satisfy their needs tends to lead to land allocations that are economically
inefficient, at best.

How can we define exclusionary practices? Broadly, we could include
any attempt to alter the market demand for land. I But this definition would
take in almost every type of land regulation. For the purposes of this paper we
have defined exclusionary practices in terms of housing: a regulation is ex-
clusionary if it limits the accessibility to housing within a community. Acces-
sibility can be limited in two ways; either by density controls that limit the
absolute number of dwellings or by fiscal controls that tend to make housing
more expensive. As we will see, not all exclusionary practices are illegal. In
almost every instance a countervailing public policy exists and the line between

permissible and impermissible practices becomes blurred.
Some of the more prevalent exlusionary practices are: 1) large floor
space requirements, 2) extensive building codes and site plan reviews,
3) timed development schemes, 4) building moratoriums, 5) large lot sizes,
6) multi-family and mobile home prohibitions and 7) bedroom restrictions.
While large floor area requirements have been a problem in many states, 2

Massachusetts has effectively limited this practice by withdrawing from local
communities the power to require floor areas of more than 768 square feet. 3
Likewise, building code provisions are now governed by a Uniform State Build-
Ing Code. 4 Timed developments are utilized only in communities that have sub-
stantial areas of undeveloped land and profess a need to phase in development

in order to coordinate it with municipal improvements. Although this concept
poses interesting questions, 5 there is little use for it within the study area.
Building moratoriums have also been turned down by the planning officials of

Exclusionary Practices and Housing 39

Hingham, Hull, Cohasset, and Scituate. We note in passing, however, that

the Massachusetts judicial standard appears to be one of reasonableness.

Two-year restraints, modeled after the Greenfield ordinance, have met with
judicial approval. 6
The last three tactics -- large lot zoning, mobile and multi-family homes

prohibition, and bedroom restrictions are worth a closer examination because

these practices have been implemented or are being considered by towns
within the study area and because they reveal the traditional approaches of

the judiciary to zoning.

A. Large Lot Zoning

The Supreme judicial Court has spoken only twice on the question of

how large a lot a community may require. In the 1942 case of Simon v.
Needham 7 the court sustained a one acre lot requirement as "not unreasonable"

a s applied to the petitioner's land. The Needham court warned, however,

that
A zoning by-law cannot be adopted for the purpose of
setting up a barrier against the influx of thrifty and
respectable citizens who desire to live there and
who are able and willing to erect homes upon lots
on which fair and reasonable restrictions have been
imposed nor for the purpose of protecting the large
estatates already located in the district. 8
The court then waited until 1964 to give any indication of what they
thought would not be "fair and reasonable restrictions." In Aronson v. Sharon 9
the court held an ordinance that required 100,000 square feet (2.3 acres) lots

invalid because it bore no relationship to the objects of zoning. Althoughthe

court reiterated its stand that many of the purposes of zoning could be fur-

thered by reasonable minimum area for lots, it acknowledge that there was a

point of "diminishing returns." The Sharon court shed little light on the

criteria for valid lot sizes except to say that validity must be determined in

"light of the present needs of the public and with a view to the probable
requirements from normal future development." 10
Based on these decisions almost every suburban community in the metro-

40 CONTROLLING GROWTH

politan area promptly zoned most of its vacant land for one acre lots. Some

bolder communities included two acre zones. The present zoning requirements

of the study area and the approximate percent of residential land in each
district are shown in Figures 2-1 and 2-2. The figures are further skewed if
we take into account the fact that the great majority of vacant parcels are in
the most restricted (one acre) districts. Comparing these figures to those in

Table 1-12, it is obvious that the new homes in the study area must, in most

cases, be built on lots substantially larger than those on which existing
homes are built. A salient question is whether the one acre lot restriction

approved in 1942 is responsive to the present and future needs of the public.

As we have indicated in Chapter 1, with the present cost of homes on large
lots running around $45,000 to $55,000, very few citizens of the Common-
wealth who make less than $20,000 a year can afford to move into the study

area.

On the other hand, was the court's invalidation of Sharon's even larger
lots merely an example of bungled litigation? If town counsel had denied any
greenbelt preservation motive and concentrated on specific amenities that flow
from giant lots (i.e. agriculture or on-site septic systems) could the ordinance

have been sustained?

A recent decision of an immediate appeals court in Massachusetts has
proposed some more concrete criteria. In Wilson v. Sherbom 11 the court held
that to justify a two acre district "the town must be able to bring forward some
advantages which are tangible and not nebulous." It then approved the'lot sizes
on the ground that Sherborn. was a rural town without public water supply or
sewage system and that large lots were necessary to support wells and septic
12
sys ems.
If this decision is upheld upon appeal to the Supreme judicial Court (SJC),
then the validity of the study area's large lots would appear assured. In fact,
the poor soil conditions in Cohasset and Hingham might permit even larger lot
requirements to be sustained on the grounds that larger leaching fields or
septic systems are necessary for the public health.

Key
0 NON RESIDENTIAL
IM 12,000 sq.ft. or less minimum lot sizes

20,000 sq. ft.
30,000 sq. ft. minimum lot sizes

40,000 sq, It.

source: local zoning maps

FIGURE 2-1: Residential Zoning of the Study Area

HINGHAM HULL COBASSET SCITUATE

Percent of Land Zoned
for 40,000 Square Feet
or more

0
1-24
25-49
50-74
75-100

Percent of Land Zoned
for 2 5, 0 0 0 Square Feet
or more, but less than
40,000 Square Feet

0 x
1-24
25-49 x
50-74
75-100

Percent of Land Zoned
for 25,000 Square Feet
or more

0 x
1-24
25-49 x
50-74 x
75-100

Source: Residential Zoning in the MAPC Region (MAPC 1972)

Figure 2-2: Residential Patterns

Exclusionary Practices and Housing 43

B. Mobile and Multi-Family Homes Prohibitions

For many who cannot afford to purchase a home, apartment living is a
way of life. For others who can finance a home but do not want the headaches

of maintaining real estate, condominiums are a logical alternative. In any

event, multi-family housing is on the upswing in America. Nationwide the num-
ber of suburban apartments rose 96 percent in the decade from 1960 to 1970. 13
The construction of mobile (and not so mobile) prefabricated homes is also

dramatically increasing. In 1969 mobile home shipments accounted for 28 per-

cent, of all new housing in America. In the Boston metropolitan area, however,
prefabricated and mobile units constituted a mere 0.5 percent of new homes. 14

The suburban restriction of both multi-family and mobile homes has been greatly

aided by the permissive rulings of the SJC.

As early as 1924 the Massachusetts court acknowledged that the power to
zone encompassed the power to prohibit apartments from residential districts
reserved for single-family dwellings. 15 Strong dicta from the Supreme Court's
16
decision in the famous Euclid case echoed similar sentiments two years later.
A half-century has passed and yet apartments still suffer from the stigma of
being considered "parasites" in residential districts. The recent decision of
the Supreme Court in Village of Belle Terre and Borass 17 certainly reinforces

this philosophy. The Belle Terre decision essentially held that the permissible
goals of zoning included promoting family values, and therefore communities
were justified in prohibiting groups of three or more unrelated individuals from
living in single family districts. While banishing unrelated groups from family
districts is not the same as banning multi-family housing throughout the juris-

diction, both proceed from the premise that "family" values can be fostered by

a controlled residential pattern and the Belle Terre decision appear to approve

both methods. The Massachusetts Supreme judicial Court has not passed on

either of these extremes. Most metropolitan Boston communities appear to

play it safe by avoiding the Belle Terre type ordinance and by allowing some
multi-family dwellings within the township (although they may relegate them to

undesirable zones or make new construction a matter of discretionary permit).

44 CONTROLLING GROWTH

The Massachusetts courts have also been very lenient in permitting com-
munities to ban mobile homes. An early case 18 gave approval to local ordin-
ances that prohibited the keeping of more than one trailer on any lot, or the
use of any such unit as living quarters, except in trailer parks duly estab-
lished under a state licensing scheme..19 The ostensible reason for this ruling

was that since health and safety problems arise more frequently in connection

with mobile homes, such homes should be confined to established trailer parks

where better protection can be provided.
In Manchester v. Phillips 20 the court went a step further and allowed

local communities to ban trailer parks as well as individual mobile homes.

The court concluded that a town could reasonably believe that mobile homes
could injure the investments of conventional home owners, hurt the tax values

or impede town development and that these interests were valid reasons for

zoning. The Massachusetts court has also taken a strong line on the not-so-

mobile prefabricated home. As one commentator suggests, the reasoning of

the court appeared to be "a trailer is a trailer is a trailer" even if it is perma-
nent, affixed to a foundation, and in conformity with local building codes. 21
Opportunities for mobile and multi-family home construction in the
study area are shown in Table 2-1. Multi-family dwellings are at least per-
missible in certain areas of each of the four towns, 22 but mobile homes are
subject to strict regulation. The proposed Hull ordinance would ban trailers,
the present Hull and Scituate ordinances make no provision for trailers (which
arguably is a ban), and the Hingham and Cohasset ordinances allow only their

temporary use.
Mobile home prohibitions are fairly common in the metropolitan area.
From the study area, the nearest municipality to the north where mobile homes
may be placed as a matter of right or permit is Cambridge. To the south, one
would have to travel as far as Foxboro to find such provisions. 23
At some point the decisions of the Massachusetts court should be recon-
sidered by planning officials. There is nothing inherently evil about mobile or
multi-family homes. Both types of housing embody tremendous leaps forward

Exclusionary Practices and Housing 45

over the stereotypical designs of the past, 24 and appear to compose the
strongest private elements of the low and moderate income home industry today.

TABLE 2-1

PROVISIONS FOR MOBILE HOMES AND MULTI-
FAMILY HOUSING IN THE STUDY AREA

TOWN MOBILE HOMES MULTI-FAMILY HOUSING

Hingham Temporary Use Permitted by Right in
Allowed: specific zones
Permanent occu-
pancy prohibited
Hull No Provision Permitted by Right in
specific zones
Cohasset Temporary Use Not Permitted
Allowed- Permanent
occupancy prohibited
Scituate No Provision Permitted by Discretion-
ary action in specific
zones

Source: Residential Zoning in the MAPC Region (Metropolitan Area Planning
Council 1972)

C. Bedroom Restrictions

The recent proposal to restrict the number of bedrooms in virtually all
new multi-family housing in Hull 25 provides us with an opportunity to apply
what we have previously described as the traditional judicial attitudes toward
zoning. The candor of Hull Planning Board is probably an exception; and we

would not be surprised to discover that bedroom restrictions are imposed by

many local zoning boards of appeals when granting discretionary permits. Yet,

our research has revealed very little litigation on bedroom restriction. In two
26
New Jersey cases, the restrictions were struck down by activist courts as

part of exclusionary schemes that included large lot zoning, over zoning indus-
trial uses, refusals to sewer, etc. The lack of litigation may reflect on obvious
infirmity, but it is more likely that developers are reluctant to risk the wrath

46 CONTROLLING GROWTH

of zoning boards by testing what they view as a minor constraint.

One purpose of the proposed Hull ordinance (which limits two bedroom
units to 50 percent of a development and the other half to single bedroom units
and studios) is clear: Hull is a town with a modest property tax base and it is

seeking to channel growth into the higher income developments whose residents
27
will not significantly add to municipal costs, particularly schools. Can this
be justified in terms of the purposes of zoning?
As a density control it would appear that bedroom restrictions would be
struck down as either arbitrary, 28 bearing no substantial relationship 29 to
density, or as not accomplishing, in any reasonable degree, its purpose. 30

It is obvious that density could be easily controlled by either limits on the
absolute number of bedrooms in a development (leaving the developer the
discretion to set a bedroom mix related to market conditions) or more simply by
restricting the total number of units, as is commonly done.
If town officials argue that the purpose of zoning fostered by bedroom
restrictions is property value preservation (or enchancement) and consequent
municipal fiscal benefits, they may draw some support from the previous large
lot and mobile home cases but the path is treacherous. 31 The court might

conclude that the regulation is unduly burdensome to promote such an inciden-
tal improvement in general welfare (tax rates). There are also evidentiary

problems: the property value of unrestricted apartment buildings may be even
higher than developments with limited numbers of bedrooms because a larger
rental market is available. In that case the issue boils down to the legality of

excluding large families. Only the flimsiest support for this proposition can

be found in the Supreme Court's approval of the "promotion of single family
values" as a purpose of zoning in Village of Belle Terre v. Boras . 32 A sub-

sequent decision in the New York state courts has shown a restrictive rather
than an expansive reading of Belle Terre relegating it to its particular facts ?3

In all likelihood such a purpose would be struck down as contrary to the
general welfare or in violation of the federally insured rights to procreate 34
and travel. 35

Affirmative Duties 47

AFFIRMATIVE DUTIES

In this next section we examine a question that is generating considerable

judicial and legislative debate: should local communities, as trustees of the

state zoning power, have an affirmative duty to provide a variety of housing

that is designed to meet local and regional needs? We will first look at the
'Federal role, then the approach taken by New Jersey's activist court and
finally the mechanics and effectiveness of the Massachusetts legislation
(commonly known as the anti-snob zoning law).

A. The Federal Role

The birth of zoning is usually attributed to the Supreme Court's decision in
the Euclid case. 36 Little is said or remembered about the district court's

decision which struck down the village ordinance only to be overruled by the

High Court. One excerpt from district court judge Westenhaver's opinion is

particularly appropriate:

The plain truth is that the true object of the ordinance is
to place all the property ... in a strait jacket. The purpose
is. . . to regulate the mode of living... to classify the
population and segregate them according to their income
or their situation in life. The true reason why some persons
live in mansions and others in a shack, why some live in a
single family dwelling and others in a double family dwell-
ing, why some live in a two family dwelling and others in
apartments, why some live in a well-kept apartment and
others in a tenament is primarily economic. It is a matter
of income and wealth... it is sufficient to say it may not 37
be done... under the guise of exercising the police power.

On appeal the Supreme Court refused to accept such a detailed analysis

of the merits. It perceived the judicial role in such a frontal attack as

merely an inquiry into the rationality of the measure. If a single valid purpose

of government could reasonably be said to be furthered by the ordinance, then

it must be sustained. The Court then found sufficient justification for the

segregation of residential, business and industrial buildings in terms of fire

protection, safety, traffic control, mental health, residential amenities, etc.

48 CONTROLLING GROWTH

It left, for another day, judge Westenhaver's criticism.

Since the Euclid case, the Supreme Court has all but abandoned zoning.
In the past 50 years only two cases have been decided on their merits. 38 The

lower federal courts have also shown great reluctance to rule on the question
of exclusionary practices 39 except in the context of racial discrimination. 40

Most recently the Supreme Court has handed down a stiff set of rules governing

standing to challenge exclusionary ordinances.
In Warth v. Sedlin, 41 a bitterly divided Supreme Court ruled that a large

group of petitioners each lacked standing to attack the land-use policies of
Penfield, New York, an affluent suburb of Rochester. The petitioners (among

whom were several Rochester area low and moderate income residents, several

taxpayers from the city of Rochester, a metropolitan community action group,

the Rochester Home Builders Association and the Monroe County Housing
Council) sought revision of Penfield's zoning ordinance, which allocated 98

percent of the town's vacant land to single-family detached housing and made
the building of low or moderate income housing impossible due to various

density and infrastructural requirements. They further alleged that:

Penfield's town, zoning and planning boards had acted in
an arbitrary and discriminatory manner: they had delayed
action on proposals for low and moderate cost housing for
inordinate periods of time; denied such proposals for
arbitrary and insubstantial reasons; refused to grant neces-
sary variances and permits, or to allow tax abatements;
failed to provide necessary supportive services ... and
had amended the ordinance to make approval of such
projects virtually impossible.42

Faced with these allegations, the Court, nevertheless, felt incapable of

acting. The complaints of the low income petitioners were dismissed because
they failed to show that 'absent [Penfield's] restrictive zoning practices,

there was a substantial probability that they would have been able to purchase

or lease in Penfield and that if the Court affords the relief requested, the
assorted inability of the petitioners will be removed." 43

The claim of the Rochester taxpayers "that Penfield's zoning resulted in

Affirmative Duties 49

greater taxes within the city to pay for housing and other essential services to
the poor" was dismissed for lack of a sufficient "line of causation." 44 The

argument of the community action group that 9 percent of its members who re-

side in Penfield were harmed by the exclusion of low and moderate income resi-

dents was rejected as an inappropriate "attempt to raise putative rights of
third parties." 4S Finally the complaints of the builders associations were re-

jected because there was no viable development project existing or contem-

plated at the time. Thus the complaint "failed to show the existence of any

injury to its members of sufficient immediacy and ripeness to warrant judicial
intervention. "'16

The 5-4 decision was not without vigorous dissent. justices Brennan,

White and Marshall objected that "the very success of the alleged unconstitu-
tional scheme is turned into a barrier to a lawsuit seeking its invalidation." 47

As they saw it, the more successful a town was in excluding the poor and

preventing low income housing construction, the more likely it would be to im-

munize itself from suit because the complaints could not meet the standing re-

quirements. justice Douglas, as the fourth dissenter, saw the allegations as
an "un-American community model" 48 and also believed the court should have

reached the merits of their arguments.

Whether or not the dissenter's allegations that the majority opinion re-

flects a basic hostility to the merits of the Penfield case are true, one thing

is clear: the majority of the Court is extremely reluctant to plunge into the

complex sociological and political problems of economic segregation. If affir-

mative duties are to be imposed upon communities it is very unlikely it will

come from the Federal judiciary.

B. The New Jersey Approach

In contrast to the Federal judiciary is the New Jersey court system which
has been particularly responsive to the housing needs of low and moderate
income citizens. This section focuses on the 1975 decision of Southern
Burlington Co NAACP v. Township of Mt. Laurel 49 acclaimed by at least one

50 CONTROLLING GROWTH

commentator as the most important case since Euclid. so

In the late sixties the Camden Coalition began its attack on the pattern of

economic exclusion that it perceived was strangling that New Jersey city.
After a suit and consent decree 51 which enlisted the aid of the city itself, the
strengthened coalition sought a test site for its case. Mt. Laurel was chosen

as a typical suburban community, with a housing density of approximately
three units per acre, 30 percent of its vacant land zoned for non-existent

industry, bedroom restrictions in its rnulti-family zone, failure to address its

own substandard housing, and well-endowed with federal and state subsidies.

Responding to the petitioner's multi-facted claims of exclusion, the trial

court invalidated the Mt. Laurel zoning scheme in toto.

When appealed to the New Jersey High Court, justice Hall sustained the
lower court's opinion and, in an eloquent decision, found that the state con-

stitution imposed upon all developing municipalities a duty to make realisti-
cally possible an appropriate variety and choice of housing to the extent of

communities' fair share of the present and prospective regional needs. This

duty was said to stem from the state's constitutional mandate to provide forthe
general welfare, and in this case "general" meant regional not local welfare. 52

Thus, when a regulation has substantial external impact, the welfare of the

citizens beyond the town limits cannot be disregarded.

justice Hall also used a number of other innovative techniques in dealing

with what he recognized as an extremely polycentric problem. Unlike the

federal court in Warth, he granted standing to non-residents even though the

complaint of residents would have been sufficient to sustain his action. Since

the decision was grounded in the "general welfare" it follows logically that

non-residents must be allowed standing. justice Hall recognized at least
three types of non-residents to whom the courthouse doors were open: 1) those

living in "central city substandard housing ... who desired to secure decent
housing", 2) former residents who were "forced to move elsewhere" and
3) organizations representing "housing and other needs of racial minorities.',53

A second innovation was a rule of evidence that comes into play whenever

Affirmative Duties 51

exclusionary practices are shown. If petitioners make out a prima facie show-
ing of municipal failing to provide adequate alternatives for low and moderate
income housing, then the normal presumption of zoning validity is lifted and

the burden shifts to the community to show its reasons why the general welfare

is furthered by the ordinance. In Mt. Laurel the town was then forced to jus-
tify its action and failed. The town's argument that it may zone for fiscal
prosperity fell short of the "reasonable and comprehensive plan for general

welfare" standard. Likewise the alleged necessity of on-site septic systems
was countered by the court's observation that the land was flat and capable of
se.wering by dedication requirements or special assessment. 54

One potential weakness in the court's decision Is in justice Hall's choice

of remedy. Although he sustained the trial court's determination that the

ordinance was invalid, he did not declare it void. To do so would leave the

town powerless against "voracious land speculators," he reasoned. Further-

more, he left it up to Mt. Laurel to correct its ordinance and bring its la@,-,7s

into line with the opinion and affirmative duties. justice Pashman writing in a
concurring opinion was not satisfied with this approach. After a half decade
of litigation the plantiff's victory, in Pashman's eyes, was pyrrhic -- all they
had won was an opportunity to renew litigation if Mt. Laurel failed to act.
Pashman would have sought a bolder fashioning of remedies such as a judicial

revision of the ordinance.

The Mt. Laurel decision will certainly be a landmark but many unanswered

questions remain- what amount of evidence will be sufficient to make out a

prima facie case of exclusion? What formula should be used for determining
a community's "fair share" of present and prospective regional needs? 55
Beyond this, what is a region? 56 Moreover, since the Mt. Laurel decision

applies to all similarly situated developing communities, how will the court
deal with municipal foot-dragging ? Finally, is the judiciary an appropriate

institution to deal with such complex, long-range problems?

52 CONTROLLING GROWTH

0. The Massachusetts Approach

Is the legislature a more appropriate vehicle for dealing with economic
segregation? An examination of the much heralded 57 Massachusetts Zoning
Appeal Law 58 reveals some answers.
This statutory appeal process, passed as Chapter 774 of the Acts of 1969,
attempts to provide a means by which a qualified developer can construct low
and moderate income housing in a community that has restricted such develop-

ment. The statute also attempts to be sensitive to the needs and concerns of

the community and reflects a desire for state review of certain land use

decisions while maintaining the traditional local role in the decision-making

process. In the 1973 case of Board of Appeals of Hanover v. Housing Appeals
Committee in the Dept. of Community Affairs, 59 the Massachusetts Supreme

fudicial Court held that

The legislature's adoption in the nature of the Low and
Moderate Income Housing Act of an administrative
mechanism designed to supersede, when necessary,
local restrictive requirements and regulations, includ-
ing zoning bylaws and ordinances in order to promote
construction of low and moderate income housing in
cities and towns is a constitutionally valid exercise
of the legislature's zoning power. 60
and thus silenced any doubts 61 as to the legislature's power to deal with

exclusionary practices.
In the specific instance being reviewed, the Supreme judicial Court upheld
the right to grant a comprehensive permit for construction of low and moderate
income housing to a qualified corporation by the local zoning board of appeals,
despite the fact that such construction was not permitted under local zoning

ordinance. Even more important was the holding that if the local board of
appeals denied the comprehensive permit, the housing appeals committee of the
Department of Community Affairs had the authority to reverse the decision of

the local board and grant the permit.
Moreover, the Court gave a broad sanction to de novo review 62 by the

Affirmative Duties 53

Housing Appeals Committee63 and accepted the committee's narrow delineation

of the permissible grounds on which a local zoning board could refuse to issue

the comprehensive permit. The Committee may review both comprehensive

permit denials and permits granted subject to uneconomic conditions to deter-

mine whether the local action was "reasonable and consistent with local
needs. "64 There are two ways for a community to satisfy this standard. Sec-

tion 20 of the Act exempts from its operation those communities that have low
or moderate income housing which exceeds certain quotas pertaining to land
area and units of housing devoted to such housing. 65 Therefore, every com-

munity has a ceiling on the number of units it is required to allow. These cri-

teria are currently met by the City of Boston and only a few other communities
in the Commonwealth. (None of the communities within the study area meet
the statutory minimum.)

If a community fails to satisfy this exemption, it must then deter-

mine local needs by a second test. The statute directs the committee and the

local board to balance the regional need for low and moderate income housing

and the local population of low income persons against certain planning objec-
tives. These objectives include the protection of health and safety, the pro-
motion of better site and building design in relation to the surroundings, and

the preservation of open space. Even these planning objectives have been

essentially limited by the Court to the substantial issues of public safety and

site and building design. Most denials of comprehensive permits by local

boards have been overturned by the Housing Appeals Committee.

The recent case of the Planning Office for Urban Affairs v. Scituate Board
of ARpeals 66 is an excellent example of the application of Chapter 774 and the
conflicting interests represented by the balancing process. In July 1973, the
Scituate Board of Appeals denied an application under Chapter 774 by the Plan-

ning Office for Urban Affairs of the Archdiocese of Boston for a comprehensive
permit to construct forty units of low income, town-house type cooperative
housing. The building site was a five acre plot at the southeasterly intersec-
tion of Stockbridge Road and Meetinghouse Lane in Scituate. The project was to

54 CONTROLLING GROWTH

receive subsidy financing from the Massachusetts Housing Finance Agency.
When the case was appealed to the Department of Community Affair's Housing
Appeals Committee, the central issue was whether the denial of the application
by the Board was consistent with local needs as that phrase is defined in
Section 20 of Chapter 774. It was conceded that Scituate failed to satisfy any
of the mathematical criteria necessary for an exemption.
The case, therefore, was reduced to a balancing test of local considera-
tions such as public health (need for sewers), safety (traffic), aesthetic de-
sign and open space to be weighed against regional need for this housing, and
the number of low income persons in Scituate.
The planning office presented both statistical and testimonial evidence on

the number of poor people in Scituate and the regional need for low income
housing. The main conflict involved various definitions of region since the
term was not sharply defined in the statute. Statistical evidence kept by the
Department of Community Affairs, the South Shore Community Action Council,

and the Metropolitan Area Planning Council was presented. The recent

Scituate Town Plan and the Downe Study of multi-family housing in Scituate
also contained evidence on regional needs. After reviewing this evidence, the

Housing Appeals Committee concluded that "there is a regional need for low

income housing together with a substantial number of low income persons in

Scituate. " The Planning Office for Urban Affairs having satisfied their side of

the balancing test, it was necessary for the Sctituate Board of Appeals to show
that local health, safety, and planning considerations out-weighed the extent
of the housing need.
The proposed project was attacked for its detrimental impact on public

health because of an inadequate assurance of proper sewage disposal and a

lack of adequate drainage facilities. The Committee, after considering much

evidence from both sides, concluded that the proposed sewage disposal and
drainage systems presented no health hazards. Similar charges of danger from

increased traffic created by the proposed development were also rejected by
the committee which concluded that "no health or safety hazards exist, or will

Affirmative Duties 55

be created by the proposed construction, of gravity sufficient to outweigh the

regional housing need.

The strongest attack by the board on the proposal came in the area of site
and building design. The committee was favorably impressed by the building
design and saw the town-house type of building as the best compromise be-
tween single family detached houses and garden apartments. The test in the
area of design must consider the adequacy of individual units to accommodate

families and the compatibility of the design with the surrounding area. Much
evidence was introduced by the Planning Office to support the site design and

location. Expert witnesses and the recommendations of the Downe Report

were employed.

The Board's argument was that the neighborhood was an historic area, and
that the proposed development would impair the historical significance of the
area. It was argued that the visual quality of the area would be adversely
affected, and that the proposal would aggravate security problems in protecting
historic sites. These aesthetic arguments were rebutted by the Planning Office
and reported by the committee. The committee conceded that there would be

increased security problems, and it proposed a remedy of increased counter-

measures by the town. The committee failed to find historical concerns which
would outweigh the perceived need for the proposed housing.
Obviously Chapter 774 has had substantial impact on Scituate, Hanover,

and several other communities. The facts of these cases, however, point out

several weaknesses in the Act. The purpose of Chapter 774 was primarily to

deal with economic problems of low and moderate income housing. These

problems still exist. The primary concern of site acquisition costs is not
really solved by the Act and continues to be a major obstacle for the developer.

The time delay involved in cases such as the Scituate case, which has taken

over two years, will make it financially impossible for many developers to
build. Very few developers can afford to tie up capital and investment for such
a long time. In fact, only 100 units of housing have been built under Chapter
774 in its six years of operation. 67 As one commentator puts it, "few devel-

56 CONTROLLING GROWTH

opers are willing to jump through all the administrative and judicial hoops" 68

for the chance to build low income housing. The number of potential developers

is also limited by the requirement that the developer be a non-profit or limited
dividend corporation. At the present time it appears that the anti-snob zoning
act will not have the overall effect hoped for by its sponsors. At best it
reflects a moral commitment on the part of the Commonwealth and a source of

encouragement for local communities to provide more low and moderate income

housing.

PROPOSALS FOR CHANGE

Given the strong evidence that the Massachusetts zoning appeals law has

not solved the problem of exclusionary practices, the appropriate question is

"Why not?" To answer that question it is necessary to know what the causes

of exclusion are. While class and racial attitudes may have some bearing,

critics are almost unanimous in singling out the property tax system, at least

in Massachusetts, as the predominant factor.
Recent studies 69 have revealed that the Commonwealth has the highest

property tax rates in the nation. The recent decisions of the Supreme judicial
CoLrt requiring 100 percent valuation 70 will probably exacerbate the situation
as the tax burden shifts from industry to homes. 71 Present tax rates and
assessments for the study area are shown In Table 2-2. Almost all of the
property tax goes to local governments which provide community services. Of
the services provided, school costs are, by far, the largest municipal expendi-
ture. To ease property taxes, communities engage in vicious competition for
high tax ratable enterprises such as office parks, light industries and regional
shopping centers. When this is not possible, they seek to attract high income
residents who will live in expensive homes. Any way you slice it, local plan-
ning in Massachusetts revolves around the goal of creating a substantial tax

base.

As a result socially divisive and uneconomic exclusionary practices
develop. The heavy reliance on property taxes for municipal services encour-

Proposals for Change 57

TABLE 2-2

TAX RATES AND ASSESSMENTS

Town 1976 Tax Rate Assessment 1976 Full Value
per $1,000 Ratio Tax Rate Per
Assessed Value $1,000 Value

Hingham 66.00 88% 58.08

Hull 111.00 88 91.68

Cohasset 42.75 97 41.47

Scituate 74.40 90 66.96

Source: Mass. Dept. of Corporations & Taxation, Bureau of Local Taxation

ages the affluent to migrate to suburbs where they perceive a better return on

their tax dollar. For those who cannot afford to move, there is a frustration of

upward mobility. As the employers who provide better paying jobs also move
out to the suburbs, 72 the poor are left behind. The potential for economic seg-
regation is already being felt in many central cities nationwide as the fiscal
and social costs of dealing with conglomerated poverty soar, 73
The ills effects of economic exclusion , however, are not confined to the

inner cities. The distortion of the private market system has the side effect of

reducing availability and raising prices of housing in general. More importantly,

it has long term effects on the fabric of the community itself.
As the children grow up, or young married couples settle down, they find

it impossible to remain in their hometown because there is no available housing
they can afford, or that will fit their needs. Parents in the suburbs, whose

children have grown up and moved away, have similar problems. They find

themselves with large homes they no longer need, and taxes which constantly
increase. The option of remaining in their town, but in a less expensive, more

suitable dwelling is not available because most of the housing continues to be
large, single-family, detached units. 74

It appears that any effective solution to exclusionary practices must

58 CONTROLLING GROWTH

sever (or at least loosen) the tie between the local property tax and municipal

services. To do this, of course, means generating new statewide revenue
sources and redistributing the funds to cities and town according to their needs.
Unfortunately there are few untapped tax sources in Massachusetts. In addi-
tion to having the highest property tax rate, the Commonwealth ranks sixth
highest in income taxation. 75 Nevertheless, two methods of easing the local

property taxation problem have recently been proposed by the Research Depart-
ment of the Federal Reserve Bank of Boston. 76

Under the simpler of the two proposals, new revenues would be generated
from increases in the sales tax (which is comparatively low and depleted by
exemptions) and the gasoline tax. The new funds would be returned to local
governments to help ease the property tax burden. 77 Proponents of this pro-
posal predict these measures could lower local property taxes from 5 to 16 per-

cent. On the other hand, opponents of this local aid suggest taxes will remain

at nearly the same level and local government will find new ways to spend the

money.
A more comprehensive proposal of the Research Department would involve
a complete reform of the school financing system. Under their second propo-
sal, in addition to raising the sales and gasoline taxes, higher income and
state-wide property taxes would be pooled to pay about 90 percent of the cost
of public education and reimburse communities for 50 percent of state mandated

local property tax abatements. The effect of this proposal on the study area is
difficult to estimate, 78 but some general observations can be made. There

will be an obvious redistributive effect: the taxes from wealthy communities
will be going to support better schools in poorer communities. 79 The proposal

would also be a great help to communities that have previously been burdened

by tax-exempt enterprises such as educational institutions and state parks.

Finally the proposal would remove much of the impetus for fiscal zoning by

severing the tie between local property wealth and school spending.

Even discounting property tax reform, there are strong reasons why a

community should reconsider its zoning policies. One common misconception

Proposals for Change 59

is that apartments are more costly in terms of municipal services than single-

family detached homes. This misconception can be illustrated by contrasting

the revenues and social costs of the two types of housing. A comparison of
the primary cost, educational services, for garden apartments (8 units per
acre) and large lot (1 acre) homes is presented in Table 1-3. The method of

computing revenues from the large lot scheme was simply to assume an aver-

age market value of $55,000 and an estimated tax rate of $60 per thousand of

assessed 100 percent valuation. Multiplying these two figures together and

again by 10 residences yields 30 thousand tax dollars. In determining the

cost of educational services, it is typical to assume that the average demand

on the local system will be two children from each single-family, large lot

home. Using the target figure of the previously discussed school reform pro-
posal of $1,000 per pupil, we arrived at a municipal cost of $20,000 leaving a
balance of $10,000 to pay for all other municipal services.

The method for computing the tax revenues generated by apartments was

somewhat different. Assuming apartments which rent for $250 per month, or
$3, 000 per year, the annual tax revenue per unit can be computed by multiply-
ing a factor of 20 percent, and multiplying by the number of apartments for the

hypothetical 10 acre site, which is 80. This results in an annual tax revenue
of $48,000. We then adjusted this figure downward 10 percent to reflect a 10

percent vacancy rate, producing a tax yield of $43,200. In determining the

municipal education costs for the garden apartments the average number of

children for this type of housing is not two children per unit but 0. 2 per
unit, 80 and the annual cost to the town (0.2) x (80) x (1,000) = $16,000. As

Table 2-4 indicates, higher density developments can produce a much larger

residual amount with which to meet the costs of other municipal services.

Other studies have also shown that by clustering development into apartments,

rowhouses or townhouses, a community can achieve lower sewer connection,
road construction and road maintenance costs. 81 Another consideration a town

might want to look at when deciding what type of housing it needs and where

to put it, is access to transportation facilities. Parcels of undeveloped land

TABLE 2-3
COST COMPARISONS FOR SINGLE-FAMILY DETACHED HOMES VERSUS
MULTI-FAMILY HOUSING

Average No. No. of Units Average Educational Total Educational
TYPE of Children in 10 acre Cost per Child Cost
per Unit Development

Garden
Apts -- 0.2 80 $1,000 $16,000
8 Units
Per Acre

Large Lot
Home -- 2.0 10 1,000 20,000
1 Unit
Per Acre

TABLE 2-4

COMPARISON OF TAX REVENUES GENERATED COSTS AND REVENUES
OF SINGLE- AND MULTI-FAMILY HOUSING

x "o 4'
C@o 4-j
4J
E-1 " (a -
C:

4) 4J -4 Q)
0 41
0) C: (0 a) H 0) 2
(a 4-J (a (0 (a ra 0 C:
4J
a) CD 41 ra
0 C, 4J L. CD x +- >
:5 (a 0 a)
a) rA _4 C:
W. w 0 - E-1 E- W

Garden
Apts -- $250 $3,000 $600 80 $48,000
8 Units
Per Acre

Large Lot
Home $50,000 $60 $3,000 10 30,000
1 Unit
Per Acre

Proposals for Change 61

which lie on existing bus routes, for example, should be seriously considered

as possible sites for more intensive development. This statement is based On

the reasoning that it is more efficient and economical in the long run for

people to travel by mass transit rather than by personal automobiles, Also

the decision to develop a parcel more intensively can have a significant effect

on the decision to initiate new and more convenient mass transportation facili-

ties. That is, if there are more people along a possible mass-transportation

route, the economic feasibility of initiating service increases tremendously

because potential revenue would be higher. Moreover, as the next sections
more fully explain, designating sites for more intensive development not only

eases the the problems of exclusionary zoning, but also, in the long run,

helps preserve open space.

Finally, we note justice Hall's observation in Mt. Laurel: "Courts do not
build housing nor do municipalities." Will reforming the property tax system
and relaxing costly restrictions provide enough stimulus to the private housing
market to build inexpensive homes? Landowners, whose land is rezoned to
allow higher densities will almost invariably attempt to realize greater sale
prices. The question will become increasingly important if other state courts
follow New Jersey's lead and impose constitutional affirmative duties. As

one commentator suggests:

Courts may be able to require integration of schools
by redistricting or busing. But they approach the
limits of their powers when they attempt to force the
construction of facilities, the expenditure of public
funds and the floating of public bond issues. At that
point, the burden shifts to the legislature, and
ultimately to the voters. 82

Does Massachusetts need to impose affirmative duties on localities to
establish public housing authorities and build housing for the state's poorer
citizens? Should a public corporation similar to New York's Urban Develop-
ment Corporation be established to aggressively pursue a building program
across the state? The answers to these questions are unfortunately beyond

62 CONTROLLING GROWTH

the scope of this paper. One thing, however, is clear: the wait-and-see

attitude that has prevailed in Massachusetts since the Zoning Appeal Law can-
not last forever. It is nearly (or perhaps past) the time to assess our progress

in providing decent housing for all our citizens and to decide what further

steps are in order.

THE CONCERN FOR CONSERVATION

In this section and the next we will examine another type of growth con-

trol which for want of a better term might be called "open space" laws.
Although the question of what land should be built upon and what should not is
nearly as old as civilization, 83 the concern for protecting what is perceived as

the necessary environment has taken on new meaning in recent years.

The past decade has witnessed a progression from simple flood preven-

tion measures to more ambitious legislation and proposals to protect wetlands,

scenic sites, aquifer recharge areas and agricultural lands. Most of these

measures have met with judicial hostility. In this section some of the more

common Massachusetts "open space" laws are examined.

A . The Wetlands Act 84

Under this act no person may interfere with the natural state of a wide
variety of lands bordering on coastal or inland waters 85 without filing an in-
tent to alter notice with state and local officials. After a public hearing the
local body (local conservation commission, or, if none, board of selectmen
or mayor) may impose such conditions as are necessary to protect the enumer-
ated environmental interests. 86 A large class of parties have standing an
87
appeal to the Commissioner of Natural Resources for a superseding order.

Persons aggrieved by the state may petition the Superior Court.

The amendments that consolidated the wetlands acts into the present

provision have been lauded as offering "a real opportunity for cooperation of
local and state governments in the preservation of open spaces and encourage-
ment of rational land development." 88 Prior to the 1972 amendment local con-

Concern for Conservation 63

servation commissions had only an advisory role whereas the new law gives

them primary responsibility for conducting hearings and evaluating proposals.
The benefits of developing a local conservation expertise are obvious (knowl-
edge or community needs, expertise, and capacity for on-going supervision) ,

and it would appear that this strategy has worked well in the towns of Hingham,

Hull, Cohasset and Scituate. A major unanswered question is how stringent

an order of conditions may be and this is discussed in the final section.
B. The Scenic Rivers Act 89

Under this act the Commissioner of Natural Resources may regulate or

prohibit alteration along all rivers or streams of the Commonwealth. The

Commissioner's authority extends to the contiguous land up to 100 yards on

either side of the natural stream bed. The purposes of the regulation are not
limited to the traditional police power objectives (such as safety, protection
of wildlife and fisheries) but also allow the Commissioner to prohibit develp-

ment to protect the "irreplaceable wild, scenic and recreational resources."

Landowners who have been restricted may petition superior court but to date no

case has been brought to test the validity of the regulation.

C. Municipal Floodplain Zoning

Under the Massachusetts Zoning Enabling Act, a community "may provide

that lands deemed subject to seasonal or periodic flooding shall not be used

for residence or other purposes in such a manner as to endanger the health and
safety of the occupants thereof. "90

A major impetus to this kind of zoning has been the Federal Flood Insur-
ance Program. 91 Using the carrot and stick approach, funds have been avail-

able to plan floodplain management programs and at the same time heavy pres-

sure has been used to convince communities of flood hazards. The act makes

participation in the Flood Insurance Program mandatory as a condition for any
federally related financial assistance (i.e. , VA, FHA, and SBA loans) to commu-

nities or individuals wishing to acquire or refinance property or build within
towns designated as flood hazard areas. All four towns in the study area are

64 CONTROLLING GROWTH

designated as flood hazard areas and can expect their already complex regula-

tions to undergo substantial revisions to meet federal standards. For example,
local floodplains are usually delineated by simple elevations from sea or river

level. Under the federal requirements the zone must correspond to floor stage

contours which vary upstream and downstream. Similarly, the federal standards
demand strict policies aimed at abolishing nonconforming uses (such as all

structures in Humarock) .

Hingham, Cohasset and Scituate each have municipal floodplain and

watershed protection zones which require special permits in order to build any
new structure, patterned after the H.U.D. floodplain building regulations.

Hull is awaiting final mapping of hazardous areas before enacting such a

measure. In the model H.U.D. legislation the criteria for the granting of a

special permit is the finding that the occupants will incur or cause no health

or safety hazard during times of flood. Various nonconforming uses provisions

also come into play whereby owners of homes and businesses built prior to the
passage of the floodplain zoning regulation are prohibited from enlarging the
structures, or reestablishing abandoned uses.

D. The Home Rule Amendment

In 1964 the town meeting of Cohasset passed an ordinance similar to the
present wetland act (the state coastal protection proposal was at the time
bogged down in committee) and sent their measure to the attorney general for

his certification. The attorney general declared the Cohasset ordinance void

as beyond the powers granted in the Massachusetts Zoning Enabling Act. This

was the state of affairs prior to the Home Rule Amendment: a municipality could
only exercise those powers expressly conferred, or essential to the accomplish-
ment of the declared purposes of the municipality. 92

Partially in response to this narrow judicial construction of Cohasset's

power, the voters of the Commonwealth passed amendment 89, commonly

known as the Home Rule Amendment, in 19 66. It provides that:

It is the intention of the article to reaffirm the customary

Concern for Conservation 65

and traditional liberties of the people with respect
to the conduct of their local government... 93

Any city or town may by the adoption, amend-
ment or repeal of local ordinances or by-laws,
excercise any power or function which the general
court has power to confer upon it, which is not
inconsistent with the constitution or laws enacted
by the general court in conformity with the power
reserved to the general court by section eight and
which is not denied, either expressly or by clear
implication, to the city or town by its charter ... 94
Thus, with exception of six reserved state powers .,95 the voters of Massachu-
setts chose a self-executing form of local government, where cities and towns
were given wide latitude to try out innovative programs.
The full effect of the home rule amendment on the ability of local govern-
ments to regulate land use is still unknown because of the lack of litigation,
but two cases have shed some light on this subject. In Bloom v. Worcester 96
the Supreme judicial Court adopted a test for judging local enactments: in the
absence of a specific statute the issue was whether the local ordinance or
by-law frustrates the fulfillment of the legislative purpose of any arguably
relevant general law. 97 In the Hanover case, 98 sustaining the Massachusetts

Zoning Appeals law, the Court recognized that zoning was an independent

municipal power that could exist irrespective of the state enabling act. The

Court, however, intimated no opinion as to how much local prerogative was

preempted by the state "enabling" law. Presumably the same test as in Bloom

applies: local land use regulations that do not try to circumvent the procedural
safeguards or subvert the substantive goals of the state zoning and planning

laws should be sustained.

Pursuant to the Home Rule Amendment Cohasset has adopted a special
by-law entitled "Protection of Natural Features," which requires a special per-
mit before anyone may obstruct, dredge, excavate, or fill any of the town's
marshes, wetlands, streams, tidal rivers, brooks, or ponds. Similarly, Scituate

has adopted a Saltmarsh and Tideland Conservation District which allows only

66 CONTROLLING GROWTH

for noncommercial docks, catwalks, wharves, floats, public parking,
recreation or water supply uses as a right. Uses requiring a permit from the
Board of Appeals include all permitted uses of the zone that existed before this
district was adopted, or for filling, draining, dredging or excavation. The
permit will not be granted if the proposed use would adversely affect the
natural character of the site.

THE LIMITS OF REGULATION

In this section legal/constitutional limitations are examined first in the
context of the power to regulate (or prohibit) development and then as applied
to the elimination of nonconforming uses. Finally, a few of the recent inno-
vations aimed at the preservation of open space in other ways are examined.

A. The Regula tio n/Ta king Line

The requirement of "Just compensation" when government expropriates
private property was a uniquely American contribution to 18th century jurispru-
dence. The principal, which first appeared in the Vermont and Massachusetts

constitution of 1777 and 1780 and is firmly embedded in the Fifth Amendment of
the Constitution, 99 was probably a reaction to the arbitrary military seizures
during the Revolutionary War and as an added safeguard to landed aristocracy

who were just as fearful of absolute democracy as they were of absolute mon-
archy. 100 Early decisions under the state and federal taking clauses revealed

no clear concensus as to the scope of protection. Undeveloped land was often

considered worthless and compensation usually granted only for developed
parcels. Furthermore, payments were considered necessary only when title (or
a recognized interest such as a highway easement) passed to the govern-
ment. 101

On the federal level two famous cases stand in juxtaposition. The most
powerful case for the regulation of property being Mugler v. Kansas, 102 where
a state law prohibiting the manufacture and sale of intoxicating liquors was

upheld by the Supreme Court although it eliminated the worth of Mugler's

Limits of Regulation 67

Brewery. fustice Harlan strongly affirmed the validity of the police power:
"A prohibition simply upon the use of property for purposes that are declared,
by valid legislation, to be injurious to the health, morals or safety of the
community, cannot in any sense be deemed a taking or an appropriation of
property. . ." 103 Shortly thereafter the notion arose that regulation should
not be allowed if it deals too harshly with an individual's ability to profit from
his property. The appointment of justice Holmes and others who shared this
view with the Court insured that a second interpretation would be articulated.
In Pennsylvania Coal Co. v. Mahon 104 the Court invalidated a Pennsylvania

law prohibiting mine operations beneath residential areas because the statute

effectively destroyed the coal companies' mineral rights. In the words of

justice Holmes "the general rule at least is, that while property may be

regulated to a certain extent, if regulation goes too far it will be recognized
as taking. . . (A) s we already have said, this is a matter of degree." 105

It should be noted that while the Mugler and Pennsylvania Coal Co.

cases differ on the issue of intensity of regulation, both assume an external-

ities analysis. That is to say, government may regulate land in the interest

of preventing what it perceives as harmful externalities of the landowner's
use. Under.Mugler, if a harmful externality is perceived, the test is satisfied
and the government may prevent the exercise of property rights which give

rise to this harmful externality. Under Pennsylvania Coal a harmful externality

alone is not enough. The test is twofold: even if the Court perceives a harm-

ful externality to the property owner's activities, the Court must further inquire
as to whether the governmental prohibition "goes too far" in limiting the

property owner's rights. A more radical theory of government suggests that
the regulatory power may be exercised not only to stop harmful occurancesbut
also to require actions that enhance the social, economic, or physical environ-
ment. 106

This "General Welfare" analysis is apparent in the Scenic Rivers Act

which, as previously mentioned, gives DNR the power to prohibit alteration

of river banks in the interest of protecting the wild, scenic, and recreational

68 CONTROLLING GROWTH

resources. A third intermediate theory of government is the "entrepreneur/
arbitrator" analysis which assumes that government actions that compete with
the private market require compensation, but when government uses its rule
making power to settle disputes between landowners no compensation is
107
necessary.
Until recently the dominant judicial mode of analysis of taking issues
has been the Pennsylvania Coal Co. test. First, the courts would look for

externalities. Was the harm in the property owner's conduct or was this a
case of the government appropriating a benefit? (If the regulation required
physical invasion of the landowner's property or other action that offended the

traditional notions of exclusive use and possession, then the courts would
almost invariably define this as a "benefit. "

Second, if it was satisfied that the government was not appropriating a

benefit, the court would examine the "diminution of value" to insure that the

regulation did not go too far as the Pennsylvania Coal Co. case mandated.

Many modem commentators object to both parts of this traditional test for
"takings." The harm/benefit classification of the first prong is, in the words

of one commentator, "not a test at all, but rather a statement of psychological
reaction. "108 Even more strenuous is the objection to the dimution of value

test because it has the inherent bias of considering only the harm imposed on
the individual and not the necessity of the regulation. 109 For example, to the

extent that the test focuses solely on the landowner, the formula denies recog-
nition and protection of such public rights as clean air and water and freedom

from noise, flooding, and erosion.

A greater recognition of these environmental implications is slowly per-
suading state and federal judiciaries. 110 In place of the objectivity of a ratio
of present to past value, some courts at least seemed willing to weigh the
value of many different elements. The recent decisions of the Massachusetts
courts have been particularly confusing, as the following cases illustrate.
Until very recently, the leading Massachusetts case of the taking
issue in relation to land use was Commissioner of Natural'Resources v. Vol2e

Limits of Regulation 69

decided in 19 65. 111 In the Volpe case the predecessor of the present wetlands

act was challenged as a taking when DNR imposed a no fill condition on the
Volpe Construction Company's plans to develop 30 acres of salt marsh. The

SJC in an opinion by Chief justice Wilkins touched on the taking issue, in

commenting:

where most of the value of a person's property has to
be sacrificed so that the community welfare may be
served, and where the owner does not directly benefit
from the evil avoided... the occasion is appropriate
for the exercise of eminent domain. 112

but ultimately remanded the case of further findings on the following matters:
1) the natural uses for which Volpe could put his land under the statute; 2) the
assessed value of the locus; 3) the cost of the land to Volpe; 4) the diminution
in value; and 5) the estimated cost of Volpe's proposed improvements.
Unfortunately the Volpe litigation was settled without a conclusion on

the taking problem. The court's remand instructions reveal it was extremely

interested in the articulation of a taking theory that could embrace the new

generation of environmental laws. Whether environmentalists would have been

pleased with the court's decision is purely speculative but the passage quoted
above suggests that the Supreme judicial Court at that time continued to

embrace the diminution of value test. This entrenchment was further revealed

by the court's indication that it desired that briefs address the issue of whether

or not a regulation must yield an owner a fair return on his investment. The
Court's dicta appears to lean heavily towards a need for compensation,
perceiving the preservation of remaining wetlands in their natural unspoiled

condition as a benefit.

The problem of using the harm/benefit test is well illustrated here.
Preserving wetlands can be characterized, just as easily, as a harm preventing

measure. Compare the trial courts findings in Volpe

The court finds the nutrients derived from Broad March,
and, in particular, the portion thereof to be filled by
respondent, play an important and integral part in
sustaining the life of the shell fish and fin fish in the

70 CONTROLLING GROWTH

area adjacent thereto. The marsh itself is part of an
ecosystem, or productive life unit, producing nutrients. . .
Without these nutrients untoward damage will result
to the marine fisheries.. . The police power undoubtably
extends to prevent a potential waste of resources in
those cases where such resources may be devoted to
the public health or welfare. 11

Notwithstanding the seeming commitment to the harm/benefit and diminu-

tion of value tests, an entirely different tack appeared in Turnpike Realty Co
Inc. v. Town of Dedham, 114 where a municipal floodplain regulation was

challenged. In Turnpike Realty, the SJC, under new Chief justice Taurc,
appeared to have replaced the dimunition in value test with an ad hoc balancing

test, although the Chief justice hastened to add in a concurring opinion that

the Volpe question is far from settled. Litigation began after a local board of
zoning appeals denied a special permit to construct an apartment building in a
floodplain. in a departure from the traditional test the court explained:

Although there was a substantial diminution in value of
the locus, the mere decrease in the value of a particu-
lar piece of land is not conclusive evidence of an un-
constitutional deprivation of property.

There is no set formula to determine where regula-
tion ends and taking begins. Although a comparison
of values before and after is relevant... it is by no
means conclusive...

The police power regulates use of property because
uncontrolled use would be harmful to the public
interest. Eminent domain, on the other hand, takes
private property because it is useful to the public.

The petitioner, moreover, has not been deprived
of all beneficial uses of its property. The by-law
specifically permits "Any woodland, grassland,
wetland, agricultural, horticultural or recreational
use of land or water not requiring filling. " Although
it is clear that the petitioner is substantially restricted
in its use of the land, such restrictions must be
balanced against the potenti9l harm to the community
from overdevelopment of a flood plain area. 115

Limits of Regulation 71

Thus in Turnpike Realty's ad hoc balancing two factors are important:
1) the potential harm to the community, and 2) the substantiality of the restric-
tions on the owner. 116 The concurring opinion, however, warned that this

decision should not be read as a blanket approval of conservation restrictions.
The hope for judicial approval of strict environmental measures based on

ad hoc balancing was unfortunately shortlived. In the 1976 case of MacGibbon
v. Duxbury 117 the Massachusetts Supreme judicial Court appears to have

reverted to the Volpe diminution in value test. The issue in the MacGibbon

cases was whether the Town of Duxbury could prevent the filling of tidal

marshes by enacting a by-law to "protect and preserve from despoliation the

natural features and resources of the town." The Court rejected the argument

that the land was unsuitable for residential construction or installation of

septic systems because MacGibbons was not seeking a building permit but
rather only the right to fill his land. The Court also rejected environmental

arguments such as the necessity of protecting the ocean food chain by classi-
fying the regulation (in the tradition of the Pennsylvania Coal Co. case) as one

which seeks a public benefit and not one which prevents an external harm.

Moreover the Court hinted that even if the town by-law could be seen as a
harm preventing measure, the fact that the marsh owner was left with only
agriculture and recreation as possible uses was too much of a diminution in
118
va ue.

The Turnpike Really case was dismissed by the MacGibbods Court as a
case involving the protection of individuals from flood dangers. No mention
was made of the ad hoc balancing approach of that case.
justice Reardon, joined by justice Wilkins, dissented believing "the
problem which this case presents is a valid exercise for the public police

power to restrain an injurious private use". He alluded to a recent decisionof
Massachusetts' sister state, New Hampshire, which on almost identical facts
had perceived wetlands regulations to be valid exercises of the police power.
Finally he warned that the Ma-cGibbons, case is "freighted with important
implications far beyond the case itself, and what flows from it will return to

72 CONTROLLING GROWTH

haunt us.

Given the confused state of the law in the aftermath of the Volpe Turn-
pike Realt and MacGibbon cases, one question that remains is how many
of the state and local "open space" laws are valid? The previously mentioned
Massachusetts Scenic Rivers Act would appear to be doomed by its own drafts-
men. By declaring that the purpose of the legislation to be to protect the
"irreplaceable wild, scenic and recreational resources" the legislators appear
to have opened thems elves up to the same attacks that faced the Duxbury by-
law. The Massachusetts Supreme judicial Court is very likely to perceive any
Scenic River regulations as attempts to secure public benefits without the pay-

ment of compensation.

It is also hard to see how the Massachusetts Wetlands Act can avoid the

same fate as the Duxbury by-law. Both attempted to regulate the filling of
tidelands in the interest of preventing harm to the ocean environment and the
Massachusetts High Court has already decided that this is more of a public
benefit than a harm. Even more ominous is the MacGibbon Court's suggestion

that restricting a landowner's permissible uses to agricultural and recreational

uses is unconstitutional in itself unless necessary to protect the safety of
those who wish to live there. It would appear likely that Cohasset's Protection

of Natural Features by-law and Scituate's Saltmarsh and Tideland Conservation

District will also fall if challenged because they are, in all substantive

regards, similar to the invalid Duxbury by-law.

It remains to be seen whether the Turnpike Realty case has even the
continuing validity necessary to support the H.U.D. model coastal floodplain
legislation that has been adopted by Cohasset, Scituate and Higham. It is
apparent that coastal communities will not be allowed to protect their wetlands

by the backdoor argument that the prohibition on filling or altering marshes is
necessary to prevent flooding and erosion, unless they can substantiate the
hazards. Once an area can be proven to be hazardous, floodplain legislation
that prevents occupancy and construction of dwellings is apt to fare better

than non-alteration provisions.

Limits of Regulation 73

As a generalization, environmental litigants will be in the best position

when they can convince the courts that the regulation is aimed at preventing

harm rather than seeking public benefits, when the potential harm that the

prohibited activity would generate is greater than the loss to the landowner,

and when the landowner is left with other uses more practical than merely

agriculture and recreation.

B. Nonconforming Uses

Comprehensive zoning, as originally conceived, was based on neatly

segregated and homogeneous zones. There has always been a strong desire to
get rid of nonconforming uses. In areas such as floodplains and coastal

storm areas there is an even stronger desire to get rid of nonconforming struc-

tures: the ever present threat to safety. What protection is afforded existing

structures and uses? What tools are at the disposal of municipalities to elim-

inate nonconformities, particularly safety hazards?

Historically, the early proponents of zoning recognized that the power to
prohibit future uses differed only in degree from the power to prohibit existing

uses. It was obvious that the losses in development potential in many cases

far exceeded the loss that might be occasioned by terminating an existing use,

but it was also obvious that, politically, termination would arouse public and
judicial opposition. Thus zoning was compromised in its infance: the Standard
Zoning Enabling Act (SZEA) would say nothing about nonconforming use, plan7

ners would concentrate on future development and everyone assumed that non-

conforming uses would go away. When Massachusetts adopted the SZEA there

was strong support for the position that preexisting structures and uses should

be treated as vested rights, hence the following provision was added:

except as provided in section 11 a zoning ordinance
or by-law or any amendment thereof shall not apply
to existing buildings or structures nor to the existing
use of any building or structure or of land to the extent
to which it is used at the time of adoption of the
ordinance or by-law... But it shall apply to any

74 CONTROLLING GROWTH

change in use thereof and to any alteration of a
building or structure when the same would amount
to reconstruction, extension or structural changes,
and to any alteration of a building or structure to .
provide for its use for a purpose or in a manner sub-
stantially different from the use to which it was put
before alteration, or for its use for the same purpose
to a substantially greater extent. 119

Even with this limited protection, nonconforming structures and uses

have not gone away. Commercial uses have thrived as government sanctioned
monopolies, and homes seem to last forever. Moreover, the provisions relat-

ing to altering or enlarging such uses are rarely enforced, while the variance
power is often used to justify rebuilding.

In contrast to Massachusetts, many states are silent as to the protection
afforded nonconforming uses and structures. In two states, the courts have
found that preexisting uses are constitutionally protected, while in others no

such requirement exists. The classic cases for nonprotection are the cases

of nuisance law. The elimination of noxious uses, unsafe structures, and
unsanitary dwellings has met with almost unanimous judicial approval. Because
of the statutory protection, however, the SJC has not given its opinion, except
to note in passing: "there is recognition in Section 7 that rights already
acquired by existing use or construction of buildings in general ought not to be
interferred with. "120

Whether a municipality could terminate structures within floodplains and

coastal hazard areas under the residential powers of the home rule amendment
is a relatively closed question. Faced with the rather strong policy to protect
existing land uses (except traditional nuisances), the courts are liable to

declare the municipal regulation preempted. The question of constitutionality
is obscured by the dubious social worth in most instances of such measures.

For many poor citizens, an order to leave one's home is a grave and serious
measure. The imposition of such conditions should only be occasioned by
compelling justification. The American Law Institute's model land development
code would allow discontinuance of existing land uses only after public hearing

Limits of Regulation 75

and adoption of a detailed state or local plan. Authorization would also be

provided to pay compensation in those cases where the elimination of existing
uses would impose too great a burden on the property owner. 121
Some states have imposed amortization timetables to eliminate non-

conforming uses. For the most part, these plans have met with judicial

approval as long as the time period is reasonably related to the economic life.

Nevertheless, amortization has led to very few discontinuances of any sub-

stantial significance, for mostly political reasons.

A final method, which in many cases is the most advantageous, is to

purchase existing structures and lands via tax abatements. This method of

reclaiming open space often takes the form of granting tax-free life tenancies,

in return for granting a reversionary interest to the state. A program of granting

life tenancies and, when necessary, exercising eminent domain may prove the

only feasible way to reclaim the critical environmental areas of the study

area's coastline.

C. Other Alternatives

Two other methods of preserving open space deserve mention: Develop-
ment Rights Transfer (DRT) and Dedication Requirements. DRT theory posits

the government may avoid the claim of compensation by allowing landowners in
critical areas a "floating" development right which may be sold to landowners
in less restricted areas. 122 This proposal has met with limited success in
preserving historic landmarks where landowners could have demolished and

built larger, more profitable structures. Two problems hinder the general

application of DRTs. The first is that some courts are reluctant to see bonuses
granted. (If X can build a structure twice as high, why can't Y and Z as a
matter of right?) The second problem is one of adequacy of compensation. In

areas where development has outrun the economic base, DRTs may not be

marketable.

Dedications (and the closely related concept of incentive zoning) provide

another way to preserve open space by conditioning development on require-

76 CONTROLLING GROWTH

ments such as provisions for commons, easements, or convenants not to

develop certain areas. This technique is hindered by the Massachusetts
Zoning Enabling Act 123 which prohibits dedications, except those necessary for
subdivision (i.e., provision of roads, sewers, sidewalks, utilities, etc.).
Many communities have circumvented this prohibition by the special permit or
contract zoning approach. While developers are allowed certain matter of
right uses,they often seek changes in the regulation and the community uses

this opportunity to demand additional amenities. The special permit approach
is subject to the criticism of improper delegation of authority to appointed
officials 124 and the amendment process is often objected to as spot zoning- 125
The SIC has, however, given contract zoning some measure of approval in a

case where the amendment reflected valid planning without regard to the
exac ions. 126

Chapter Three
WASTE COLLECTION AND TREATMENT

CHAPTER 3 Waste Collection and Treatment

It has been projected that by 1995 the present population in each of the
towns in the study area will increase approximately 75 percent (see Fig. 1-5).

Planning for population growth today can provide significant benefits in the

future. If population growth is not well planned many municipal services will

reach design capacities and a whole gamut of problems will occur. One muni-

cipal service which requires careful planning is the collection, treatment, and

disposal of liquid and solid waste.

Traditionally, in most communities, individual septic tank systems have

been installed and used. However, septic tanks become unworkable at higher
population densities and under poor soil conditions. For example, septic

tanks and leaching fields generally become unworkable for population densi-

ties greater than two houses per acre. Moreover, adequate percolation may
be inhibited or prevented by dense soils, a high water table or rocky ledge

underborder. Over a period of time, soils may become clogged and thus unser-

viceable. These complications may require frequent servicing, and disposi-

tion of the contaminated soil may present a severe problem.

Inadequate percolation conditions often result in effluent travelling
via surface runoff or ground water to low lying areas such as marshes or ponds.
The effluent, being rich in nitrates and phosphates, provides nutrients to a
host of organisms. If nutrient accumulation is excessive, eutrophication will
take place. For example leakages from septic tanks, low percolation rates,
geology, groundwater flow rates, and surface runoff characteristics are impor-

tant factors contributing to nutrient build-up in Straits Pond, Cohasset.

Utilizing nutrients as a food source, in the presence of sunlight, algae blooms
flourish. A deficiency in dissolved oxygen may then result and disrupt the

80 WASTE COLLECTION AND TREATMENT

lentic organisms. Moreover, algae blooms interfere with forms of water

recreation.

Typically, the installation of a new waste water treatment system is not
undertaken by a community unless it is forced to do so by an outside authority.
For example, the E.P. A. is administering a discharge permit system under the
Federal Pollution Control Act of 1972 which imposes a deadline on the com-
munity of Hull to eliminate the discharge of effluent into receiving waters.

Wastewater planning frequently becomes a crisis management situation

in which the collection and treatment systems are designed and constructed to

solve immediate problems. The design and construction of a package treat-

ment plant in Cohasset is illustrative of the planning approach in that the

State Health Department required immediate construction of a treatment plant

to handle wastes from a recently built high school.

In Table 3-1 current collection and treatment facilities, system capaci-

ties and proposed system expansions are shown for each of the four South

Shore communities. Because each town has exhibited a varying degree of pop-
ulation growth rate and concomitant land use change, the collection and treat-
ment of sewage has been solved in different ways by each. However, the

population serviced in each community is approximately the same with the ex-
ception of Hull, which is about to get its first plant. As population growth oc-

curs, it is likely that population densities will increase in some areas requir-

ing expansion of the wastewater collection and treatment system. Also, exist-
ing areas with marginal septic systems which may wear out In a few years

will need to be serviced.

POPULATION CAPACITY RELATIONSHIPS

The expansion in sewage system capacity and population growth versus
time generally exhibit the relationship depicted in Figure 3-1., Although this

relationship could be used to illustrate any capital expenditure over a time

horizon, for sewers the figure illustrates a number of key issues and problems

for a community.

TABLE 3-1
WASTEWATER INVENTORY

Category Hull Hingham Cohasset Scituate

Area 2.4 Sq. Mi. 22. 0 Sq. Mi. 9.9 Sq. Mi. 16.9 Sq. Mi.

Population
1970 9,961 18,845 6,953 16,973

1990 22,000 32,000 13,250 35,000

Soil Dense Formation Clay & Rock Mostly Ledge Generally
High Water Table Around Harbor and Hard Clay Sandy

Existing Capacity
Type 12 Untreated on MDC Activated Sludge Extended
Ocean Outfalls Aeration

Size -- 3. 8 mgd .075 mgd I mgd

Percent Population 30% 15-20% under 10% 20%

Disposal
Effluent Outfall Outfall James Brook land sand bed
filter land

Sludge Outfall Outfall Spreading Spreading

Proposal Expansion 3.06 mgd act. sludge No Major Plans Expand Plant to Eventually
Plant with ocean outfall 1. 3 5 mgd with expand to
and sludge incin. ocean outfall 2 mgd

Storm Drainage No Problems No Problems No Problems Sig. flooding in
com. area
Source: Interviews with various engineering firms and administrating agencies involved with
wastewater systems in the four towns. co

IDLE CAPACITY
SMALLEST FEASIBLE
PLANTINCREMENT

z
>- C4 POPULATION
GROWTH

-j

cL CL
0
a.
3
z
GENERATED POLLUTION
Z
C2
Z

OVER CAPACITY
cl I/D L@E UNDER CAPACITY
CAPACITY

LEAD TIME FOR
A NEW PLANT

CO L
to tl t2 t3 t4 t5
TIME
Source: Osborne, James G.
oPhysical- Chemical Wastewater Treatment Technology:
An Analysis at Impacts to Wastewater Service a
S.B. TheSi3, Dept. ot Urban Studies & Planning.
M.I.T. May, 1973

FIGURE 3-1: Population Growth and Water Treatment Capacity versus Time

Population Capacity Relationships 83

For example, an increase in plant capacity is traditionally undertaken

over a large time horizon for economic considerations, because there are
economies of scale which make it less expensive to design and construct a
treatment system for an expected population 15 to 20 years in the future.

These time increments pose a number of problems. Large expenditures are
required for a sizeable increase in plant capacity and extension. Planning for
a long-term horizon may require partial subsidy by taxpayers today to meet the

treatment needs in the future. Then, too, there is an uncertainty as to whether

or not the future population planned for will be realized to help pay for the

service.

A second set of issues and problems arises as a result of variable growth

rates. As depicted by the "S" curve, the growth rate for each town may vary
over time. The variable rate places greater importance on advanced planning.
An adequate amount of lead time is necessary for design, financing and con-

struction of facilities. If an accelerated growth period is not foreseen, insuf-

ficient time may be available to bring the required capacity on line.

A third set of problems arises from the fact that large increments and

variable growth rates point to problems of possible over and under capacity
design. Construction of over capacity, which is shown by the idle capacity,

will result in a significant amount of community resources allocated to a treat-

ment system which may lie idle for 10 to 15 years. Failure to provide adequate

capacity will result in release of untreated waste into receiving waters thereby

creating pollution. The general relationships shown in Figure 3-1 can be read-

ily applied to the four communities.

Hull, for example, may be represented as being at the point where con-

struction of a new treatment plant will be completed in 1976. The town recent-
ly appropriated $13 million for a new 3.06 mgd plan and construction will begin
in the fall. The idle capacity shown in the figure applies to the new plant

because the plant is designed to serve 34,000 to 40,000 people, but initially
it will serve only just over 3, 000, thereby operating at only 10 percent of

capacity.

84 WASTE COLLECTION AND TREATMENT

Scituate may be represented as being at point t I ' The community cur-
rently has a 1 mgd plant which serves slightly over 20 percent of the popula-
tion. The plant is operating at approximately 40 percent capacity. The commu-

nity anticipates that another I mgd increment in capacity will be required by

the mid-1980s, and already the necessary lead time for planning and construc-
tion of a larger plant has been recognized.

The time increments in installing collection capacity are not as dramatic
as those for treatment capacity. Additional collection requirements for capac-

ity increase and expansion are usually made annually.

PLANNING STRATEGIES

In planning growth strategies, the relative costs of sewage treatment

and collection are important considerations. The idle capacity, the high cost

of capital and uncertain population growth suggest that it behooves communi-
ties io build treatment and collection systems in smaller size increments

closer to the point in time when the service will be needed.

Although there are economies of scale with large treatment systems and

substantial state and federal grants are available for construction of treatment

facilities, treatment is the smaller component in the total system cost. Col-

lection systems do not offer economies of scale nor are substantial grants

available for upgrading and expansion of collection appurtenances. A compara-

tive estimate of the per capita treatment and collection costs for the small
systems that might be employed in the four communities are shown in Table
3-2. The estimates were taken from various sources and were adjusted to

1974 costs by the use of the ENR index.

Treatment represents approximately 22 percent of the total cost for a

sewage system. If 80 to 85 percent assistance were available for construction
of a treatment facility, the treatment cost would be on the order of 17 to 19 per-
cent of the total cost. Hence, for every $1 investment for treatment capacity
the towns incur, an investment of approximately $24 is required for the collec-

tion system.

Population Capacity Relationships 85

TABLE 3-2

COMPARATIVE ESTIMATE OF
COLLECTION AND TREATMENT COSTS

Collection Treatment Total

Amount Per Person $676 $194 $870

This estimate was made using the following sources-
Whitman and Howard, Inc., "Report on Proposed Sewerage System and
Sewage Treatment Facilities, Hull, Massachusetts." Boston,
Massachusetts. August, 1969.

Penjerdel, Inc., "Sewage Disposal in the Penjerdel Region; Too Little,
Too Late." Pennsylvania-New Jersey-Delaware Metropolitan
Project, Inc. , Philadelphia, March, 1964.
Downing, Donald A. , "The Role of Water and Sewer Extension Financing
in Guiding Urban Residential Growth." S.M. Thesis, University
of Tennessee. April, 1972.

The analysis dramatically underscores the importance of applying a

portion of a fiscal budget to well-planned collection networks and draws
attention to planning for anticipated land use development.
The sewage collection costs for sprawled development are significantly

higher than for clustered development. Because collection costs are largely

borne by the community through the floating of sewer bonds, it is suggested

that promoting the development of higher density residential areas through

cluster zoning would minimize the strain imposed on the fiscal budget by the

need to build sewage collection systems.

Sewer bonds supporting collection costs can be considerable. The

expenditures for sewer construction in Scituate from 1965 to 1973 are shown

in Table 3-3. The large sums of money necessary for the financing of sewer
construction have been raised largely by bonds. The table illustrates a prob-

lem confronting communities desiring any capital improvement, that is, the
rising cost of capital reflected in the increasing interest rates. The most

86 WASTE COLLECTION AND TREATMENT

TABLE 3-3

EXPENDITURES FOR SEWER CONSTRUCTION,
TOWN OF SCITUATE, 1965-1973

Expenditure Bond Term Interest Rate
Year ($) (Years) N
1965 520,000 20 3.5
1966 1,000,000 20 3.7
1967 270,000 20 3.6
1967 17S,000 19 4.2
1968 175,000 10 4.5
1969 225,000 5 5.7
1971 505,000 10 4.8
1971 135,000 S 4.8
1972 310,000 5 4.0
1973 1,105,000 5 4.25

Source: 1973 Annual Report, Scituate, p. 143.

recent bond for sewer construction was floated in January 1975 for a 5.5 per-
cent yield. To reduce carrying costs, and for other reasons, the periods for
bond issues have decreased. The immediate impact of rising interest rates

and shorter terms is an increase of the annual debt service payments. For
example, the 1966 and 1973 bond issues were roughly the same amount, but

the annual debt service payment of the earlier bond issue was only 29 percent

of the later issue. The debt service payment for Scituate for 1973 for sewer

construction is shown in Table 3-4. The total debt service payment accounted
for 8 percent of the town's tax rate.
The rising cost of money is not the only problem confronting planners.

Between 1969 and 1974 construction costs for sewer lines and treatment plants

have increased substantially as shown in Table 3-5. The percentage change

in construction costs far exceeds the percentage change in consumer price
indexing (CPI). The CPI in the same period increased approximately 11 percent.

Rising construction costs may have accounted for one-half of the increased
estimate for the Hull treatment plant which was estimated to cost $5. 1 million

in1969 and is now estimated at $13 million.

Although diminution in construction costs is unlikely, sewage collection

and treatment costs may be reduced.

TABLE 3-4

1973 DEBT SERVICE ON SEWER BONDS, TOWN OF SCITUATE

Issue Year Principal payment* Interest Payment*

196S $ 25,000 $ 10,063
1966 55,000 24,420
1967 15,000 5,940
1967 10,000 4,620
1968 15,000 33,038
1969 45,000 1,283
1971 25,000 3,000
1972 65,000 8,500
1973 225,000 42,122
Total Payment of Debt Service $530,000 + $121,046 = $651,046
*Amount in Dollars

Source: 1973 Annual Report, Town of Scituate, p. 143.

TABLE 3-5

SEWERAGE CONSTRUCTION COST INDEX FOR METROPOLITAN BOSTON

Sewer Line Construction Treatment Plant Construction
Year Index Cost Percent Change Index Cost Percent Change

1969 148 5.4 140 7.1
1970 156 13.0 150 14.2
1971 176.3 12.6 171.3 3.9
1972 198.5 5.5 178.1 6.5
1973 209.5 31.2 189.7 22.8
1974 274.8 233

Source: Engineering News Record

88 WASTE COLLECTION AND TREATMENT

The random land use development decisions made in the past will have

to be accomodated by extensive and costly collection networks. However,

future judicious land use planning, including cluster zoning and planned unit

development, may permit new growth to occur without allocating substantially

higher fiscal funds for sewage collection systems.

In addition to zoning, innovations in advanced wastewater treatment

technology may take place to yield a higher quality effluent at lower treatment

costs. Likewise, physical-chemical treatment has already proven to be a
viable alternative for reducing total collection and treatment costs in new sub-

divisions.

As indicated in Figure 3-1, the time for planning is now when priorities

and objectives can be formulated which will improve the environment and will

represent the most efficient use of a community's resources. Sewage system

expenditures represent only one component, albeit an important one, of the

costs associated with population growth. Integrated planning and growth

strategies determined on a regional basis may enable the communities to

realize a desirable environment with the least impact on municipal finances.

Chapter Four
TRANSPORTATION SYSTEMS

CHAPTER 4 Transportation Systems

PROBLEMS AND ISSUES

Getting from one place to another is an ever present problem for those
who live in suburbiaand the residents of Hingham, Hull, Cohasset and
Scituate certainly have their share of "transportation problems. " As mentioned
earlier nearly a third of the work force commutes to Boston.1Those who make
the twice daily trek have discovered long ago that the road network has insuf-
ficient capacity in many locations to meet peak demands. As local population
and development increase along Route 3, these problems can only intensify.
The influx of summer vacationers is an additional factor in the transporta-
tion problem. For example, Hull may have as many as 100,000 visitors on a
good summer day. The long traffic tie-ups on the secondary arteries that run
along the coast lines of Scituate and Cohasset are also a seasonal incon-

venience.

The lack of mass transit service is another persistent woe. By any

conventional indicator -- comfort, convenience, travel time or cost --thelevel
of service is deplorable, and capital and operating costs are high. Moreover,

the sprawling nature of the study area makes it difficult to institute new

services.

Clearly, any imaginative solution to improve transportation levels of

service in a community raises several questions. What is the cost-effective-

ness of achieving better levels of service? What are the socio-economic and

environmental impacts resulting from the implementation of an innovative

service in the short term? In the long term? What are the implications of

implementing various control measures to curb the drive-alone mode? If a

new transit service were to be introduced, what would be the demand and

92 TRANSPORTATION SYSTEMS

supply? What are the institutional arrangements necessary for implementing

mass transit?

In this chapter the existing and proposed transportation services, both

for the work and intra-town trips, are examined. A demand model for travel

between the study area and Boston has been devised, and the results are used

to assess the economic feasibility of commuter boat service. Finally the legal

problems affecting use of the abandoned Greenbush railroad, and locally

initiated bus service, are briefly discussed.

THE HIGHWAY AND ROAD SYSTEM

The primary access routes from the coastal towns to Boston are shown
in Figure 4-1. Route 3-A is the oldest and most important link between the
communities and the center city. South of the Summer Street rotary in Hingham,

Route 3A is flanked by a relatively undeveloped right-of-way. North of the
rotary to where it meets the expressway there is little hope for right-of-way

expansion because of commercial development separated from the roadway by

only the width of the sidewalks.

Route 3, built in the 1950s, connects the study area and points south

with the Southeast Expressway, the most heavily travelled thoroughfare in

Massachusetts, and the eighth most heavily travelled in America. Until a

recent decision was made to use the breakdown lane, the expressway was
functioning at level of service F.2Even with the utilization of the breakdown

lane, the expressway, particularly the central artery, remains highlycongested

during peak commuting hours. The likelihood is that reconstruction of fourteen

bridge decks on this highway, to be undertaken within the next two years, will

hinder traffic flow even further.

With the exception of a few Hingham residents, none of the commuters
in the study area has ready access to Route 3 and the Southeast Expressway.

Route 228 runs from Nantasket Beach to Route 3 and provides the primary

means of access to Route 3 for residents of Hingham, Hull, and Cohasset.

Route 228, however, is a narrow, winding road that traverses residential

FeN
BOSTON reeder roads
mm=W Route 3 and Southeast Expressway
continuation

SPCTACLE
SOUTH- TWMPSON LONG
EAST
EXPRESSW N
RNNSFORD P, A
mo HULL
r17

QUINCY SAY
A A/

HARBOR
OWNCY 3A
MILTON SRv-
Umll!@@
WEYMO T ST COMAS$ T
3 SCITUATE
53 'AINGNAM
WEYMOUTH SYTEET
BRANTR 53 3A
EE COUNTRY
WAY

FIGURE 4-1: Study Area and Road Network

94 TRANSPORTATION SYSTEMS

neighborhoods. For the most part Scituate commuters use Route 123 to get to

Route 3. The area through which Route 123 runs is less densely developed,

but otherwise suffers from the same drawbacks as Route 228.

Generally each town has an adequate system of collector streets and

minor arteries that join Route 3A, with the exception of Hull during the summer

months.

Because of the configuration of Hull, commuters. generally use Nantasket

Avenue which runs the full length of the peninsula, a distance of approximately
seven miles. There are reportedly long lines of traffic along Nantasket Avenue
early in the morning and in the evening. During the summer months the traffic

on this avenue and George Washington Boulevard, a link between Nantasket

Avenue and Route 3A, increases by a factor of three. A Route 228 bypass, to

link not only the Nantasket Beach area but also Cohasset and North Scituate

with Route 3, was proposed in 1969 by the Massachusetts Department of

Public Works. The new spur would improve regional accessibility, although

construction appears unlikely because of the growing sensitivity to large capi-
tal investments for highway construction. In addition, there is strong opposi-

tion in Cohasset to any coastal highways.

In the absence of such a bypass, most commuters will continue to travel

to Boston by taking the collector and secondary streets to reach Route 3A, and

then proceeding along Route 3A to Neponset Circle in Quincy, where it meets
the Southeast Expressway. During the month of June 1975 a traffic count was

undertaken at selected control stations along Route 3A. The traffic volumes

and distribution data are shown in Figure 4-2.

E)USTING TRANSPORTATION MODES

Commuters travel from the South Shore to Boston by a variety of means:
automobile, bus, rapid transit, and ferry boat. Intratown trips are largely
limited to walking or auto driving with occasional busing to schools and shop-
ping centers. The existing rail lines are used for freight transport, the majority

of deliveries being made to three firms: General Dynamics, Proctor and

KeY
MASSACHUSETTS FUNCTIONAL CLASSIFTCATTONS
URBA 4 PRINCIPAL ARTERIAL ROADS
=wwwom Extension of rural principal
123,00wo any waosewExtension of rural minor
inalisnin Other urban principal
mointwousaUrban minor princi,pal
3'@, 411, 28,700 1500 1030 Ig Peak hour traffic volumes
es recorded at stations
T
Owl!
33,300 -sP ;F
00,3 010
$,a PO 4
In hwn

15,100
Braintree 31300
v,200 1
APPROX
% 12@00
P, 1-,(, 53
21,000 , 15900

54,1

n
G-ee sh
16,600

4700

S972 Traffic volumat (ADT) 2 walf,414
TO
Gracktort 1 1975 Peak Traffic volumeg (one wayl

FICUP,E 4-2: South Shore Area: Commuter Routes and Peak Hour Traffic Volume

96 TRANSPORTATION SYSTEMS

Gamble, Fore River in Quincy, and General Services Administration in the

North Hingham Industrial Center. The predominant modes of travel are briefly

described below.

A. Automobile

The automobile is the primary mode for work trips. In the peak-hour

traffic count, it was noted that approximately 72 percent of the vehicles travel-

ing on Route 3A are automobiles with an average occupancy of 1. 6 persons per

vehicle. Automobile ownership and usage in the study area are higher than the

national averages. A large number of families have two or more cars, and the

second car provides for the bulk of intratown transportation.

Automobile use has both positive and negative aspects. Positive aspects
are 1) origin destination times are reduced; 2) the automobile is private,
comfortable and convenient; and 3) there is no need to conform to a fixed

schedule or route. Negative aspects include high operating costs and the con-

tribution to regional air pollution.

Automobile operating costs for South Shore commuters absorb a significant

portion of the annual income of households in the study area. Furthermore,

these costs can be expected to increase in the future with further increases in

the cost of petroleum products. Harder to quantify, but in some ways even

more significant, are the socio-environmental costs of automobiles as moving

air pollution sources. An examination of emission data reveals that the nation-
al ambient air quality standards for the Boston interstate region3are often

exceeded, andthat this is primarily due to moving pollution sources. It is

estimated that the study area contributes 0. 2 percent of the regional hydro-

carbons and 0.2 percent of the carbon monoxide. Of course, automobiles are

not the only moving sources. Buses and commercial vehicles are also blame-
worthy, but the low occupancy level of cars (1. 6 person s/vehicle) points
out the inefficiency of automobiles as a transportation mode.

B. Bus System

The southeast corridor is served by four bus systems, three of which are

Existing Transportation Modes 97

operated by private carriers and a fourth which is publicly operated.

Bus routes for existing services generally follow the major arteries
(Figure 4-3). Patrons use various means to get to the bus depots including

walking, driving, or picking up a ride from family or friends. It was noted

from field research that with a walk time to the bus depot greater than seven

minutes, most patrons utilize their automobile instead of walking.
The Plymouth and Brockton Street Railway Company (P&B), the largest

carrier in the corridor, commences service in Greenbush, Scituate en route to

Cohasset and Hingham and enters the Southeast Expressway via Route 128
(see Figure 4-3). Although there are local buses from Scituate, most

Scituate commuters use the express buses which bypass Cohasset and

Hingham. Commuters from Cohasset do not have express service.
Headways during the commuting period are often variable as some

operators wait at depots for regular passengers who may be a little tardy.

An examination of scheduling reveals that the coastal towns appear to

be well serviced by the P&B service during the week with fair to poor service
on weekends (see Table 4-1). However, the patronage -capacity ratio has

been steadily increasing. In a study undertaken in 1973, it was found that the
patronage capacity ratio for express bus service inbound to Boston between
6:50 a.m. and 9-30 a.m. was 104 percent. 4 During 1975, instances were

reported where buses filled to capacity did not stop to pick up bus patrons

waiting at depots.

An examination of bus service reveals an inadequacy in mass transit

between Scituate, Cohasset and Quincy Center. A survey conducted in 1973
by the Scituate Jaycees reveals a strong interest for supplementing this

service. The advantages to be gained would be-

1. Better levels of service for the 600 residents of Scituate and

Coha s set working in Quincy
2. New employment opportunities for non-Quincy residents

3. Accessibility to rapid transit
At the present time, the P&B and MBTA bus routes come within one mile

Kev

PLYMOUTH- BROCKTON BUS
NANTASKET BUS
BOSTON
MBTA BUS

........... MBTA RAPID TRANSIT
C@D HLILL- BOSTON COMMUTER BOAT
fa?

HULL

Q NCY <Z3

HINGZ COHASS
CENTER

QUEEN SCITUATE
ANNEt
CORNE

Figure 4-3: Publicly and Privately Owned Transportation Service Routes

Existing Transportation Modes 99

of each other in Hingham with little possibility for exchange of patrons.
MBTA service from Hingham Center to Quincy Center is adequate during

the week, with an average pa trona ge-capa city ratio of 50 percent. The major

drawback to this service is the reliance on the automobile for access to

Hingham Center.

Hudson Bus Lines provides limited express bus service from Hingham

Center to Government Center, Boston, during the peak commuting period, via

the Southeast Expressway.

Under Chapter 161A of the Massachusetts General Laws (enacted in
1964), the MBTA was given exclusive jurisdiction over public transportation.
Thus, Hudson buses are prohibited from picking up or discharging passengers
along the MBTA routes. However, in a recent ruling, 5 the U.S. Department of

Transportation told the MBTA to allow Hudson Bus Lines access to Quincy

Center, thereby contravening the exclusive road rights granted to the MBTA.

In spite of the opposition by the Quincy City Council, the prodding by UMTA

may result in other carTiers being granted access to Quincy Center.

The relatively poor levels of service for Hull commuters is the result

of a small owner operator, Nantasket Bus Lines, restricting service due to

high operating costs. As the result of the withholding of road rights to the

Quincy Center terminal, the bus service makes local stops in Hull and carries

riders to Hingham Center, where the patrons transfer to the MBTA bus for
Quincy Center and take the rapid transit to Boston. Headways for Nantasket

Bus Lines during commuting periods are approximately one hour.

C. Rapid Rail Transit

Rapid transit is provided by the South Shore extension of the Red Line to

North Quincy, Wollaston and Quincy Center. The South Shore extension is a

double-track line with third rail electrification constructed at a capital cost
of $75 million.

Most commuters from the coastal towns board at Quincy Center, and the

majority of patrons use the automobile to reach the station. On the average,

100 TRANSPORTATION SYSTEMS

the number of commuters arriving from the coastal towns by automobile and

requiring parking places is significantly higher than the parking places required

by the total number of patrons arriving by automobile from other towns. A

recent study of parking demand at these transit stations indicates that there are
about 1. 2 persons arriving daily by automobile per parking space.6 As a

result, commuters not only have contributed to traffic congestion in Quincy
but also have placed a burden on Quincy to supply parking facilities.

D. Hull-Boston Ferr

Approximately 75 daily commuters leave Pemberton Point, Hull, at

7:30 a.m. and depart Boston at 5:30 p.m. for a 50 minute commuter boat ride

operated by the Mass Bay Line, Inc. The patrons are primarily Hull residents

although some riders from Scituate and Cohasset use the service.
In ten years of operation, weekday service has been interrupted only
three times. The one-way adult fare of $1.25 and student fare of $0.7S is the
least expensive mean's of travel from Hull to Boston.
The primary drawbacks to this service are: 1) the crafts in operation

are old and need refurbishing; 2) travel to Pemberton Point requires use of
an automobile; 3) travel time is excessive; 4) terminal sites require

maintenance.

However the patrons appear to overlook these negative aspects or are

at least willing to trade them fort he scenic boat ride.

PROPOSED INTERTOWN TRANSPORTATION SERVICES

A. Commuter Boat

1. Service Description

During the past year there have been attempts to initiate a commuter

boat service between Hingham Shipyard, Hingham, and Rowe's Wharf, Boston.

The Massachusetts Port Authority announced in November, 1974, that it would

authorize the commencement of the service by March 1975, but service did
not commence until October 6, 1975. 7 Service was terminated November 28

Proposed Intertown Transportation Services 101

in accordance with terms of the experiment but the boat did run for about three

weeks later in the year.

In March 197S a project was undertaken by staff of the South Shore
Chamber of Commerce to identify relevant issues associated with initiating a

commuter boat operation. The commuter boat of interest was the HM.2 Hover-

ferry manufactured in the United States by Hover Marine Corporation,

Pittsburgh, Pennsylvania.
Riding on an air cushion produced by lift fans, the HM.2 is one and a

half to three times faster than conventional ferry boat service. The time of

travel between the South Shore and Boston over water would be approximately

25 minutes by hoverferry in comparison to 50 minutes by ferry boat. The craft

has a five foot floating draft which makes it very suitable for Hingham Bay

which is quite shallow at low tide. The craft is very maneuverable and safe.
From a cruising speed of 35 knots, it can come to a dead stop in less than

three craft lengths. Moreover, wave generation, noise, and pollution are

minimal.

Because of the shallow draft, the hoverferry would have a direct route

over water between terminals. Routing options for South Shore commuter trans-

port and a more complicated network tying in Logan Airport, the Harbor Islands

and other potential markets are shown in Figures 4-4 and 4-5. Rowe's Wharf

provides a good terminal facility in terms of accessibility to destinations in

downtown Boston or outlying areas via rapid transit. Although Hingham Ship-

yard needs refurbishing, an excellent dock facility exists, ample parking
space is available,and there are no foreseeable zoning problems.

The HM.2 does have major limitations which may interfere with

achieving a desired level of service as noted below:

a . Scheduling is a problem. An HM. 2 can carry a maximum of
only 60 passengers during one run
b. The amount of debris in the harbor could cause grequent
damage to the hovercraft and result in high maintenance costs
costs
c. An increasing number of pleasure crafts in Hingham Bay and

102

TABLE 4-1

BUS SERVICE

Number of Trips/Day

Operator Route Monday-Friday Saturday Sunday

M.B.T.A. Quincy-Hingham 38 29 14

P & B Scituate-Boston 23 9 4

Nantasket Hull-Hingham 8 7 -
Bus Line

Hudson Hingham-Boston 2 -
Bus Line

103

E.Bosion j Winthrop Roads
BOSTON eiiiiiiiiiiiii Boat route

i C-3
S.Bosto 1%
colu i(3"' Pam ton
pt
Moon 1@7
HU4

INGHAM

QUINCY

FIGURE 4-4: Experimental Commuter Boat Route, 1975

Keys

E.Boston Winthrop - Roads
t' niiiiiiiiiiiiiiiii Route at Peak commuting hours
Extended routes at off-eak hours
Air

Doer Is.

S. Boston
0 ctocle
coium Pt, Long Is. tl
40 hompson C::.
is. Rain3ford
Moon is.
Is.

'q3

HINGH
QUINCY

FIGURE 4-5: Proposed Commuter and Off-Peak Boat Routes

104 TRANSPORTATION SYSTEMS

Boston Harbor may tend to reduce cruising speed and increase
travel time

d. Ice formation may prevent service

2. The Prediction of Demand for Alternative Transportation Modes

To estimate the consumer demand for hoverferries in relation to the demand

for alternative land transportation modes, a short-run disaggregated demand
model of logit form8was developed (see Appendix IV for program format). The

model was used to describe a work trip mode decision undertaken by a worker

who commutes from his residence in one of the coastal towns to his place of

employment in Boston, and returns home in the evening.

To derive an origin-destination matrix which would be applied to the

model, travel information was extracted from a telephone home interview

survey, newspaper sources, and census data. The travel information revealed

that most communters journeyed to the Boston downtown area. Within this area

three destinations were chosen, the financial area, Government Center, and
the Prudential Center-John Hancock area (Figure 4-6). Zones of origins were

assumed to be residential areas in each town. North Weymouth was added as

a potential market source for the hoverferry service.
Previous work has shown the feasibility of transferring disaggregated

demand models calibrated from socio-economic and travel characteristics in
one geographic area to estimate travel demand in another area. Atherton 9
demonstrated that the transfer of a logit model calibrated from data collected
in Washington, D.C. showed exceptional performance in predicting model
share for the journey to work in New Bedford, Massachusetts. Given the large
monetary and human resources required to derive a demand model, Atherton's
research appeared to offer an excellent means to model the work trip made to

and from the South Shore.

The Washington model is calibrated for the drive-alone, shared-ride,
and transit modes. The approach used in transferring it to the South Shore
case is to apply the vector of coefficients derived for the Washington model
directly to the South Shore model instead of reestimating the coefficients

CHARLES RIVER BOSTON INNER HARBOR
DAM

LONGF Ow GOV NMENT CENT 81@
AR
r---- C-.-j

-nn

N
%

Boston
Common
dA Gorden\ FIN NCIAL A

calk

PKIJUILNIIAL CENTER
JOHN HANCOCK AREA

South
,A
Boston

COLUMBUS AV- TREMONT ST. Southeast
9@Expressvyay

FIGURE 4-6: Survey Grid for Demand Model

106 TRANSPORTATION SYSTEMS

or updating the original coefficients by using Bayes' theorem.
The disaggregated work-mode -choice model explains the conditional

probability that an individual consumer will choose a mode from a set of all

possible mode alternatives. The model, a description of an individual's be-

havior in evaluating a set of possible alternatives and selecting a course of

action, is based on the principle of maximizing one's utility; that is, prefer-

ring one transportation alternative over others which are available.

The model incorporates a utility function described by a vector of vari-

ables characterizing a mode, e.g. out-of-vehicle travel time, out-of-pocket

travel costs; a vector of socio-economic variables characterizing a communter,

e.g. auto availability, household income; and a vector of coefficients.

The estimation of modal share is the probability of selecting a mode

based on a model configuration which was structured as a decision tree delin-

eating alternative mode choices. The model configuration is shown in Figure 4-7.

In applying the model configuration, it is assumed that a commuter has a
choice of either driving alone, car pooling, or using mass transit. Should a

commuter choose to use public transit, he has a choice of using land transpor-
tation, or water transportation (hoverferry) . In choosing land transportation,
a commuter may elect to ride the bus or rapid transit (conditional on access to

these modes by driving alone), or car pooling.

The data base, which is comprised of a number of travel and socio-

economic variables, was collected by a home Interview telephone survey and

field work conducted during July, 1975. A summary of the characteristics of a
commuter and his household is displayed in Table 4-2.

The percentages of South Shore commuters travelling between origin-
destination pairs were calculated by 1) obtaining the total number of workers
for each town travelling to Greater Boston for the work trip, from 19 70 census
data; 2) multiplying these volumes by a factor calculated as the population
growth rate from 1970 to 1975 for each town respectively; and 3) multiplying
by a factor obtained from the sample representing the percentage of commuters,

by town, travelling to each destination.

107

DA = Drive Alone
SR = Sbared Ride
MT = Mass Tran@@it
L = Land Modes
W- Water Mode (Hoverfer-tv)
B = Bus
rl = Rapid Transit

DA SP MT

DA SR
B TN

DA SR DA SP, B

FIGURE 4-7: Cascading Demand Model Structured
for the Coastal Communities
(See also:flow chart, Appendix IV)

I.-
C=)
00

TABLE 4-2

SUMMARY OF SOCIO-ECONOMIC VARIABLES OBTAINED
FROM THE JUNE 1975 TELEPHONE HOME INTERVIEW STUDY

Characteristics of a Communter and His Household:
(Mean Values and Standard Deviations)
Town Household Number in Number of Number of Number of Age of
Income ($) Family Workers Autos Drivers Communter

Hingham 16,980 4. Itl.8 1. 3tO. 6 1. 9to. 9 2 .7t 1. 3 41.8�14.1

Cohasset 21,055 4.2 t 1. 9 1.3tO.5 2.OtO.8 2.8�1.2 43.6�10. 5

Hull 13,831 3.9 �1.7 1.5�0.6 1.9�0.7 2.5� 1.1 37.1�19.1

Scituate 18,697 4.5�1.6 1.3� 0.5 2.3�0.8 3.2 �1.1 39.7�12.7

No. Weymouth 18,175 3.6t2.1 1.6�0.8 2.5� 1.4 2.6�1.3 32.3�12.7

Proposed 1ntertown Transportation Services 109

Four policy options have been introduced as possible determinants of

modal share:

1. A variance of hoverferry fare

2. An increase in the car operating cost
3. A decrease in car pool travel time by a factor of 0.7 by
considering the establishment of special road use lanes

4. An increase in commuter boat travel time

Estimates of travel costs and travel times to the financial area are

shown in Tables 4-3 and 4-4. It is shown that the round trip cost of driving
alone to the financial area from Scituate is $5.02, based on a car operating
cost of six cents per mile and a $2.00 daily parking charge. It is estimated
that a Scituate commuter spends $1,225 or 6.7 percent of his household income
annually driving alone to the financial area. The costs of driving alone to other

destinations from other towns is equally expensive.

It is noted that riding the hoverferry offers no significant savings in
travel time in comparison with using a car, rapid transit, or (for some origin-
destinations) bus. On the basis of cost and time, car pooling is shown to be

a good alternative. Only its inconvenience bars it from becoming a dominant mode.

Hoverferry offers a compromise in that the travel time is slightly less

than by car, with a cost to the commuter somewhere between that of a car and

conventional transit. The waiting time, the travelling from the hoverferry

terminal to an employment location, and the short over-water distance between

terminals tends to minimize savings in travel time by hoverferry.

The estimated hoverferry demand, resulting from the assumed description

of commuter behavior described in the model configuration, was calculated by

devising a computer program. The model was also run without considering the

hoverferry alternative to predict the present modal share. The predicted modal

share was compared with the existing modal share.
In Figure 4-7, the predictions for the work trip modal share showed

good agreement with the existing modal share to Government Center, Boston.

Similarly, other origin-destination modal shares showed good agreement.

TABLE 4-3

COST VARIABLES: ORIGIN TO BOSTON FINANCIAL AREA AND RETURN

Mode Hingham Hull Cohasset Scituate No. Weymouth

Drive alone* $4.33 $4.52 $4.54 $5.02 $3.69

Carpool* 1.74 1.82 1.83 2.02 1.48

Drive alone - Bu s 2.45 2.87 2.43 3.20 2.71

Carpool - Bus 2.35 2.82 2.40 3.07 2.59

Drive alone - Train* 2.67 2.86 2.88 3.35 2.06

Carpool, - Train* 1.67 1.75 1.76 1.54 1.43

Bus - Train 1.90 2.40 3.00 3.10 1.90

Drive alone - Hoverferry** 3.60 3.79 3.81 4.28 3.36

Carpool - Hoverferry** 3.24 3.32 3.33 3.52 3.15

*Includes parking costs
**Assume 1-way hoverferry fare is $1.50

TABLE 4-4

TIME VARIABLES: ORIGIN TO BOSTON FINANCIAL AREA AND RETURN

mode Hingham I-lull Cohasset Scituate No. Weymouth

Drive alone 120 126 126 140 102

Carpool 130 136 136 150 122

Drive alone - Bus 90 188 116 152 173

Carpool - Bus 100 198 126 162 183

Drive along - Train 104 110 110 124 87

Carpool - Train 114 120 120 134 97

Bus - Train 120 192 212 242 124

Drive alone - Hoverferry 108 114 114 128 102

Carpool - Hoverferry 118 124 124 138 112

Note: Travel time in minutes. Includes in-vehicle and out-of-vehicle travel times

112 TRANSPORTATION SYSTEMS

The model appeared to be predicting more drive-alone trips and fewer transit
trips than actually take place. The shared-ride estimates showed exception-

ally good agreement.

Upon introducing hoverferry into the model, modal splits for each origin-

destination pair were estimated, as well as the tctal predicted demand summed

over all origin-destination pairs.
In Figure 4-10, Curve C, it is shown that for a one-way fare of $1.50,

hoverferry ridership would be 730 passengers, the commuter boat attracting

11.3 percent of the current number of commuters to downtown Boston.

In all likelihood, the implementation of a hoverferry service would not
significantly decrease the percentage of commuters driving or car pooling to

downtown Boston, even if the hoverferry service operated free of charge.

This suggests that the automobile level of service characteristics dominate

those of hoverferry.

Increasing the cost of car operation does not significantly attract more
hoverferry riders (Curve D, Figure 4-10). Establishing car pool lanes would
decrease ridership (Curve B, Figure 4-10). Doubling the over-water travel

time which approximates the travel time of a hull boat would substantially
decrease ridership (Curve A, Figure 4-10).

A sensitivity analysis showed that varying the model's coefficients by

25 percent would not result in any significant changes in demand volume.

3. Conclusions Regarding the Hoverferry

The commuter ills and the commuter crisis facing South Shore commuters

will likely remain.
The possibility of transferring/u sing a demand model calibrated in one
geographic area to estimate consumer demand In another area has shown

significant potential.
The implementation of hoverferry service would not substantially

decrease travel costs or travel time in comparison to driving alone.

The implementation of a hoverferry service for commuter service alone
would not be a financially rewarding adventure for public or private investors.

113

Mass Shared ride Drive alone
F] Transport
Hingliam Hull Cohassel Stituate :1 No. Weymouth

49% 45% 43% 46% 38%

16%

38% 44%

FIGURE 4-8: Existing Work Trip Mode to Government
Center, Boston -- Split Percentages

Mass Shared ride PM Drive alone
F-1 Transport K@Q

H
--I t] Scituate No. We;;@outh
ingham Cohasse

42% 37% 36% 37% 32%

19% 37%

39% 42% 39% 47%
21% 20%

34% 34%

24%

39%

- - ---A

FIGURE 4-9: Predicted Work Trip Mode to Government
Center -- Split Percentages Based on
Cascading Demand Model of Figure 4-7

A C D

3.00
A = Decrease in demand if travel
time by water decreases

B - establish carpool express
lanes
2.50 C . implement hoverferrv under
existing conditions
D - Increase in demand if cost of
car rises to 15C per mile

2.00

1.50

1.00

0.50

0.00
200 400 600 Soo 1000 1200 1400

PREDICTED DMAND

FIGURE 4-10 Predicted Total Demand Curves for Hoverferry Users from All
Destinations Under Four Policy Alternatives

Proposed Intertown Transportation Services 115

However, there are other potential markets which should be examined (such as
the Boston Harbor Islands, the University of Massachusetts, and Harbor
Cruises), which, together with the commuter boat service, may generate

enough revenue to increase demand and lower the breakeven cost.

B. Development of the Greenbush Right-of-Wa

With the opening of the Southeast Expressway in 1959, the Old Colony

railroad line terminated service along its main lines (Figure 4-11). Although

200,000 people live within a 10 minute walk of abandoned depots, the Old
Colony line lies dormant. For the coastal towns, the Greenbush Line offers
transportation opportunities for (1) commuter rail service; (2) rapid transit
extension; (3) busway; or (4) bikeway.

The idea of reviving the Greenbush Line for rail service is an appealing
one on first consideration. However, on further exploration of the possibility

many problems which might arise come to light, including a low benefit-cost

ratio for restoring rail service, the need to resolve conflicts of interest

between the commuters of Scituate and Cohasset desiring the service, and the

interest groups in Hingham who wish to avoid the service because it would tie

up traffic at twelve major intersections in the town and degrade property values
along the right-of-way.
There is a further problem of a legal nature--federal subsidies would

surely be required to restore the rail service. By federal law, parklands are to

receive protection from encroachment by transportation facilities supported by

the federal government, unless there are no feasible alternatives, or the alter-

natives involve uniquely difficult problems. Because the right-of-way is

municipally owned by some communities --Scituate has purchased the right-of-

way for the expressed purpose of recreation--the door is open for abutters along

the route to challenge federal subsidy for restoration of the Greenbush Line as an

illegal use of parkland. A challenge in court could very well prove disastrous

to any Greenbush Line revival plan. For this reason, and because of the capital
costs involved, the Greenbush Line will probably remain a natural right-of-way
instead of a transportation corridor.

Key
cc> 1111111 Greenbu-sh Right-of-Way
ca

OHASSET

f 1%

WEYMOUTH HINGHAPA SCITU TE

Oro

00
to,

MARSHFIELD

FIGURE 4-11: Old Colony Railroad.Greenbush Route

Intratown Transportation Service 117

INTRATOWN TRANSPORTATION SERVICE

Intratown busing is a service confined inside a town's boundaries. Hull

has essentially such a service; Scituate has expressed an interest in starting

one. Intratown busing is a service in which a town could move ahead on its

own and remain essentially independent of the MBTA with its higher operating

costs and administrative constraints. In all likelihood the MBTA would main-

tain regulatory power over the issuance of certificates for public convenience

and necessity, but the certification process is not a serious stumbling block

to intratown busing. More important is the requisite demand for the service.

The town of Sudbury has inaugurated its "Sud-bus" system using a private
carrier and a $25,000 town subsidy. The level of service will have to be cur-

tailed in the future in order to avoid increased subsidy, since the majority of

users are children, not housewives and senior citizens as was originally

anticipated. Moreover, the service has been relatively ineffective in dis-

couraging people from using their cars.

Population density and concentration are two demographic constraints

important in determining whether or not bus service can be supported.
Generally, for conventional bus service, a population density of at least 2000

people per square mile is needed. For the use of school buses or paratransit,

which resembles taxi or jitney service, densities of at least 1000 people per

square mile are required. The fact that Sudbury has 600 people per square
mile may be the underlying reason for the low number of riders. Although the

four coastal towns have denser populations than Sudbury, only Hull and

Scituate have more than 1000 people per square mile.

The viability of bus service also depends on whether there are sufficient

reasons to motivate the transfer of people between concentrated areas of popu-
lation. Hingham, with its somewhat more urban population concentration and

commercial facilities, may have more success with busing, in comparison to
Cohasset, which manifests a more suburban, or spread out, pattern of develop-

ment. The motivations for the transfer of people within Scituate remain to be

substantiated.

Chapter Five

CONTROLLING GROWTH

CHAPTER 5 Coastal Recreation

"I found everywhere recent changes in the ownership of
land and a movement of people of means. from the cities
and the interior of the country to the shore regions of the
state. I found leagues and leagues together of the shore-
line to be all private holdings without the intervention of
these long reaches of a rod of space on the shore to which
the public has a right to go. I walked across the domain
of one man who owns about six miles of the shore line. I
found a great population inland hedged away from the
beach, and all conditions pointing to a time, not remote,
when nobody can walk by the ocean in Massachusetts
without payment of a fee... 11

-- Excerpt from the Report of
Mr. 1. B. Harrison to the
Trustees of the Reservations, 1892

Mr. Harrison's observations, although nearly a century old, still ring
true. Many of the vast estates are gone, but in their place are smaller hold-

ings, whose owners guard their exclusive possession just as zealously.

Nationally, the need for additional recreation space continues to grow. The
causes of the recreation explosion have been expounded frequently; 2 growing
population, more leisure time, greater mobility and higher standard of living.
The Massachusetts situation is particularly desperate; 940 miles of our 1200
mile shoreline are beach, or suitable for beach, but only 87 miles of the coast
remain as public recreation land. 3 The situation within the study area is even

bleaker. Less than two miles of the 70 miles of coast are open to the general

public.

In 1970, the Massachusetts Legislature commissioned an investigation

of the management, operation, and accessibility of public beaches and related
matters (the Beach Access Commission). The Commission's final report and

122 Coastal Recreation

the legislation it has generated, has done much to clarify the law, and it pro-
poses a number of changes that would affect coastal residents. Two of the

major issues in coastal recreation are: 1) public rights along the seashore,
and 2) municipal exclusion of non-residents from beaches.

SCOPE OF PUBLIC RIGHTS

One of the major bills to come out of the Beach Access Commission was
the "Public Right of Passage" Bill.4The Commission proposed that a public

right of passage along the foreshore (the strip of land between high and low
tide) be recognized and regulated in the public interest. Passage would be

limited to daylight hours and pedestrian traffic. Certain areas, such as fenced

agricultural land, structures authorized by law, or critical ecological land,

would be exempted, but otherwise any attempt to interfere with this right would

be punishable by fine. The bill provided that it was not to be construed as

altering any existing property rights and that the right to passage was declared
to be part of the reserved interests of the public in the land along the coast.
The proposed legislation was not enacted, but, rather, was sent to the
Massachusetts Supreme judicial Court for an advisory opinion.5The Court

concluded that such a bill would violate both the Massachusetts and federal

constitutions as it would appropriate private property without just compensa-
tion. While the advisory opinion was a set-back for the advocates of expanded
public rights, the Court's opinion clarified a number of issues and is worth

examining.

A. Historic Backgro nd

To understand the decision, it is necessary to trace a brief history of

Massachusetts, law concerning the seashore, and any such discussion is
inevitably drawn to the Colonial Ordinance of 1647, which provided:

Sect. 2 Every inhabitant who Is an householder
shall have free fishing and fowlin in any great ponds,
bays, coves and rivers, so far as the sea ebbs and flows
within the precincts of the town where they dwell, unless
the freemen of the same town, or the general court, have

Scope of Public Rights 123

other-wise appropriated them: provided, that no town
shall appropriate to any particular person or persons,
any great pond, containing more than ten acres of
land, and that no man shall come upon another's prop-
perty without their leave, otherwise than as hereafter
expressed.

, , * . *It is declared in all creeks, coves, and
other places about and upon salt water, where the sea
ebbs and flows, the proprietor, or the land adioining
shall have propriety to the low water mark where the
sea doth not ebb above a hundred rods, and not more
wheresoever it ebbs further: provided, that such
proprietor shall not by this liberty have power to stop
or hinder the passage of boats or other vessels, in or
through any sea, creeks, or coves, to other men's
houses or lands. (emphasis added)

The motives of the drafters of this document are lost to antiquity, but it is

commonly assumed that the ordinance was intended to encourage the building
of wharves and thus the settlement of the coastline.6 There is considerable

evidence that a battle had been raging in England between the Crown and the

merchants over ownership of the tidelands and the Ordinance could have been
a reaction to King Charles' attempts to seize wharves and warehouses. 7
In any event the enumerated triad of public rights (fishing, fowling and
navigation) and the cryptic term "propriety" have been the touchstones of

judicial scrutiny for over three centuries. Beyond the literal meanings of the

triad, the Massachusetts courts, during the nineteenth century, expanded the
the public rights to include clam digging8and sea weed farming. 9 In 1907,

however, the Supreme judicial Court refused to expand the public rights to
include bathing. in Butler v. Attorney General 10 ., propriety" proved to be a

construct of great importance.

The Butler case was a suit to register title to certain shorelands and to

have the public rights clearly defined. The petitioner requested specific
rulings from the judge presiding over the court of land registration, among
which were that the public rights in the foreshore did not include a right of

bathing or fowling, nor did they include a right to walk over the foreshore for

124 COASTAL RECREAT10N

any other purposes other than navigation or fishing. The attorney general,

arguing on behalf of the adjoining landowners and the general public took the

opposite view. He argued that not only were fishing and navigation public
rights, but that these public rights also included fowling, bathing and "passage
for general purposes when the tide was out." The judge of the land court (a
lower or trial court in Massachusetts) concluded that fowling was still a public

right because it was enumerated in the Colonial Ordinance, even though the

absence of wild birds made it of little worth. He also concluded that bathing

was not a public right, and that there was no right to passage along the fore-
shore for any purpose other than fishing, fowling, or navigation. I I Both sides

appealed. The Supreme judicial Court agreed with the trial judge that fowling

was still a public right and that bathing was not, but the Massachusetts High

Court, for lack of adequate argument, failed to reach the question of a public

right of general passage.

The courts' decision as to bathing revealed the significance of the term
.'propriety.,, Early decisions had held that the public rights in great ponds, as
opposed to the foreshore, were not limited to the triad of fishing, fowling, and
navigation, but rather expand to include "such public uses as the progress of
civilization and the increasing wants that the community properly demands. "12
Public rights along the foreshore, however, could not expand, in the opinion
of the Butler court, because the grant of "propriety" to the upland owners

froze public rights in their colonial usage.

B. The Massachusetts Court's Decision on Public Passage Right

Given this precedent, the proponents of the "Public Right of Passage

Bill" had a difficult task. The main thrust of the commission's argument was
that the enumerated rights should be viewed as "merely illustrative. " This ar-
gument was obviously at odds with the Butler decision; nevertheless, there was

considerable merit to it. At the time the Colonial Ordinance was written, there
was no principle that the taking of easements or other public benefits required
compensation. The colonists would not need to define with any degree of

Scope of Public Rights 125

specificity the extent of public rights,if they assumed that further public rights

could be defined as the needs arose. A second, closely allied, argument was

that the seashore was a unique type of property, impressed with a public trust

because of the Colonial Ordinance and that the trust was capable of expansion

to meet modern needs.

The court rejected both of these arguments and advised that the Butler
case was controlling authority for the position that public rights on private

land are to be strictly construed. In the court's opinion if the public wants a
right of passage, then it must pay for it. While this begs the question of

why public rights should be limited to the public needs of three centuries ago,
the court's advice can be justified by the same principles that underlie most

court decisions of "taking" issues. One reason for the "no taking without

just compensation rule" is the fundamental tenet of equal protection. Applied

in this context, equality in the eyes of the law requires that all citizens share

the burden equally when society decides that it needs more recreation space.

It would be unfair to have the whole burden of providing more recreation space
fall upon the shoreline landowners when the benefit is shared by all. Even if

the seashore is seen as a quasi-public resource different enough from other

types of recreation space to avoid equal protection arguments, equitable notions,

such as estoppel, probably influenced the court's opinion that compensation
was required. Under equitable estoppel, courts have often held that one who

by his language or conduct leads another to do what he would not otherwise

have done, shall not subject such person to loss or injury by disappointing the

expectation upon which he has acted. Although these principles are normally

invoked by private parties, government is by no means immune to such equitable

considerations. In the beach context it can be said that ever since colonial

times the state has represented that title to the beaches belongs to the
littoral (adjacent upland) owner, subject only to the few enumerated public
rights (fishing, fowling, and navigation). Reliance on this representation has

taken the form of substantial investments in homes. Opening up the beaches

now would adversely affect the value and desirability of these homes, and there-

126 COASTAL RECREATION

fore the state is "estopped" from expanding public uses.

A recent California case concerning ownership of tidelands has employed
the estoppel principle to prevent the city of Long Beach from reclaiming land

on which the defendants had built their homes. In essence, the California

High Court viewed its decision as a balancing of harm to the owners who had

reasonably relied on the government's previous position versus the public
policy that would be frustrated. 13 Similarly, the estoppel principle is a

strong agrument in favor of the Massachusetts Court's decision. Although the

public need for recreation space is important, the reliance and investments of

the thousands of owners of coastline homes can be said to outweigh the

public policy.

ALTERNATIVE METHODS OF EXPANDING PUBLIC RIGHTS

A. Federal Intervention

Similar attempts to insure public use and passage have been advanced

on the federal level. In 1973 the National Open Beaches Bill was proposed to
clarify and affirm public rights. The bill provided:

"The public shall have free and unrestricted right to
use [the shoreline] as a common to the full extent
that such public right may be extended consistent
with such property rights of littoral owners as may
be protected absolutely by the Constitution." 14

It further authorized the United States Attorney General to bring suits for
declaratory judgment in the federal courts to ascertain title. Conceivably this
could reopen the issue of public rights along the Massachusetts coast. How-
ever, the nature of public rights has long been held to be a matter of state
law 15 , and it is doubtful that a federal court would overturn the Supreme Judi-
cial Court's opinion, albeit advisory.

Noteworthy, however, are the rules of evidence that the bill provides for
litigation. Section 205 provides:

"A showing that the area is a beach shall be prima facie

Alternative Methods of Expanding Public Rights 127

evidence that the title of the littoral owner does include
the right to prevent the public from using the area as a
common;

A showing that the area is a beach shall be prima
facie evidence that there has been imposed upon the
beach a prescriptive right to use it as a common. "

For Massachusetts litigation this could require private owners to show that

the Colonial Ordinance, by enumerating fishing, fowling and navigation,
intended to exclude all other rights (a point assumed by the advisory opinion).
Moreover, in many areas where title is uncertain, the burden of proving even
ownership might be insurmountable to the littoral possessor.

B. Follow-up-State Proposals

The Beach Access Commission, after the defeat of its right of passage

bill, had also suggested, but in the end did not recommend, a pro-public rights

rule of evidence for Massachusetts. The bill was worded as follows:

In any action brought or defended under this chapter and in
any action to which this chapter is relevant to the determina-
tion of any issues therein, it shall be prima facie presumed
that:

(1) common use of a way or other route of access to
shore or beach land or of shore or beach land by members
of the public that has been open, continuous and uninter-
rupted for a period of five years is based upon a dedication
of an easement of access to or use of such shore or beach
land to the use and enjoyment of the public;

(2) a public right to access to shore or beach land,
however acquired, is for the purpose of and includes as
appurtenant thereto an easement for the use and enjoy-
ment by the public of the shore or beach land to which
access is thereby affordedj6

This legislation, if passed, would have required an owner to prove a lack of
donative intent when public use for five or more years is evident. Presently,

Massachusetts law requires a clear showing of an owner's intention to grant
public rightsl7before the doctrine of dedication' 8comes into play. Moreover,

128 COASTAL RECREATION

the bill would provide that a showing of public access would be presumptive
of public rights to use the beaches for other purposes. One final provision of
the bill would quiet title in the public wherever the public has openly and con-
tinuously used a beach for 20 years or where a municipality has maintained,
improved or otherwise controlled the beach for five or more years.

Some criticism has been laid against these provisions. The major argu-

ment is that the threat of presumptions would stimulate beach owners to pro-
tect their interests by prohibiting strollers when they would not otherwise have

misgivings. The net effect, critics argued, would be a counter productive

diminution in beach access. Proponents, on the other hand, argued that it is
of utmost importance to begin to reclaim public rights, and subsequent litiga-
tion would be greatly aided by these presumptions. 19 For the study area, the

quiet title provision might have been helpful in resolving many of the disputes
along the beaches of Scituate and Hull, where municipal control and mainten-
ance has traditionally been exercised, but where public title is in doubt. 20

For example, where the public has traditionally used areas of Upper Nantasket,

Scituate and Humarock Beaches for more than 20 years, the land would have

automatically become public by the quiet title provisions. The areas where
towns have maintained the beaches (such as parts of Humarock, Upper Nan-
tasket, and possibly Sandy Beach) for more than five years would also
become public property by quiet title. The owners of the ostensibly private
beaches of Scituate (near Minot and Mann's Hill) would have had the burden

of proving that the beaches were not public and that they took all reasonable
steps to prevent public use. Failure to prove this would have resulted in the
defeat of their claims. As previously mentioned, however, this proposal was

not recommended by the commission.

C. Acquisition
The most promising tack for insuring public rights along the seashore
would appear to be acquisition. Condemnation or purchase would avoid the
uncertainty of piecemeal litigation and the niceties of proving donative intent,
custom, prescription, etc. The drawback, of course, is that it is costly.

Alternative Methods of Expanding Public Rights 129

Mitigating the expense, however, would be possible because not all the
shoreland would need to be acquired, but only those portions most suitable for
regional recreation areas, and in many instances only easements, as opposed
to acquiring the property outright, would be necessary. 21

There are many strong reasons for providing "just compensation" besides
the fact that it is the "American way." As previously mentioned, one reason is

firmly intertwined with the principle of estoppel: to the extent that the state
has acquiesced for so long in private control of the shoreland, and allowed

substantial development to occur along the coast, it should be required to

compensate owners for the economic dislocations that occur in opening the

beaches. Closely related is the principle of equality of taxation- the need

for more recreational space is nearly universal and it would be unjust to have
this burden fall on the small group of citizens which has chosen to invest in

the shoreline.

There is a variety of federal funding programs to assist the Common-

wealth in acquiring public rights. The Open Space Land Program of the Depart-

ment of Housing and Urban Development provides 50 percent matching grants

for acquisition of open space in urban areas. Presumably the study area, as
part of the Metropolitan region, would qualify. The Land and Water Conserva-

tion Fund also provides 50 percent matching grants to state agencies engaged

in planning, acquisition or development of outdoor recreation areas. Moreover,

the Department of Natural Resources and the Metropolitan District Commission
are empowered by the Legislature to acquire recreational lands and other
property interests. The MDC plans no new acquisitions in the area studied,

nor does the DNR.

The economic condition of Massachusetts is, of course, a constraint
on present acquisitions. Whether acquisition within the study area would be
fruitful use of scarce public funds is questionable. In recent years a number
of sites in the study area have been proposed for state and regional recreation.

These proposals are shown in Figure 5-1.

0
00 f@
CP -11@

Z-@

Key

Proposed sites

.dft Existing sites

FIGURE 5-1: Proposed and Existing State and Regional Recreation Sites

Municipal Exclusion of Non-Residents 131

Hog Island in Hull, presently a federal military holding, was a proposed
acquisition in a 1969 MAPC study. 22 While it is mostly unsuitable for bathing

and lacks parking capacity, it nevertheless is very attractive for marine
recreation uses (such as boating) and low-density passive recreation (such as

fishing and picnicking).
Expansion of the MDC Nantasket Beach is the most common proposal to

help accommodate regional bathing desires. The advantages of expansion lie
in the facts that a large-scale facility already exists and that costs of
acquisition would be comparatively low. The major disadvantage is that

expansion into any dense residential area would involve additional relocation

costs and disruption of existing neighborhoods.

Acquisition of the Glades Strawberry Point area primarily for conservation

and passive recreation has also been suggested. This area has little potential

for bathing use, and conservation interests may already be adequately protected

by the state's Wetland Act and local zoning.

Of all the ostensibly private beaches in Scituate, Mann Hill is the

most suitable for acquisition. The beachfront is not located in a densely

developed residential area, and the available parcels appear to have enough

space for parking and a bath house. The beach itself, however, is not of
high quality, consisting mainly of shingle rock.

The final frequent proposal is the purchase of the Fourth Cliff military

installation from the federal government. Again, this area has little bathing

potential. The scenic vistas, however, make this area suitable for passive

recreation.

MUNICIPAL EXCLUSION OF NONRESIDENTS

The recent trend to prohibit or restrict nonresident use of the few existing

public beaches involves a variety of methods. Some towns have excluded

nonresidents outright, while others have achieved the same result by exclud-
ing nonresidents from parking lots, or by charging discriminatory fees. The

issue of exclusion is important because, with the exception of Nantasket, all

132 COASTAL RECREATION

the public beaches in the study area are under municipal control. Moreover,

a number of the ostensibly privately organized beach associations also deny
access to outsiders. The growth of the adjacent inland towns and of the metro-

politan area will ineveitably lead to demands for greater access to these areas.

The capacities of public beaches within the study area are shown in

Table 5-1. In Hingham there is only one small bathing beach and it is owned

by the town and restricted to town residents, according to posted signs. Non-

residents are excluded from the town parking lot adjacent to the beach. In Hull,
the MDC facilities, of course, are open to the general public. Likewise, the

Hull town officials have not taken any steps to exclude the public from the

town-owned beaches. The lack of parking, however, effectively limits

TABLE 5-1
PUBLIC, BEACH DATA

Town and Beach Length Width Area Capacity* Parking
(Ft) (Ft) (sq ft) (people) Places
Hingham
Bathing Beach 600 50 3,000 400 252

Hull

MDC Nantasket 5,808 30 174,240 2,323 2,100
Town Nantasket 13,200 50 660,000 8,800 on street where
legal
Crescent Beach 2,112 20 42,240 563 -0-

Cohasset

Black Rock Gravel, poor facilities not developed -0-
Sandy Beach 500 50 25,000 333 300

Scituate

Bassings Beach Inaccessible, not developed -0-
North Scituate 2,500 50 125,000 1,667 300
Egypt 800 50 40,000 533 150
Sand Hills 2,500 40 100,000 1,333 30
Jericho 550 50 27,500 367 -0-
Peggotty 1,500 70 105,000 1,400 280
Hummarock 2,000 70 140,000 1,867 150
Capacity based on recreational standards of 75 Sq. Ft. per person
Source: Town Reports, Interviews

Municipal Exclusion of Non-Residents 133

general use.23 There is a similar lack of parking along Cohasset's beaches,
with the exception of Sandy Beach. There the town has built and now super-

vises a large parking facility for residents, all of whom belong to the private

beach association. In Scituate, ownership of long stretches of the shoreline
is in doubt with the town, private beach associations and home owners all

claiming title. Scituate has built a number of parking areas and hired atten-
dants to prohibit out-of-town beach goers ?4 Illegally parked cars are fined $5.

To many residents this issue stimulates emotional arguments an various

levels. The gut reaction is: these are our beaches; nonresidents should

seek out recreational facilities within their own towns to meet their needs.

Proponents of public access respond just as emotionally in asserting, as a

historic and social reality, that the seashore is a fundamental resource of the

entire Commonwealth. The proponents of open beaches also argue that while

towns are instrumentalities of the state created in the belief that many

decisions are best made on the local level, to read into this home rule philo-

sophy a right of coastal towns to monopolize the seashore would be contrary

to the best interests of the Commonwealth.

The Beach Access Commission, aided by Professor Rice of Boston

University School of Law, has suggested a number of legal attacks on munici-

pal exclusionary practices. One basis for opening up the beaches would be
the general laws that require that parklands be forever maintained and kept
open to the public. 25 Presumably, "parkland" is broad enough to include

beaches and the "forever open to the public" requirement could easily be con-

strued to mean the general public.
A second tack would be a revival of the dynamic trust theory rejected in
the advisory opinion on public passage. While the court held that public rights
could not expand on private land, it intimated no opinion as to the scope of
public rights on public land. Thus it could be argued that municipal land is
open to the general public not just for fishing, fowling, and navigation but
26
for all modem needs. I The New Jersey High Court recently upheld this view

and held that equal access "represents a deeply inherent right of the citizenry,,,

134 COASTAL RECREATION

traceable to the Magna Carta.27

Furthermore, it would appear that a municipality that has traditionally
opened its beaches might be barred from subsequently attempting to close

them, the theory supporting this view being that the opening of a town beach

for unrestricted use constitutes an irrevocable dedication to the general public.
The New York courts have upheld this view. 28 A second ground for such a

decision would be based on the Massachusetts Public Trust Doctrine that

required legislative approval whenever public lands are diverted from one use
to another. 29 Any change from general access to resident-only access would

thus consitute a change of use requiring approval.

The problem of non-resident exclusion via restricted parking facilities
was also discussed by the Beach Access Commission. Proponents of open

access argued that logically it must be viewed as merely another impermissible

attempt to exclude non-residents. Even if one accepts the abstract proposition

that a town may build parking lots for the exclusive use of residents in some

instances, the fact that the parking facilities in question have no reason to
exist except as beach parking areas dictates that the parking lots, just as the

beaches themselves, be open to the general public. The open beaches faction

concluded that to allow such de facto exclusion would be to exalt form over
substance. 30

Allegations of discriminatory fees reveal another facet of the non-

resident problem. The argument is often made that public beaches and parking

facilities are purchased and maintained by town funds raised via property

taxes. It is only fair, the local communities argue, that non-residents pay
their share through admissions fees. Open beaches proponents charge, how-

ever, that many communities with a fee structure utilize their beaches as
profit-making ventures with a purpose of subsidizing other town beaches used
solely by town residents or discouraging non-resident use altogether. Our
study of beach operations in Hingham, Hull, Cohasset and Scituate reveals

that none of the beaches in these communities is a profit-making operation. In
fact none of these beaches is operated on a fee basis. MDC parking fees are

Municipal Exclusion of Nonresidents 135

the same for residents and nonresidents. The municipal parking lots have no

fee structures; residents are free, nonresidents are prohibitied.

Fee structures, of course, may be implemented in the future to relieve

some of the pressure for open beaches. Conceivably admissions fees would be

charged along many South Shore beaches, but any system where nonresidents

pay as they go and residents are charged as part of the property tax poses
serious valuation problems. It is difficult, if not impossible, to judge how

much use the resident and nonresident each gets for his dollar. Although the

Massachusetts general laws allow a community to defray costs by either admis-
sions fees or municipal taxes, 31 the members of the Beach Access Commission

who favor open beaches would like to rule out combination systems, because
of these valuation problems. Their advice would seem to be for communities

to avoid using tax funds at all, charge all users equally, and pay all expenses

from the funds collected.

A final issue is that of the private beach association which excludes

nonresidents. While a basic principle of private property is that an owner may

exclude or admit persons to his land at his unfettered discretion, it must also
be noted that private associations may be influenced by, or controlled by,

"state action" to the extent that the same obligations as for a public organiza-
tion will attach. 32 Thus, a high degree of "state action" will trigger a respon-

sibility to insure equal protection of the law -- in this case, the right to equal
public use. Some members of the Beach Access Commission suggested that
the requisite degree of state action might be found in delegation of manage-
ment for public beaches to private associtions, in municipal sales of beaches

to such organizations where the purchase price is below the fair market value,

in municipal agreements to maintain the ostensibly private beaches, or in

municipal parking facilities for the sole benefit of these organizations.

THE EFFECT OF OPENING MUNICIPAL BEACHES

One proposal before the Beach Access Commission was a bill that would
substantially codify the suggestions of the open beaches faction. 33 It would

136 COASTAL RECREATION

prohibit the exclusion or restriction of non-resident use of any state, district,

county, or municipal beach except on terms, including charges, equally appli-

cable to both residents and non-residents. Communities which wished to con-

tinue to charge residents property taxes and non-residents admissions fees

would have to satisfy guidelines promulgated by the Secretary of Environmental
Affairs in order to insure equality of assessments. Finally, any private beach

association which discriminates between classes of the general public would

be denied tax exempt status.

This proposal poses a number of problems. First, most of the beaches

we have studied are narrow and rocky. Many are incapable of supporting any

more than their present users. Second, additional usage could generate

substantial traffic problems because of the density of coastal residences.
Third, the opening of Massachusetts beaches would probably affect the South

Shore more than any other area because of its proximity to Boston. At present

the communities of Hingham, Hull, Cohasset and Scituate would be unable to

control this demand.

Nevertheless, it is our opinion that opening up the beaches should be a

goal of the Commonwealth because of the long-term benefits to the state and

the communities. As we have already mentioned, the continuing growth of

southeastern Massachusetts can only lead to greater pressure for public

recreation space. As twentieth century society moves from a system based on

status and privilege to one based on equality, it is anomalous to allow the

right of enjoying the seashore to hinge on what side of the town line the

citizen buys or rents his home.

Moreover, it can be said that the future of the study area rests in its

resort and tourist potential. Each of the towns already realizes substantial
revenues from its marinas and harbor moorings.. The town fathers of Hull

have proposed a convention center as part of their redevelopment program. A

large portion of retail trade of each town comes from summer residents and

tourists. lt would appear that it is eminently in the best interest of all the

coastal communities to foster greater use of the seashore.

'The Effect of Opening Municipal Beaches 137

The gist of the beach crisis is thus the problem of reconciling the needs

for greater recreation space with the local desires to preserve their environ-
ment. The substantial investments in homes and expectations of a pleasing

semi-rural atmosphere to raise families can not be easily overlooked. The

two interests are not, however, impossible to reconcile. There are a number

of techniques for expanding and nurturing beaches to provide additional

capacity. Similarly, traffic problems can be eased- or alleviated by peripheral

parking lots and shuttle buses.

But, of course, this means expenditures of state funds and it raises

additional questions. The study area is already densely populated. Placement

of additional regional facilities here will necessitate large acquisition costs

and community dislocations. Could not these funds be better used to create

regional recreation areas in less densely developed areas such as the Boston
Harbor Islands ?34

In short, there is a great need for a true regional recreation plan. The

policy of opening beaches to all should be joined by a commitment by the

state to fund sufficient facilities and transportation systems to avoid over-

crowding of the coastal environment. This should be an integral element of

any system of coastal zone management.

Chapter Six

SUMMARY AND RECOMMENDATIONS

CHAPTER 6 Summary and Recommendations

HOUSING

The cost of housing along the South Shore has become prohibitively

expensive for most citizens. The vast majority of present housing units are

single-family detached homes. Nearly all the vacant land is zoned for more
single-family detached homes. Singles, young marrieds, and retired couples
find it difficult to move into (or remain in) the coastal communities. Low and

moderate income citizens, likewise, have difficulty finding housing that they
can afford. In the long-run exclusionary practices (zoning to maximize
property taxes) may prove socially divisive on the local and regional level.
The Massachusetts Zoning Appeals Law is plagued by local opposition for

mostly economic reasons: residents see low and moderate income housing as

having a high demand for municipal services and a low yield in tax dollars.
Furthermore, developers have been reluctant to use the state appeals process

because the costs and time delays of litigation make front end cost unbearably

high.

Recommendations:

1. Any long range solution to the exclusion problem will have to sever

the tie between property values and municipal services. The regressive prop-
erty tax should be replaced (or be significantly reduced) by a statewide tax

and the revenues derived should then be distributed according to municipal

need. The legislature should begin by examining the merits of recent Federal

Reserve Bank proposals.

2. There is a need to evaluate the Massachusetts Zoning Appeals Law in

terms of its goals of providing adequate low cost housing throughout the metro-

142 SUMMARY AND RECOMMENDATIONS

politan area. It is suggested that more vigorous state and local involvement
(through housing authorities, land banking or a state development corporation)

may be necessary.
3. In any event, there is a need for different types of housing. Commu-
nities should reexamine their preoccupation with the single-family detached

homes. Cluster and low rise multifamily developments may be less expensive

in terms of municipal services and may provide better tax returns. More

importantly, higher density development in some areas can help to preserve

open space in other areas, and provide a variety of housing types that more

closely approximates both regional and local needs.

CONSERVATION

The local ability to manage and conserve natural resources has been

stimulated by sound state laws that have placed initial responsibility in the

hands of local officials and by the Home Rule Amendment which has given

towns the power to pass their own laws so long as they do not conflict with

explicit state policies, The Federal Flood Insurance Program and the State

Coastal Zone Management Plan will also intensify local planning efforts.

Recommendations:

1. In adjudging the validity of conservation measures, the Massachu-

setts court appears to be moving towards an ad hoc balancing approach. Plan-

ners are best advised to document the public harms that environmental measures

are aimed at preventing and to be prepared to prove that these public harms are

greater than the burdens that regulation will impose on landowners.

2. Without more strict enforcement of the "no alteration provisions"

and more stringent use of the variance power, nonconforming uses will con-

tinue to pose a problem, particularly in coastal hazard areas. A possible
solution is a state sponsored program of acquisition either by granting life-

tenancies and tax abatements or by exercising eminent domain.

The Planning Process 143

3. While mandatory dedication of space is not permissible under

Massachusetts law, the special permit or contract zoning approach may allow
communities to negotiate for conservation measures. For special permit

systems to pass muster, it appears that the town meeting must lay out explicit

standards to guide the board of appeals. In contfact zoning, towns are in the

best position when the rezoning can be justified by itself without reference to

the benefits given up by the landowner.

THE PLANNING PROCESS

There are three pervasive problems in the localized planning process:
first, there is continuous potential for myopic deci sion-ma king, particularly

with regard to seeking tax ratables and avoiding undesirable but necessary

types of development. Second, there is a schizophrenic tension between the

formal and informal planning systems. Formally, almost all changes in the

zoning scheme must be made by the elected officials or by a town meeting,

but informal changes are quite frequently made by appeals boards through the

misuse of the variance and special permit powers. Finally, there is a bewil-
dering proliferation of local bodies that make land use decisions: selectmen,

planning boards, appeals boards, conservation commissions, renewal agencies

and housing authorities, to name a few.

Recommendations:

1. There are a number of proposals for strengthening state and regional

planning capacity. A state land use policy and particularly a coastal zone

management policy are long overdue. It appears that state and middle level

government will assume a greater role in land use planning by either reviewing
local decisions or hearing appeals in two broad areas: 1) critical environ-
mental concerns and 2) developments of more than local significance. Local
officials should become familiar with the proposals (particularly the review

mechanism and the criteria for identifying critical environmental concerns and
regional development) and work closely with state legislators to insure that

144 SUMMARY AND RECOMMENDATIONS

benefits of localized decision-making (local expertise and capacity for close
supervision) are not lost.

2. While many decry the informal zoning process as contrary to the
zoning act, the fact that it exists may point out a need for revising our present
system of land use controls. The flexibility of an administrative proceeding
may be better, in the long run,than the highly emotional town meeting. Zoning,
as presently practiced, is a static system. It assumes that a community can

sit one day and decide what is the best use of land districts for decades to

come. Perhaps this is unrealistic and should be replaced by a dynamic system
where administrative officials have discretion to decide on specific develop-
ment proposals. (This discretion would, of course, be limited by procedures
and policies adopted by the town meetings.)

3. Consolidation of local land use decision-making bodies should be a
long term goal. Where this is not feasible, efforts should be made to increase
coordination (i.e. joint meetings on problems that two or more local bodies

share, sending of observers, circulation of minutes and agenda).

WASTE COLLECTION AND TREATMENT

As long as population continues to grow, the disposal of wastes, parti-

cularly waste water, will continue as a planning problem for each of the com-

munities and the region as a whole. Poor soil conditions and increasing popu-
lation densities will reduce future reliance on septic systems. In addition,

more stringent governmental regulations, such as the Water Quality Act of

1972, will require greater purification, if not elimination, of effluent dis-

charges.

A number of factors must be considered to plan efficient treatment

systems. First, there are economies of scale in building such facilities. That
is, once a location and system are decided upon, building twice as much
capacity will rarely cost twice as much money. A second countervailing factor

is the problem of tying up large amounts of capital on the mere estimate of
future population. Over capacity will result in a significant amount of commu-

Transportation 145

nity resources lying idle. Under capacity will result in the release of untreated

waste. Third, there is the problem of collector systems. For every dollar
invested in treatment, the communities have been spending $24 in collection.
Fourth, the rapidly rising costs of borrowing money and of construction must

be considered and finally, there is the possibility, lurking in the wings, that

a technological breakthrough in small package chemical treatment may make

its entrance.

Recommendations:

1. While economies of scale should be analyzed, the idle capacity

problem, high cost of capital and uncertainty of population growth suggest

that it behooves communities to build treatment and collection systems in size

increments closer to the time when the service will be needed.

2. Idle capacity problems might also be solved through regional planning

and cooperative arrangements between towns.
3. Municipal collection costs can be diminished by encouraging cluster

development through zoning and planned unit development. Statutes requiring
new subdivisions (if large enough) to provide their own phy sical- chemical

treatment facilities may also be feasible.

4. In the long run the integration of planning and growth strategies,

determined on a regional basis, should be realized. In this manner a desirable

environment will be preserved with the least impact on municipal finances.

TRANSPORTATION

Continuing population growth, more stringent environmental control

measures and ongoing reliance on the metropolitan region for Jobs indicate

that the community is likely to face longer travel times and more inconvenience

unless mass transit is drastically improved. Improving bus service is an
obvious beginning. A demand model for water transportation indicates the
feasibility of service between Hingham and Boston, especially if subsidies or

off-peak hour markets are available. Reactivating the abandoned railroad line

146 SUMMARY AND RECOMMENDATIONS

through Hingham, Cohasset and Scituate is a less attractive alternative

because of residential development along the right-of-way and desirability of

the land as a linear park. Finally, there is the possibility of new highway con-

struction, although funding has been severely diminished,and in many instances

such construction would be counterproductive, as it would only lead to new

development. Nevertheless, there are limited options, such as bypassing

Route 228 and expanding Route 3A, which deserve engineering analysis.

Recommendations:

1. Efforts should be made to reduce automobile use between the South

Shore and Boston, particularly by the single driver. Short-term solutions may

lie in state mandated reductions in metropolitan parking spaces and special

tolls for single drivers. In the long term, communities should adopt develop-

ment patterns such as clustering residences to facilitate mass transit.

2. To meet demand and potential conditions of overcrowding, incon-

veniences and decreasing levels of service, it is recommended that the town

selectmen approach the MBTA and private carriers for improvements in the
available transit service. In particular, the selectmen should approach the

MBTA for extension of direct bus service to the Quincy Center terminus.

Additionally, the communties should examine the possibility of providing their

own public transportation as prescribed under Chapter 159B of the Massachu-

setts General Laws.

3. To test the potential market for a communter boat, a demonstration

project should be undertaken over a three month period between Hingham ship-
yard and Rowe's Wharf and Long Wharf, Boston, utilizing a hoverferry. Further-

more, a study should be undertaken to examine the transportation system

requirements for supplementing commuter use of the service with recreational

use within Boston Harbor.

4. To preserve the high-speed operating characteristics of Route 3A

south of the Summer Street-3A rotary, the towns of Cohasset and Scituate should
limit the number of access roads which may be planned to intercept 3A by limit-

Coastal Recreation 147

ing development along the right-of-way. Furthermore, the improvement of key
intersections will be imperative in maintaining high-speed operating character-

istics.

5. Unless summer boat service is an overwhelming success, the

Nantasket traffic situation will continue to worsen. Upgrading the highway
system, or providing parking near Route 3A and shuttle busses appear to be the

only solutions. It seems that highway improvements alone along Route 228 will

not solve the traffic problem and the selectmen of Hingham and Hull should

support, in principle, a by-pass road to- connect Nantasket with Route 3.

COASTAL RECREATION

In Massachusetts, public rights to use the seashore are narrowly cir-

cumscribed. Private beachfronts. are not "commons" to swim from, sunbath on,

or walk across. This judicial vigilance can, at least in part, be attributed to

the principles of the equitable estoppel. Ever since colonial times, the state
has represented that title to the beaches belongs to littoral (adjacent upland)
owner, subject only to the few enumerated public rights (fishing, fowling, and
navigation) . Reliance on the representation has taken the form of substantial

investment in homes. Opening up the beaches would adversely affect the
value and desirability of these homes, and therefore the state is estopped

from expanding public use.

Even in areas that have traditionally been open to the public, courts

will rarely declare public rights without an explicit dedication on the part of

the owner. The situation is almost as bad for nonresidents at public beaches.

They are often denied parking privileges, or even outrightly prohibited from

using these "municipal" resources.

Recommendations:

1. State and federal proposals to open private beaches in the form of

"rules of evidence" deserve careful consideration. They may have the bad
side effect of making private beach owners more vigilant, but they may also

148 SUMMARY AND RECOMMENDATIONS

be beneficial to the study area by allowing the towns to lay claim to areas
that have been traditionally open to the public. Vindication of public rights in

these areas differs from creating a general right of passage in that private
littoral owners have not relied on representations on the part of the state that
the flats belong to them, bit rather they have been faced with the opposite -- a
long standing assertion of public rights. rurthermore their acquiescence in
public use negates any reliance factor that is traditionally necessary to "estop"

state interference with private rights.

2. Because the population of southeastern Massachusetts will continue

to grow, there will be increasing demand for recreational space. Given the

strong trend towards equality, a privilege to enjoy the coastal recreation areas
based on residency will become harder and harder for the majority of Massachu-

setts residents to swallow. It is nearly inevitable that municipal beach

exclusion will be prohibited by legislation.
In the long run greater access to coastline may be in the best interest of
the study area because the future economic strength of the four communities
lies in resort and recreation markets (tourist retailing, marinas, convention
centers, resort entertainment, etc.). Any effective action, however, must

include an orderly expansion of facilities while preserving the environment

which has been the essence of the area's desirability. Coastal towns should

begin to assess the present capacities of their beaches, the possibilities for
expansion (with state funds) and methods of traffic control (i.e. park-and-ride
ferries). With this data, the communities of the study area will be in a far
better position to negotiate a regional recreation plan that will finance

coastal improvements and shift demand from the densely developed South Shore

to alternatives such as the Boston Harbor Islands.

APPENDICES

Notes for Chapter I APPENDIX 1 151

1. For further information on geological landforms see Vol. 1, Department of
Natural Resources, Massachusetts Outdoor Recreation Plan (1971)

2. Thoreau, Cape Cod 4 (1866)

3. For further historic information see Mathews, The Naming of Hull (1905);
Hingham Tercentennial Commission, History of Hingham (1935);
Cohasset League of Women Voters, Cohasset Through the Spyglass (1964);
Pratt, The Early Planters of Scituate (1929); Bigelow, History of Cohasset
(1898), Deane History of Scituate (183 1); Garrott, The Pilgrim Shore (1900);
Eddy, Hingha (1885)

4. Rachlis and Marqusee, The Landlords 37-40 (1973)

5. Ibid.

6. For the purpose of Figure 1-3, 'Economic Base' includes commercial,
industrial and extractive activities; disposal sites; and transportation
systems such as port and dock facilities and freight or storage yards.
'Infrastructure' includes municipal buildings and parcels devoted to such
diverse activities as water supply pumping, churches, and military in-
stallations. In addition, it includes schools, playgrounds, and open
space recreation areas such as beaches. Forest reservations and wooded
parks are, however, not included.

7. The data for Table 1-12 are a further breakdown of the percentages of
residential acreage as previously described in Figure 1-3. Note that
the figure indicates that 65 percent of the study area's residential land
is occupied by small lot homes and that this is not the same as saying
65 percent of the study area's homes are on small lots. The number of
homes will be greater than 65 percent.

8. Telephone interviews with local housing authority officials indicated that
- the bulk of public housing was for the elderly (Hingham: 62 units; Hull:
40 units; Scituate: 128 units; Cohasset: 0 units). Hull also had 28 units
of rental subsidy housing built under an early Veterans' Administration
Program, and Scituate had 26 units of rental assistance housing built un-
der Ch. 12 1 B, s. 42 of the General Laws. None of the communities
appear to have taken advantage of the Federal Scattered Site Rental As-
sistance Programs.

9. Hull Redevelopment Authority, The Urban Renewal Plan_ (19 69)

10. Paul Weir Associates, Future Land Use and Transportation Plan
(Summary Report to the Hull Planning Board 1973)

152 APPENDIX I Notes for Chapter I

11. Devanney, Derbis, Seifert and Wood, Economic Factors in the Develop
ment of a Coastal Zone (Sea Grant Project Office, MIT, Cambridge, Ma.
(1970)

Notes for Chapter 2 APPENDIX 1 153

1. For a comprehensive discussion using this approach, see Cutler,
Legal and Illegal Methods for Controlling Growth on the Urban Fringe,
1961 Wisc. L. Rev. 370

2. See Lionshead Lake Inc. v. Wayne Township, 10 N.J. 165,
89A 2d 693 (1952). See also Haar, Zoning for Minimum Standards:
the Wayne Township Case, 66 Harv. L. Rev. 1051 (1953); Noran &
Horrack, How Small a House -- Zoning for Minimum Space Standards
6 7 Harv. L. Rev. 9 6 7 (19 54); Haar, Zoning for Whom ? -- In Brief
Reply 67 Harv.L . Rev. 986 (1954)

3. M.G.L. Ch. 40 s.2 (St. 1959, C. 607 s.1) It should be noted that by
giving communities the power to require new homes to be built with
at least 768 square feet of floor area, the legislature has implicitly
given communities the power to ban the standard 720 square foot
mobile home.

4. M.G.L. Ch. 111 s. 127A (St. 1965 c. 898)

5. Petaluma v. Construction Industry Association, 522 F. 2d 897 (9th cir
1975) rev'q Construction Industry Association v. Petaluma, 375 F. Supp.
574 (N.D. Cal 1974); Golden v. Planning Bd, 30 NY 2d 359, 285 N.E.
2d 291, 334 NYS 2d 138 appeal dismissed, 409 US 1003 (1971). See also
Bosselman, Can Ramapo Pass a Law to Bind the World 1 Fl. St. L. Rev.
234 (1973); Comment, the Limits to Permissible Exclusion in Fiscal
Zoning 53 B.U.L. Rev. 453 (1973).

6. Cora v. Town of Arlingto , 1975 Mass. Ad. Sh. 1753, 329 N.E. 2d
733 (two years is not an unreasonable length of time to withhold
apartment building permits while the town undertakes and completes
a thorough review of its comprehensive plan). See also Miller v.
Bd. of Public Works of Los An_qeles , 195 Cal. 477, 234 P. 381 (1925)
appeal dismissed 273 U.S. 781 (1925)_af. Steel Hill Dev. Inc. v.
Sanbornton 469 F. 2d 956 (Ist Cir. 1972) (6 acre holding zones
approved to give town time to draw up comprehensive plan).

7. 311 Mass. 560, 42 N.E. 2d 516 (1942).

8. 311 Mass. at 565-566, 42 N.E. 2d at 519.

9. 364 Mass. 598, 195 N.E. 2d 341 (1964).

10. There are some indications that the Sharon Court saw the 2.3 acre zone
as an attempt to reserve future conservation and recreation land and
thus held that preserving open space cannot be achieved by zoning but
rather can only be achieved by condemnation or purchase.

154 APPENDIX I Notes for Chapter 2

11. 1975 Mass App. Ad. Sch. 643, 326 N.E. 2d 922.

12. An unanswered question is how long Sherborn can expect to remain
in this pristine state, a scant 25 miles from Boston and within the
path of Metropolitan expansion. Also unanswered is why Sherborn
couldn't install sewers through special districting or assessments.
Compare, Nat'l Land Irrj. Co. v. Cohn 419 Pa. 504, 215 A.2d. 597 (1965);
Appeal of Girth 437 Pa. 237, 263 A.2d 395 (1970), where the Penn-
sylvania courts suggested that towns in the path of urban development
have a duty to install sewers.

13. See Babcock and Bosselman, Suburban Zoning and the Apartment Boom
111 U. Pa. L. Rev. 1040 (1963), Rosenthal, the Suburban Apartment Boom
Suburbia in Transition (Masotti ed. New York 1974)

14. Metropolitan Area Planning Council, Residential Zoning in the MAPC
Region p. 12 (1972).

15. Brett v. Bldg Comm'r 250 Mass 73, 145 NE. 269 (1924);
Bamel v. Bldg. Comm'r, 250 Mass 82, 145 NE 272 (1924).

16. Village of Euclid v. Ambler Reality, 272 U.S. 365 (1926).
In sustaining the exclusion of multi-family homes from certain
Districts of the village of Euclid, Justic Sutherland made this
vehement comment in passing.

With particular reference to apartment
houses, it is pointed out that the development of de-
tached house sections is greatly retarded by the coming
of apartment houses, which has sometimes resulted in
destroying the entire section for private house purposes;
that in such sections very often the apartment house is
a mere parasite, constructed in order to take advantage
of the open spaces and attractive surroundings created
by the residential character of the district. Moreover,
the coming of one apartment house is followed by others,
interfering by their height and bulk with the free circu-
lation of air and monopolizing the rays of the sun which
otherwise would fall upon the smaller homes, and bring
ing, as their necessary accompaniments, the disturbing
noises incident to increased traffic and business, and the
occupation, by means of moving and parked automobiles,
of larger portions of the streets, thus detracting from their
safety and depriving children of the privilege of quiet and
open spaces for play, enjoyed by those in more favored
localities, -until, finally, the residential character of the

Notes for Chapter 2 APPENDIX 1 155

neighborhood and its desirability as a place of detached
residences are utterly destroyed.

17. 416 U.S. 1 (1974)

18. Granby v. Landry 341 Mass 443, 170 NE 2d 364 (1960)

19. M.G.L. Ch. 140 ss. 32 A-L

20. 343 Mass 591, 180 NE 2d 33, 96 ALR 2d 226 (1962).

21. Bartke and Gage, Mobile Homes Zoning and Taxation 55
Cornell L. Quarterly 499 (1969);
Manchester v. Phillips, supra note 19; Marblehead v. Gilbert 334 Mass
602 137 NE 2d 921 (1956)

22. Zoning for multi-family dwellings as a matter of right was proposed
for the driftway area of Scituate in Downe, Multi-Family Housin
Study Scituate Massachusetts (1962). On the other hand, the proposed
rezoning of Hull would cut back on both density and amount of land
zoned for multi-family dwellings. In effect it would reduce the
number of apartments that could be built by 75 percent. See, Proposed
Zoning for Hull Massachusetts (1975).

23. Residential Zoning, supra, note 14

24. Suburban Zoning, supra, note 13

25. The proposed Hull Bedroom restriction reads as follows:

D. Residential C District (R-C)
1. Uses permitted by right:
a. Low-rise multi-family residential
not to exceed 2 1/2 stories or 35 feet
height, whichever is less; and not to
exceed six rooms, excluding bath or
half-bath rooms, per dwelling unit,
of which two rooms may be bedrooms
for up to one-half of the dwelling
units on any lot, and for the remaining
dwelling units on the lot, one room may
be a bedroom.

26. Southern Burlington County NAACP v. Mt. Laurel 336 A 2d 713 (1975)
Aff'g in pa 290 A 2d 465 (1972) App. dismissed

156 APPENDIX I Notes for Chapter 2

42 3 U. S. 80 8: Molino v. Mayor and Council of Gla s s boro 116 N. J.
Sup. 195 281 A 2d 401 (Law Div. 1971)

27. Weirs, Growth or No Growth for Hull (Planning Study submitted to the
Selectmen and Planning Board June 6, 1974)

28. Cf. 122 Main St. Corp. v. Brockton 323 Mass 646, 84 NE 2d 13 (1949)

29. Cf. Caires v. Building Comm'r 323 Mass 589, 83 NE 2d 550 (1949)

30. Cf. Cross v. Planning B 345 Mass 618, 189 NE 2d 189 (1963)

31. In the Simon case (supra note 6) the court, after hearing evidence that
smaller homes would have less value and therefore raise municipal
tax rates, remarked that municipal finance "might be considered as
an element more or less incidentally involved" in zoning, 311 Mass
at 565 42 NE 2d at 519. Likewise, the Manchester court (supra note
19) concluded that a town which prohibited mobile homes could do so
for the purpose of protecting the values of adjacent conventional single
family homes. These statements, however, must be weighed in light
of the admonishment of the Simon case; zoning cannot prohibit the
thrifty merely to protect the values of existing large estates.

32. 416 U.S. I ( 19 74) rev'g Borass V. Belle Terre 475 F 2d 806 (2d cir.
1973)

33. In City of White Plains v. Feraioli 313 NE 2d 756 (1974), the highest
state court in New York refused to extend a "3 unrelated individuals"
prohibition identical to Belle Terre's to group homes for neglected or
abandoned children. The New York court distinguished Belle Terre as a
case dealing with "termporary living arrangements" for college students.

34. Skinner v. Oklahoma 3 16 U.S. 53 5 (1942)

35. Shapiro v. Thompson 3 94 U. S. 618 (19 69); Cole v. Housing Authority
435 F 2d 807 (1st cir. 1970)

36. Village of Euclid v. Ambler Realty C ., 272 U.S. (1926)

37. Ambler Realty v. Village of Euclid, 297 F 307 (6th cir. 1924)

38. Newton v. Cambrid2e, 2 77 U.S. 183 (192 8); Village of Belle Terre v._
Borass , supra note 32

39. Steel Hill v. Sanborne 469 F 2d 956 (1972) (6 acre lots approved)

Notes for Chapter 2 APPENDIX 1 157

40. United Farmworkers of Florida Housing Project Inc. v. City of
Delray Beach, 493 F 2d 799 (5th cir 1974) (racially discriminatory
refusal to allow tie-in to sewer system); Parkview Heights Corp.
y. City of Blackjack, 467 F 2d 1208 (8th cir 1972) (racially motivated
incorporation and zoning); Crow v. Brown 457 F 2d 788 (5th cir 1971)
aff'g 332 F. supp 382 (NDGA 1971) (racially discriminatory denial
of special permit); Kennedy Park Home Assn v. City of Lackawanna,
436 F 2d 108 (2nd cir 1970) cert. denied 401 U.S. 1010 (1971)
(long history of racial segregation and discriminatory denial of
subdivision approval); Dailey v. City of Lawton, 42 5 F 2d 103 7
(10th cir 1970) (racially discriminatory denial of special permit).

41. Warth v. Seldin, slip decision no. 73-2034, 43 USLW 4906 (June 25,
1975)

42. Slip decision at 4, 43 USLW at 4907

43. Id. at 12, 43 USLW at 4910

44. Id. at 17, 43 USLW at 4911

45. Id. at 22, 43 USLW at 4913

46. Id. at 25, 43 USLW at 4914 , compare the Blackjack case, supra note
40, where both the corporation forming for the specific project and
the corporation furnishing "seed money" had standing to raise 13th
and 14th amendment claims of discrimination against future low and
moderate income tenants. In the Blackjack case the land had been
acquired and architectural and engineering plans completed.

47. Id. Brennan's dissent at 4-5, 43 USLW at 4916

48. Id. Douglas' dissent at 2, 43 USLW at 4915

49. Southern Burlington Co NAACP v. Mt. Laurel, supra, note 26.

50. Williams, Mt. Laurel: A Major Transition in American Planning Law
Vol. 27 No. 6 Land Use and Zoning Diges 33 (1975)

51. Camden Civil Rights Mini sterim-Neighborhood Groups Coalition v.
Nardi Civil No. 1128 - 70 (DNJ October 11, 1972).

158 APPENDIX I Notes for Chapter 2

52. By grounding his decision in the New Jersey Constitution, justice Hall
effectively shut the door to federal, court or state legislative inter-
vention. The Town's petition for certionari was subsequently
denied by the U.S. Supreme Court.

53. Mt. Laurel supra note 25, 336 A2d at 713, fn. 3; see generally Scott,
"'Sic Utere. . .' to the regional general welfare,' Vol 27, No. 6 Land
Use and Zoning Diges 27 (1975)

54. The court cited for comparison the National Land case, supra note 11.

55. See Rose, Mt. Laurel: It is based on Wishful Thinking, Vol. 27 No. 6
Eand Use and Zoning Diges 18 (1975)

56. The court did not define region except to say that confinement of a
region to a county did not appear realistic. Perhaps further clarifica-
tion will come from Oakwood At Madison Inc. v. Madison Township.,
117 N.J. Sup. 11, 283 A 2d 353 (1974) N.J. Appea docketed. In
Madison the trial court defined region as the area from which in view
of available employment and transportation the population of the
township would be drawn absent invalidly exclusionary zoning.

57. Bosselman, The Quiet Revolution in Land Use Control 164 (1970);
Rodgers, Snob Zoning in Massachusetts 1970 Ann. Sury. Mass. Law 487;
Comment, Exclusionary Zoning, A Legislative Approach 22 Syracuse L.
Review 583 (1971); 7 Harv. 1. Legis. 246 (1970); Note, the Massa-
chusetts Zoning Appeals Law: First Breach in the Exclusionary Wall,
54 B.U.L. Rev. 37 (1974).

58. M.G.L. Ch. 40B ss. 20-23.

59. 1973 Mass Adv. Sh. 491, 294 N.E. 2d 393 (1973)

60. Id at 532, NE 2d at 424

61. Pending the outcome of this case 20 appeals had been stayed by the
Department of Community Affairs. Some developments had been
stalled for 4 years.

62. M.G.L. Ch. 40B ss. 22, 23

63. The committee is composed of five uncompensated members.
Three members are appointed by the Commissioner of DCA and two are
local officials appointed by the Governor. This make-up of the
committee hopefully provides for a state-local balance.

Notes for Chapter 2 APPENDIX 1 159

64. M.G.L. Ch. 40B s.20 (the term "reasonable" is redundant. A
decision is reasonable if and only if it is consistent with local needs)
1973 Mass Adv. Sh. at 514, n. 17, 294 N.E 2d at 413 n. 17).

65. The Statute provides three quotas: if low and moderate income housing
accounts for 10 percent or more of the locality's housing as reported
by last federal census, or if low and moderate income housing
comprise 1. 5 percent or more of the land zoned residential, commercial
and agricultural, or if the permit would lead to construction of low
and moderate income housing on three tenths of one percent of the
privately owned zoned land or 10 acres of such land in one calendar
year, then the town is exempt from the state review process.

66. Planning Office for Urban Affairs v. Scituate Board of Appeals, decision
of the Housing Appeals Committee (March 14, 1975).

67. Brenner, Review of Legislation on Land Use and Development Planning,
Vol. 2 Proceedings of the Land Use Subcommittee of the Specia
Commission of the Effects of Growth Patterns on the Quality of Life in
Massachusetts, p. 77 State House Printing Office (1975)

68. Id.

69. Eisenmenger et al, Needed: a New Tax Structure for Massachusetts,
1975 New Eng. Econ. Rev. 3; Eisenmenger et al, Options for Fiscal
Reform. (Research Report No. 57, Federal Reserve Board of Boston 1975)

70. Sudbury v. Comm'r of Corp , 1974 Mass Ad. Sh. 2405, 321 NE 2d 641;
Shopper's world v. Framingham, 341 Mass. 366, 203 N.E. 2d 811 (1965);
Coan v. Beverly, 349 Mass. 575, 211 N.E. 2d 50 (1965).

71. Wheaton, The Statewide Impact of Full Property Revaluation in
Massachusetts (Special Study Federal Reserve Bank of Boston 1975).
Professor Wheaton, an economist at M.I.T. , forecasts an average
rise in home property taxes of 16 percent. It is doubtful that the
study area would be effected this drastically because of low industrial
capacity and the presently high valuation.

72. For the rise in business activity in suburbia, see Mass. Div. of
Employment Security, Massachusetts Cities and Towns -- Employment
and Wages in Establishments subject to the Massachusetts Employment
Security Law by Major Industrial Divisions 1967-1973, (1974)

73. See generally, Downs, Opening up the Suburbs (1973)

160 APPENDIX I Notes on Chapter 2

74. See generally, Suburbia in Transition, supra, note 13.

75. Personal income taxes consume 2.8 percent of a Massachusetts
resident's income as compared to a U.S. average of 1. 5 percent.
U.S. Bureau of the Census, Government Finances in 1972-73
Table 18, pp. 34-38, and State Tax Collections In 1973, Table 6,
p 10 (1973)

76. Eisenmenger, Needed: A New Tax Structure for Massachusetts and
Options for Fiscal Reform, supra, note 69.

77. The formula would be similar to the present equalizing grant program
which distributes lottery proceeds. For a more detailed discussion
of alternative distribution formula, see, Options for Fiscal Reform,
supra, note 69 at 123-134.

78. Some of the unresolved factors are the choice of distribution formula,
the constitutionality of graduating the income tax by reducing Federal
tax exemptions at higher income levels and the amount of state
mandated tax abatements.

79. The target expenditure would be $1,000 per pupil. Any locality now
spending less than $1,000 per pupil would receive what it is now
spending plus half the difference between that amount and the $1,000
target. If a municipality is now spending over $1,000, it would receive
$1,000 plus one-half of the difference between the target and its
expenditures.

80. The " 0. 2 children per unit" figure was derived from Downe, Multi-
Family Housing Study Scituate Mass.(1972); for a more complex
analysis reaching the same result see Dept. of Community Affairs,
Scituate Town Report (1974).

81. Real Estate Research Corp. , The Costs of Sprawl (U.S. Gov't Printing
Office 1974).

82. Keene, Wbat's the Next Step after Mt. Laurel, vol. 27 no. 6 Land Use
and Zoning Digest 25 (1975).

83. For example, the tale of"... a foolish man, who built his house upon
the sand: and the rain descended, and the floods came, and the wind
blew and beat upon that house; and it fell and great was the fall of it"
(Matt VII: 26-27).

84. M- G. L. Ch. 131 s. 40 The current law was created by a combination
and amendment of the Hatch and Jones Acts in 1972. For a general

Notes on Chapter 2 APPENDIX 1 161

discussion of the prior Acts see Metropolitan Area Planning Council,
vol. 4 Open Space and Recreation Program for Metropolitan Boston
pp. 42-52 (1969)

85. The protected land and water areas are:
..any bank, beach, dune, flat, marsh, meadow or swamp
bordering on the ocean or on any estuary, creek, river,
stream, pond, or lake, or any land under said waters or
any land subject to tidal action, coastal storm flowage,
or flooding. "

86. "If after said hearing the conservation commission,
selectmen or mayor, as the case may be, determine
that the area on which the proposed work is to be done
is significant to public or private water supply, to the
ground water supply, to flood control, to storm drainage
prevention, to prevention of pollution, to protection of
land containing shellfish, or to the protection of fisheries

87. "Any person aggrieved by an order issued after such
hearing, or any owner of land abutting the land upon
which the proposed work is to be done, or any ten
residents of the city or town where such land is located
may (appeal). "

88. Dawson, Open Space and Recreation Plan for Metropolitan Boston
Vol. 4. Open Space Law Supplement (1972).

89. M.G.L. Ch. 21 s. 17B (St. 1971 ch. 840).

90. M. G. L. Ch. 40 s. 2 (St. 19 54 Ch. 3 68 x. 2).

91. 24 USC 1909 et sea

92. See e.g., Paddock v. Brookline, 347 Mass 230 (1964).

93. Mass. Const. , Art. of Amend. II, s. 1 (1966)

94. Id. s. 6.

95. By section 8 the following powers were reserved to the legislature:
1) regulation of elections, 2) assessment and collection of taxes,
3) borrowing or pledging credit, 4) disposal of park land, 5) enact-
ment of private or civil law governing civil relationships except
as incidental to the exercise of an independent municipal power,
6) enactment or punishment of felonies or imposition of imprisonment.

162 APPENDIX I Notes on Chapter 2

96. 1973 Mass. Adv. Sh. 291, 293 NE 2d 268
(establishments of a local human rights commission not pre-empted
by existance of state commission).

97. Id.at 309, 310 fn. 16, 293 NE 2d at 281 fn 16

98. 1973 Mass Ad Sh 491, 294 NE 2d 393 (1973)
(discussed supra notes 59-65 and accompaning text)

99. ". . . nor shall private property be taken for public use without
just compensation"

100. Bosselman, The Taking Issue pp. 99-104 (U.S. Gov't Printing Office
1973)

101. Id,at 85, 106

102. 123 U.S. 623 (1887)

103. Id.at 667

104. 260 U.S. 393 (1922)

105. Id.at 415, 416

106. Heyman, Innovative Land Regulation and Comprehensive Planning
The New Zonin (Marcus and Groves ed) at 44-52 (1970)

107. Sax, Takings and the Police Power 74 Yale L. f. 36 (1964)

108. Heyman, supra, note 106 at 54.

109. Sax, Takings, Public Rights and Private Property 81 Yale L.J. 149 (1971)

110. Bosselman, supra, note 100 at 212-235

111. 349 Mass 104, 206 NE 2d 666 (1965); see also Ryckman,
Evidence Necessary to Determine if a Regulation Restricting the use
of Property is invalid as a Taking without Compensation, 6 Nat. Res.
J. 8 (1966).

112. 349 Mass 104, 111-112, 206 NE 2d 66, 671-72

113. Foster, ComLn'r of Natural Resources v. s. Volpe & Co. , Finding, Ruling
and Order of Horace T. Cahill, judge, Suffolk Superior Court in Equity
No. 82036, March 9, 1964.

Notes on Chapter 2 APPENDIX 1 163

114. 1972 Mass Ad Sh 1303, 284 NE 2d 891, cert. denied 409 U.S. 1108.

115. Id at 1314-15, 284 NE 2d at 899-900

116. Compare the Wisconsin Court's opinion in a similar shoreline zoning
case, just v. Marinette County 5 Wi sc. 2d 7, 2 01 NW2 6 7 61 (19 72):

An owner of land has not absolute and unlimited right to
change the essential natural character of his land so as
to use it for a purpose for which it was unsuited in its
natural state and which injures the rights of thers. The
exercise of the police power in zoning must be reasonable
andwe think it is not an unreasonable exercise of that
power to prevent harm to public rights by limiting the use
of private property to its natural uses.

117. 1976 Mass Ad. Sh. 143 (MacGibbon III). The Duxbury litigation had
a colorful history which stretched nearly two decades with three
hearings before the Supreme judicial Court, see also,
MacGibbon v. Duxbu , 347 Mass 690 (1964) (Mac Gibbon I
MacGibbon v. Duxbury, 356 Mass 635 (1970) (Mac Gibbon II).

118. The Court's opinion on this point states:

We accept the judge's finding that the board's denial
of the permit was not solely to preserve the area in its
natural state, but we think his conslusion that there are
practical uses to which the property can be put misconceives
the applicable standard. The possible uses found,
for agriculture and recreation, do not appear to be
,.practical" in the sense used in MacGibbon II. As one of
the board's experts testified, "the uses to which the
property may be put include -- some of these may sound
facetious, but they're not -- bird watching, hiking --
these are actual uses that people have, to make of such
properties, similiar properties -- looking at the water,
* , *just simple pride of ownership, just to say that they
own a piece of the salt marsh, flying model airplanes or
kites, growing marsh hay, which at one time was a very
strong use of the marsh, very prevalent use I should say,
to protect the view.... Of course, one, obviously is
conservation. "
We conclude that the preservation of the ocean food
chain and other public benefits of the land in its natural
state did not provide a legally tenable ground for denying
the permit...

164 APPENDIX I Notes on Chapter 2

119. M.G. L. Ch. 40A s. 5

120. Opinion of the justiceg., 234 Mass 597, 606 (1920)

121. American Law Institute, Model Land Development Code, Art 5
(Tentative Draft #4, April 25, 1972).

122. Constonis, Development Rights Transfer: Easing the Police Power
Eminent Domain Deadlock, 26 Land Use and Zoning Digest 6 (1974);
Chavooshian & Norman, Transfer of Development Rights, A New
Concept in Land Use Management 32 Urban Land 11 (Dec. 1973);
Charmichael, Transferable Development Rights as a Basis for Land
Use Control 2 Fla St. U. L. Rev. 35 (19 74); Constonis, Space
Adrift -- Landmark Preservation aTd The Market Place (1974)
Constonis, The Chicago Plan: Incentive Zoning and the Preservation
of Urban Landmarks 85 Harv. L. Rev. 574 (1972); Constonis, Which-
ever Way You Slice it DRT is here to stay 40 Plannin 10 (1974);
Schlags, Who Pays for Transfer of Development Rights? 40 Plannin 7
(1974) Note, the unconstitutionality of transferable development
rights 84 Y21t_L.J. 1101 (1975)

123. M. G. L. Ch. 41 s. 81 Q (St 19 53, c 6 74 s. 7)

124. See e.g. Smith v. Bd. of App. of Fall River, 319 Mass 341, 65 NE 2d 547
(1946): Clark v. Bd. of App. of Newbury 348 Mass 407, 204 NE 2d 434
(1965).

125. See e.g. Gricus V. Supt. & InS2. of Bldg ., 345 Mass 687, 189 NE 2d
209 (1963); Forenza v. Arlington 349 Mass 428, 183 NE 2d 118 (1975)

126. Sylvania Electric Products Inc. v. Newton 344 Mass 428, 183 NE 2d 118
(1962).

Notes for Chapter 4 APPENDIX 1 165

1. See Figure 1-9. Data for the South Shore region reveal similar charac-
teristics. Of the 3 50, 000 residents living in the 14 communities of the
South Shore approximately 40,000 people or one-third of the work force
commutes to Boston. Within this segment, the South Shore Chamber
of Commerce estimates 17,000 people use some form of mass transit.

2. Level of service is a qualitative measure of operating conditions on a
road. For a fuller discussion see Transportation Research Board
Special Report 87, Highway Capacity Manual, 1965.

3. See Federal Register, Vol. 38, No. 215,(Nov. 8, 19731,

4. Wilbur Smith & Associates, An Access Oriented Parking Strateg
for the Metropolitan Area (Dept. of Public Works, p. 23 5, July 19 74).

5. Patriot Ledger, (July 10, 1975, p. 1).

6. Wilbur Smith, supra. n. 4

7. See generally, Curtis, F.A. , An Examination of Land and Water
Transportation Alternatives for Commuters South of Boston,
Environmental Engineers Thesis (Dept. of Civil Engineering, M.I.T. ,
Cambridge, Ma., 1976, in preparation).

8. Akiva, Ben, Structure of Passenger Travel Demand Models, Ph.D Thesis,
(Dept. of Civil Engineering, M. 1. T. , Cambridge, Mass. , 19 73).

9. Atherton, T. , Approaches for Transferring Disaggregated Travel
Demand Models, M. Sc. Thesis, (Dept. of Civil Engineering, M. 1. T. ,
Cambridge, Ma. , 1975).

Notes for Chapter 5 APPENDIX 1 167

1. Reprinted in full in an unpublished report on the Town of Cohasset by
Tohn Nolen, 1912, on file with the Nolen Memorial Collection at Rotch
Library, M.I.T. Cambridge, Massachusetts

2. See generally, Our Nation and the Sea, (U.S. Printing Office 1969);
Department of Natural Resources, Massachusetts outdoor Recreation
Plan, (State House Printing Office 1971)

3. Final Report of the Special Commission Established to Make an Investi-
gation and Study Relative to the Management, Operation, and Accessi-
bility of Public Beaches Along the Sea Coast and Other Related Matters
p 9. (State House Printing Office 1975)

4. House No. 481. (Massachusetts General Court, 1974)

5. In Re Opinion of the justices. 1974 Mass Ad. Sh. 1067, 313 NE 2d 561

6. Storer v. Freeman, 6 Ma s s 43 S (18 10)

7. The confiscation of wharves and warehouses as purpestures against
the crown's title and the selling of shore privileges to others certainly
angered wealthy littoral owners and appears to have played no small
part in the Grand Remonstrance and subsequent beheading of King Charles.
See, Parsons, Public and Private Rights in the Foreshore , 22 Col. L. Rev.
707, 711 (1922); Note, Water and Water Courses, 31 Mich. L. Rev. 1134
113 6 n. 4 (1933)

8. Weston v. Sampson 62 Mass (8 Cush.) 347 (1851)

9. Anthony v. Gifford 84 Mass (2 Allen) 547 (1869)

10. 195 Mass 79, 80 NE 688 (1907). The court was strongly influenced by
two English decisions that also refused to recognize a public right to
bath: Blundell v. Caterall 5 B. &Ald 3 68, 10 6 Eng. Rep. 1190 (K. B. 182 1)
Brinkman v. Matley 2 Ch. 313 (1904)

11. The lower court's opinion is also reported in 195 Mass at 79-81

12. 195 Mass 79 at 83. See e.g. Attorney General v. Herrick,
190 Mass 307 (1905)

13. City of Long Beach v. Mansell 3 Cal 3d 462, 493, 91 Cal Rptr 23,
45, 416 P. 2d 423, 445 (1970); see also Lefcoe, Land Development
Law 113 (1974)

168 APPENDIX I Notes on Chapter 5

14. HR. 10394, S. 2691 93rd Congress, Ist Session. See also Eckhardt,
A Rational National Policy on Public Use of the Beaches 24 Syracuse
L. Rev. 967 (1973); Black, Cons tiutionality of the Eckhardt Open
Beaches Law 74 Colp. L. Rev. page 301 (1974)

15. Barney v. City of Keokuk 94 U.S. 324, 338 (1876)

16. Final Repor supra n. 3 Appendix A

17. Ivons-Nispel, Inc. v. Lowe, 347 Mass 337 (1964)

18. Ibid.

19. See "Beach Access -- A Critical Issue for the South Shore" South
Shore Mirror p. 16 (Wed.., June 11. 1975); "Bill Seeks Beachland
for Public" Boston Globe p. 25, 37 (Sun. June 29, 1975); "Beach
Access -- There's Less of it Here Than Anywhere Else"
The South of Boston Mirror Summer Magazine, pp 10-13 (1975)

20. e.g. "Family Challenges Town Beach Claim" The Patriot Ledger
p. 10 ( on. , June 16. 1975); "Board Insists Town owns T. St. Beach"
The Patriot Ledger p 35 (Wed, June 18, 1975)

21. Massachusetts might consider the Swedish "Allemansratt" (All Man's
Right) as an alternative. This right of way prerogative, which is based
on ancient Swedish custom, gives every person a right to pass over
land without the. p ermi s sion of the owner so long as it is done without
causing appreciable material damage or disturbing the privacy of the
home. See National Board of Urban Planning, Physical Planning in Sweden
(Axel, Abrahamsons, Boktryckeri, Karskrona, 1972) pp 9-10. See also,
Lefcoe, An Introduction to American Land Law IGI 91974)

22. Metropolitan Area Planning Council, Open Space and Recreation
Program for Metropolitan Boston, (19 69)

23. "Beach Parking Being Studied" The Patriot Ledger (June 6, 1975)

24. "Beach Parking Overseeing Backed" The Patriot Ledger (July 24, 1975)

25. M.G.L.A. ch 45 s.l.; Final ReportA Supra. n. 3 at 62

26. See generally.Note, The Public Trust in Tidal Areas: A Sometimes
Submerged Traditional Doctrine, 79 Yale L.T. 762 (1969)

27. Borough of Neptune City v. Borough of Avon-by -the- City, 61 N.J. 296,
308-309 , 294 A. 2d 47 (1972)

Notes on Chapter 5 APPENDIX 1 169

28. Gewirtz v. City of Long Beach, 69 Misc. 2d 763, 330 N.Y.S. 2d 49S
Sup. Ct. , Nassau Co. 1972)

29. Cf. Gould v. Greylock Reservation Commission, 350 Mass 410 (1966);
see generally, Sax, The Public Trust Doctrine in Natural Resource Law:
Effective judicial Intervention, 68 Mich. L. Rev. 475 (1969)

30. Final Report, supra. n. 3 at 69

31. M.G.L. , ch 40 ss. 5 (clause 2SA), 11A, 12B, 12C, 21

32. Burton v. Wilmington Parking Authority 365, U.S. 715 (1961);
Black, Foreword: "State Action," Equal Protection and California
Proposition 14, 81 Harv. L. Rev. 69 (1967); Note, Access to Public
Municipal Beaches: The Formation of a Comprehensive Legal Approach,
4 Suffolk L. Rev. 936 (1973)

33. Final Report, supra. n. 3 Appendix B

34. See, "Harbor Islands Development Urged" Patriot Ledger (Feb. 5, 1975)

List of Figures APPENDIX 11 171

LIST OF FIGURES

Chapter I

1-1 Geographic Features, 4
1-2 Unemployment 1974-1975, 23
1-3 Present Land Use, 25
1-4 Protected Conservation Areas, 30
1-5 Population Forecasts, 33

Chapter 2
2-1 Residential Zoning of the Study Area, 41
2-2 Residential Patterns, 42

Chapter 3

3-1 Population Growth and Water Treatment Capacity
versus Time, 82

Chapter 4
4-1 Study Area and Road Network, 93
4-2 South Shore Area: Commuter Routes and Peak Hour
Traffic Volume, 95
4-3 Publicly and Privately Owned Transportation
Service Routes, 98
4-4 Experimental Commuter Boat Route, 1975, 103
4-5 Proposed Commuter and Off-Peak Boat Routes, 103
4-6 Survey Grid for Demand Model, 105
4-7 Cascading Demand Model Structures for the Coastal
Communities, 107
4-8 Existing Work Trip Mode to Government Center,
Boston -- Split Percentages, 113
4-9 Predicted Work Trip Mode to Government Center,
Boston -- Split Percentages Based on
Cascading Demand Model of Figure 4-7, 113
4-10 Predicted Total Demand Curves for Hoverferry
Users from All Towns to All Destinations
Under Four Policy Alternatives, 114
4-11 Old Colony Railroad Greenbush Route, 116

Chapter 5
5-1 Proposed State and Regional Recreation Sites, 130

List of Tables APPENDIX I I 1 173

LIST OF TABLES

Chapter 1

1-1 Population Growth, 8
1-2 Building Permits for New Homes, 8
1-3 Age of Housing, 9
1-4 1970 Population - Age Distribution, 12
1-5 1970 Income of Families and Unrelated Individuals, 14
1-6 Poverty Indicators, 15
1-7 Occupational Distribution, 18
1-8 Employment Patterns, 19
1-9 Local Employment, 20
1-10 Industrial Patterns 1967-73, 21
1-11 Miscellaneous Employment Data, 22
1-12 Lot Sizes, 26
1-13 General Housing Characteristics, 27
1-14 Characteristics of Owner Occupied Homes, 28
1-15 Characteristics of Rental Housing, 29
1-16 Major Public and Quasi Public Land Holdings, 31

Chapter 2

2-1 Provisions for Mobile Homes and Multi-Family
Housing in the Study Area, 45
2-2 Tax Rates and Assessments, 57
2-3 Cost Comparisons for Single-Family Detached
Homes versus Multi-Family Housing, 60
2-4 Comparison of Tax Revenues Generated Costs
and Revenues of Single- and Multi-Family
Housing, 60

Chapter 3

3-1 Wastewater Inventory, 81
3-2 Comparative Estimate of Collection and
Treatment Costs, 85
3-3 Expenditures for Sewer Construction, Town of
Scituate, 1965-1973, 86
3-4 1973 Debt Service on Sewer Bonds,
Town of Scituate, 87
3-5 Sewerage Construction Cost Index for Metro-
politan Boston, 87

174 APPENDIX I 11

LIST OF TABLES

(Continued)

Chapter 4

4-1 Bus Service, 102
4-2 Summary of Socio-Economic Variables Obtained
from the June 1975 Telephone Home Interview
Study, 108
4-3 Cost Variables: Origin to Boston Financial Area
and Return, 110
4-4 Time Variables: Origin to Boston Financial Area
and Return, 111

Chapter 5

5-1 Public Beach Data, 132

Flow Chart APPENDIX IV 175

FLOW CHART OF THE DISAGGREGATED DEMAND MODEL APPLICATION
TO PREDICT MODAL SHARE IN THE SOUTH SHORE

Input Data Sequences in Estimating Demand

Town; 1. Specify modal subroutines for
Destination; lating utility functions
Vectors of travel and i
socio-economic 2. Compute conditional probabilities by
characteristics; calling modal subroutines and apply
Model configuration multimodal logit model for a specified
behavioral choice configuration

3. Compute conditional probability for no
hoverferry case

4. Compute total modal share probabilities

5. Proceed to next observation until sa
is completed

6. Estimate present modal share
F7. Calculate statistics

late output

ad to next town

10. Introduce new policy altemative
@e
F, 1 - P-r-0C eed to new model configura tio@nl

Note: See rigure 4-7, page 107, for graphic illustration

CCASAL ROME
WGINAR76M CE AVER

Along a 70-mile stretch of the Atlantic Ocean lie Chapters 2 through 5 address four major problem
the Massachusetts communities of Hingham, Hull, areas that have resulted from the rapid suburbaniza-
Cohasset, and Scituate. Located in close proximity tion: growth controls, waste-water facilities,
to Boston, these four towns have been greatly af- transportation systems, and coastal recreation. The
fected by the post World War 11 suburbanization. approach taken has been to identify the nature of
Between 1940 and 1970 their combined population the problem, assess the present situation in terms
more than tripled (growth of 202 percent), while the of technical, economic and legal issues, and make
Metropolitan Boston area grew by a mere 17 per- recommendations for improvement. We make no
cent. This rapid growth has drawn the coastal com- pretense of having studied each facet exhaustively
munities, somewhat reluctantly, into a dependent or of offering unique solutions.
relationship with each other and the metropolitan
region. Roughly two-thirds of the wage earners de- Chapter 6 presents a summary,of specific recom-
pend on employment outside their town. In a mendations. Our goal has been to outline critical
similar.manner, the local residents rely on the issue areas and a number of policy alternatives that
region for most of their goods and services. In can be utilized by planners, legislators and citizens
return, each town offers itself as an enjoyable place in formulating the Massachusetts Coastal Zone
to live or vacation, although there is increasing Management Plan and the State Land Use Policy
pressure to stop or slow down the flow of Act.
newcomers.

The first waves of suburbanization have not been
gentle. Residential development and the adjunctive
needs of an increasing population have strained the
local infrastructure of roads, schools, and
municipal services and have greatly taxed the
natural resource base. Recently, as property
assessments rise and the last farms and forests
stand on the verge of subdivision, there are
anguished feelings that the character of these com-
munities is being lost. While it may be true that in
the past development has proceeded in a haphazard
manner, based on myopic principles and carried out
by fragmented planning authorities, the basic fact
is that the vast majority of residents are satisfied
with the existing quality of life. In fact, their main
concern seems to be keeping their communities
just the way they are. Most residents, however,
realize that changes are inevitable and are reconcil-
ed to the fact that the same pressures that created
the rapid suburbanization will continue to alter their
communities.

This study is concerned with problems and con-
flicts resulting from growth, regional izat ion, and
resource depletion in the coastal zone communities
of Hingham, Hull, Cohasset, and Scituate.

Chapter 1 of this report is intended to acquaint
the reader with the general characteristics of the
study area. The South Shore's geography and
history are briefly sketched, with an emphasis on
the post World War 11 development trends. Basic M.I.T SEA GRANT OFFICE
demographic data are presented and the economic ROOM 5-331 77 MASSACHUSETTS AVENUE
and natural resource bases detailed. Finally, the CAMBRIDGE, MA 02139
likelihood of continuing development pressure and
the impact of other factors are examined in the con- M.I.T. REPORT NUMBER MITSG 75-23
text of population projections. $5.00

3 6668 14101 4250