In real estate, land use, and environmental cases, experts can often make or break your case. Once hired, experts are usually involved at every stage of the litigation. One of the first things an expert should do is visit the site to gain firsthand knowledge of the landscape. A site visit not only informs the expert’s opinion, but also gives the expert credibility before a board, administrative judge, or court. The importance of an expert’s site visit, or ideally multiple site visits if warranted, was recently underscored in McLaughlin v. Zoning Board of Appeals of Duxbury.
McLaughlin v. Zoning Board of Appeals of Duxbury involved the denial of a special permit for a proposed pier. The lynchpin in this case was determining the edge of a salt marsh. The local bylaw required that any pier “must extend the full distance over any salt marsh used to access the water’s edge.” The proposed pier, as shown on the plans, would extend over a grassy, vegetated area of a salt marsh. A float at the end of the pier would rest in the water, at least during high tide. Because the pier would reach the water after crossing over the marshy, grassy area, the applicant argued that the proposed pier met this bylaw’s requirement. The ZBA, however, maintained that even though the pier would reach the water, the inlet where the float would rest is considered part of the salt marsh and denied the application for special permit. Both parties relied on wetlands experts to support their arguments.
When the denial of the special permit was appealed, the Land Court heard testimony from three experts – the engineer who designed the pier, a wetland scientist who testified on behalf of the applicant, and a wetland scientist who testified on behalf of the ZBA. Expert testimony featured heavily in the case, because a number of key terms, like “salt marsh,” “tidal flat” and “tidal creek” were either poorly defined or not defined at all. Further, the resource maps and plans were outdated and unreliable. In deciding whose testimony to credit, the Land Court gave much weight to the fact that the applicant’s two experts “inspected the property multiple times” and verified their information with “onsite inspections,” unlike the ZBA’s expert “who had not made a site visit.” The Appeals Court upheld the Land Court’s crediting of the applicant’s experts and not that of the ZBA’s expert.
As McLaughlin v. Zoning Board of Appeals of Duxbury demonstrates, maps and regulations are becoming more and more outdated with a changing landscape. Consequently, site visits are likely to become increasingly important for ground-truthing and rendering an opinion – and, in turn, increasingly important for a party’s expert’s credibility before a decision-making body.