Massachusetts Real Estate Lawyer Blog
If you are seeking to build your new home on property located on a flood plain or watershed, local Massachusetts zoning laws may significantly affect your plans. In a February 5, 2019 real estate case, the property owners had difficulty obtaining approval to construct a single-family home on their lot. Although a local zoning board had granted them a special permit, the owners of the adjacent property had appealed that decision, and it was reversed by the Superior Court. The property owners subsequently sought review of the matter from the Appeals Court of Massachusetts.
The lot at issue in the case was located in the town’s flood plain and watershed district. Under the local by-law, a special permit may be granted for land within a flood plain and watershed district if the applicant proves that the land is not, in fact, subject to flooding, and has suitable drainage conditions for the proposed use. Flooding as used in the by-law means in the sense that water rises and overflows over normally dry land.
The local zoning board found that the lot was subject to flooding. The board also considered whether development of the proposed dwelling would be inconsistent with the purposes of the by-law, and whether the dwelling would violate public policy concerns. Determining that it did not violate public policy concerns, the board allowed the special permit. The Superior Court reversed, concluding that under the by-law, the board could not grant a special permit for a lot subject to flooding in fact, notwithstanding any policy considerations.
On appeal, the lot owners did not challenge the factual determination that their lot was subject to flooding. Instead, they argued that the zoning board could issue a permit based on the following public policy considerations of the bylaw: (1) the protection of individuals who develop or occupy land on a flood plain; (2) the protection of other landowners from damage resulting from development in the flood plain; (3) the obstruction of the flood flow; and (4) the protection of the community from land use which requires subsequent expenditures for public works and/or disaster relief.
The appeals court was not persuaded by the owners’ reliance on case law, nor the language of the by-law. The court explained that while policy considerations may be part of the board’s decision to issue the permit, it could only do so if the lot is not subject to flooding. Accordingly, the court ruled that the permit was not properly issued.
The Massachusetts real estate lawyers at Pulgini & Norton can provide legal advice to people who are seeking to modify or construct a home. Our knowledgeable attorneys can help you navigate land use and zoning laws, secure financing for a mortgage, or represent you in a residential purchase or sale. Schedule an appointment to discuss your property matter by calling (781) 843-2200 or submitting our contact form online.
More Blog Posts:
Massachusetts Lot Owners Face Legal Obstacles to Home Construction in Wetlands Area, Massachusetts Real Estate Lawyer Blog, published February 2, 2019
Massachusetts Property Owners Object to Modification of Subdivision Plan By Developer, Massachusetts Real Estate Lawyer Blog, published November 7, 2016