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.