Massachusetts Lot Owners Face Legal Obstacles to Home Construction in Wetlands Area

Constructing or modifying a home often involves land use regulations, which may be navigated with the assistance of a Massachusetts real estate attorney. In a January 31, 2019 case, the Appeals Court of Massachusetts reviewed a decision from a local conservation commission denying the plaintiffs’ request to build a single-family home on a lot. The decision was affirmed by the Superior Court before the plaintiffs sought additional review from the Appeals Court.

In 2007, the plaintiffs in the case had filed a notice of intent with the commission, requesting an order of conditions to build their house. After a public hearing in 2009, the commission denied the plaintiffs’ request, concluding that it did not meet the requirements of the Massachusetts Wetlands Protect Act, nor the town’s wetlands protection bylaw and regulations. Over the next several years, the issue was appealed and remanded back to the commission for reconsideration. Ultimately, the commission denied the plaintiffs’ request for a second time for failing to meet the standards required under land use laws.

On appeal, the plaintiffs argued that there was substantial evidence to grant the notice of intent, and that the commission was required to allow a waiver under the wetlands bylaw and the regulations.

Under the wetlands bylaw at issue, the permit applicant has the burden to provide adequate evidence that the proposed construction would not harm the interests protected by the bylaw. The failure to do so is sufficient cause for the commission to deny the permit. In addition, the applicant must demonstrate to the commission, with evidence submitted by qualified experts, that either the lot is not significant to the protection of the interests identified in the by-law, or that at the proposed work will protect those interests, or that the regulations do not apply to the lot at issue. Because the plaintiffs did not challenge the first and third factor, the only issue was whether they the proposed construction would protect the interests of the wetlands bylaw.

The Appeals Court noted that the commission held several public hearings, visited the site of the proposed construction, and considered the revised proposal that reduced the size of the home and yard, included a fence, and eliminated land grading to be replaced with fill to replicate the wetlands. The court went on to affirm the commission’s decision that the plaintiffs did not meet their burden of proof under the regulations. Specifically, the court found that the proposal placed the house within the undisturbed buffer zone of a stream, and would have disturbed a significant area within the buffer zone. Such a disturbance would adversely impact the interest of erosion control, wetland plants, wildlife and wildlife habitats, fisheries, the prevention of pollution, and the quality of surface and ground water.

At Pulgini & Norton, our Massachusetts real estate lawyers can provide legal counsel in any matter concerning residential property. We have represented buyers and sellers in home closings, building permit and zoning applications, title actions, foreclosures, any other types of real estate transactions. Schedule a free consultation to discuss your legal issue by contacting our office online or by phone at (781) 843-2200.

More Blog Posts:

Massachusetts Property Owners Seeking Approval to Build House Encounter Frontage Issues, Massachusetts Real Estate Lawyer Blog, published August 21, 2017

Massachusetts Property Owner Appeals After Zoning Board Denies Building Permit, Massachusetts Real Estate Lawyer Blog, published May 15, 2017