Permitting/Zoning

Interdunal Freshwater Wetland - Sandy Neck, Barnstable, MA_resizeOverview of Wetlands Regulations

Massachusetts has one of the most restrictive wetlands and environmental codes in the U.S. Simply put you cannot do anything — not clear, cut, fill, dump (not even leaves, grass clippings or dirt), alter, grade, landscape or build upon — any wetland resource area without a permit from your local town Conservation Commission.

The state Wetlands Protection Act and Rivers Protection Act impose stringent restrictions and oversight of real estate development in and near coastal wetlands areas, such as salt marshes, dunes, beaches, and banks, and inland wetlands areas, such as swamps, marshes, rivers, streams, ponds, and lakes. Many homeowners are often surprised to learn their property contains or is near protected wetlands or is within a restricted buffer zone which will impact their ability to construct an addition, deck, pool, driveway, or cut trees.

Check With the Local Conservation Agent First

A buyer and their Realtor should always research whether there are wetlands on or near the property. First, walk the property — the whole thing. I’m shocked at the number of times agents don’t do this. Next, check the state Geographic Information (Mass GIS) maps online which shows most wetland areas. Next, call over to the local Conservation Agent and pull out the local wetlands maps. The conservation agent should be able to answer most questions and will know whether there are conservation restrictions on the property.

Wetlands Areas & Buffer Zones

The state Wetlands Protection Act and local Wetlands Bylaws include a number of different types of wetlands, and wetland-related areas called “Resource Areas.” These include rivers and streams (“perennial” if they run year round, and “intermittent” if they dry up seasonally); lakes and ponds; the vegetated wet areas bordering rivers, streams, lakes or ponds (“bordering vegetated wetlands”); the 100-year floodplain along rivers and streams; and isolated areas that flood seasonally, such as vernal pools. The determination of wetlands is a science and very complicated.

The first 200 feet from the edge of a perennial stream are regulated as “riverfront area.” The first 100 feet from a vegetated wetland or stream bank are regulated as “buffer zone.” Some towns have even more stringent by-laws and buffer zones, so always check with your town’s conservation commission.

Any work performed within these resource areas and the 200 or 100 foot buffer zones are strictly regulated, and a permit (called an Order of Conditions) must be obtained by the local Conservation Commission before any work starts. The Conservation Commission may decide not to allow the project. Or it may allow it, with a myriad of conditions to protect the wetlands, including hay bales, silt fencing, wetlands replication areas, and other performance standards. Furthermore, disgruntled abutters may appeal the issuance of a conservation permit, so it’s a very good idea to get your neighbors on board before you appear before the conservation commission. It’s also a good idea to hire an experienced Massachusetts wetlands attorney to guide you through the process.

Aquifer Protection

Lastly, many Massachusetts towns rely on municipal wells as their public water supply. In response to threats and actual contamination of drinking water wells, towns have enacted aquifer protection districts. These areas are usually depicted as “overlays” on more customary zoning districts. The use of septic systems, underground fuel oil storage tanks, and other potential contaminants is often closely regulated in aquifer protection districts. Because of the costs of remediating contaminated public wells and locating alternative sources of potable water, state and local governments are taking other measures, such as restricting the size and use of septic systems to protect underground water resources.

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Score One For Property Rights Advocates

Massachusetts has the well-deserved reputation of being one of the most challenging states to permit a new housing development due to its myriad of rules, regulations and zoning by-laws. Real estate developers seeking to build a new subdivision typically go through an arduous permitting process before the local Planning Board, Board of Selectmen, Board of Health, Conservation Commission, Zoning Board of Appeals and other town boards.

Open Space Set-Asides

In what has become very much en vogue and required in the last decade are towns requiring that the developer dedicate or deed some of its developable land for open space and recreational purposes. In the recent case of Collings v. Stow Planning Board(embedded below), the Appeals Court ruled that the planning board went too far in requiring that the developer set aside almost 6 acres of a 5 lot subdivision for open space and “environmentally significant areas with views.”

Now usually, the developers don’t like to sue town planning boards over these type of exactions or “give and takes” as they want to get their projects approved and “play ball” with the towns. Apparently, the Collings family stood their ground in this case and won a decent victory for other developers who are less inclined to sue town boards.

Ruling: Open Space Requirements Must Be Tied to Legitimate Subdivision Concerns

Generally, a planning board condition requiring the dedication of open space which in effect reasonably limits the number of buildable lots, imposed out of safety concerns arising from the length of the street, would not be illegal. The Appeals Court found that the Stow planning board did not limit itself to a reasonable open space requirement but went much farther and required dedication of open space for public use, including the actual transfer of that open space to the town or a land trust. The court ruled that the exactions also provided no additional benefit above and beyond the open space requirement that relate to the safety concerns that are the subject of the subdivision law and the street length requirements. “Although a planning board’s authority under the subdivision control law certainly encompasses, in appropriate circumstances, requiring open space, it does not extend to requiring the transfer of that open space to the public for reasons unrelated to adequate access and safety of the subdivision without providing just compensation,” the Court held.

This case is a wake up call to town planning boards who may be a bit power-hungry.

Collings v. Planning Board of Stow//

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Richard D. Vetstein, Esq. is an experienced Massachusetts Real Estate Development Attorney. For further information you can contact him at info@vetsteinlawgroup.com.

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Boston Globe reporter Jenifer McKim read my blog post, Four Toed Salamanders And SLAPP Suits, and decided that it would be a great topic to write about. Her superb article, How A Salamander Raised A Rights Issue, was published today, and I was fortunate enough to be quoted:

Richard Vetstein, a Framingham real estate lawyer, said the decision was a victory for developers in a state that has an especially tough permitting process.

“Whether it is zoning, whether it is wetlands, you name it, vernal pools, you can invoke some pretty serious regulation and have a property get bogged down pretty quickly,’’ said Vetstein, who wrote about the salamander case on his Massachusetts Real Estate Law blog.

The case is very interesting, pitting free speech rights against developers’ rights to build.

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spotted-salamander_721_600x450The recent case of Brice Estates v. Smith where an abutter trespassed on a developer’s land to photograph endangered female four toed salamanders got me thinking about the frequent convergence of developer’s rights vs. citizen’s free speech rights in real estate disputes. In the case, the abutter sought refuge under the pro-free speech anti-SLAPP law, but the court said that he was still trespassing.

A SLAPP is an acronym for Strategic Litigation Against Public Participation. Before being legislatively outlawed, real estate developers would often use SLAPP lawsuits to muzzle abutters who would organize and complain during town meetings and sue to stop real estate projects. The abutters couldn’t afford to defend against the SLAPP suits, so they would back down.

Concluding that citizens’ free speech rights were being suppressed by SLAPP suits, the Massachusetts Legislature in 1994 outlawed them in what’s now referred to as the “anti-SLAPP Act.” The law protects such free speech activities such as filing zoning appeals, reporting violations to state agencies, and lobbying. The anti-SLAPP Act has been one of the most litigated pieces of legislation within the last 15 years.

Anyways, back to the four toed salamanders. Proving the existence of endangered wildlife (spotted frogs, diamond backed terrapins, barn owls, you get the picture) is a sure fire way to get a real estate project derailed, or at least subject to much stricter permitting, delays and scale downs. And that’s exactly what the abutter did in the Brice Estates case when he tip-toed onto the developer’s land with his Nikon to do his best National Wildlife photo-essay. So naturally, the developer sued the abutter for trespassing.

Arguing that the trespass claim was really a SLAPP suit, the abutter said that the developer sued him just for reporting the salamander to the state. The court disagreed, ruling that trespassing wasn’t a constitutionally protected right.

So the moral of the story is that a quest to find a female four toed salamander can get you into some legal trouble.

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