|"We're seeing on the evening news that there are some darn good reasons to prohibit development in ecologically fragile areas."|
Attorney for the Town of Chatham
In a decision that could resonate in coastal communities around the country, the Massachusetts Supreme Judicial Court has affirmed the authority of a local government to bar residential construction in a flood-prone area, and ruled that the community does not have to compensate the owner for being unable to build a home on the seaside property.
Winning Gove v. Zoning Board of Appeals of the Town of Chatham was "a very big deal," says Kevin McDonald, the town's director of community development. "I don't want to be the boy calling wolf, but if it had gone the other way, a lot of properties in flood zones would now be buildable. There would have been ramifications for a lot of other communities like us."
According to Massachusetts' highest court, there is a "reasonable relationship" between the Town of Chatham's zoning bylaw restricting development in a coastal floodplain and the legitimate state interests of effective response to natural disasters, the protection of rescue workers and residents, and the preservation of neighboring property. The court also found that the plaintiff "failed to prove that the challenged regulation left her property ‘economically idle.'"
While the decision is binding only on Massachusetts courts, it could have a persuasive effect on other jurisdictions.
Bill Riley, the attorney representing the plaintiffs in the case, acknowledges, "Perhaps, in the wakes of Katrina and Wilma, what may have the most resonance and carry this case beyond its local origins was the [court's] concentration on the safety of service personnel, firemen, policemen, and first responders. Using that as justification makes it very difficult to argue against."
If communities are interested in developing similar ordinances, "now may be the perfect time on the heels of Hurricanes Katrina and Rita," says Bruce Gilmore, attorney for the Town of Chatham in the case. "There is an awareness today of what can happen. Destruction like that [in Louisiana and Mississippi] is not the figment of the imagination of some mad scientist espousing global warming. We're seeing on the evening news that there are some darn good reasons to prohibit development in ecologically fragile areas."
Chatham's zoning bylaw restricts development in the coastal floodplain designated by the Federal Emergency Management Agency (FEMA). "What it says," explains McDonald, "is that you can't build any new houses" in the town's Coastal Conservancy Districts.
Under the provision, existing structures can be improved and a special permit can be obtained for other uses, including the construction of piers, boathouses and boat shelters, and other structures for marinas and boatyards.
The town intended the overlay regulations to preserve groundwater supplies, protect fish and shellfish, protect the public's health and safety, safeguard people and property from flooding, and preserve the community's natural areas.
The court characterizes the lot that Roberta Gove inherited in 1975 as a "marginal parcel of land" that remained undeveloped for many years because of the risk of coastal flooding. Lot 93 in the Little Beach section of Chatham is now exposed to open ocean waves because of a breach in a barrier beach just opposite the site and is exposed to both accelerated "normal" erosion and storm-related erosion.
"I always felt there was an arbitrary quality" to the conservation districts, says Riley. He calls the FEMA-designated flood zones "an educated guess."
While lot 93 has flooded, he says it has never flooded to the highest elevation in FEMA's A-zone designation of the property, and the lot has never been subject to wave action nor been inaccessible to emergency personnel.
"Nobody really knows what the real floodplain elevation is," argues Riley. "If you built a single family residence [on the lot] in accordance with FEMA regulations, the likelihood of harm to the structure would be nil or very small."
Before Chatham established its conservancy districts in 1985, Gove put lot 93 on the market but had no offers. In the late 90s, the market for coastal property soared. In 1998, Donald and Ann Grenier contracted with Gove to purchase lot 93 for $192,000, contingent on their obtaining permits for a home and a septic system.
The Town of Chatham denied the building permit. Gove argued that the town should either approve the permit or compensate her for the loss of value in her land. When the town denied her appeal, suit was filed in Massachusetts Superior Court.
Riley says he based the suit's arguments on the previous U.S. Supreme Court decision in Lucas v. South Carolina. Under this case, the court said if the value of property is diminished 100 percent by a government regulation, then you have a "taking" that must be compensated.
"We figured we would seek a permit to build, and if we didn't get it, we had a shot at getting paid," he says.
The Massachusetts Superior Court ruled in favor of the town. According to the judge, lot 93 was in a floodplain and potential flooding would have a severe impact on the surrounding area. This decision was affirmed by the state Appeals Court. The case was then appealed to the Massachusetts Supreme Judicial Court, which on July 26, 2005, upheld the two previous decisions.
The Supreme Judicial Court also rejected Gove's argument that the construction ban represented a governmental taking of her property.
The court based its ruling on the recent U.S. Supreme Court decision of Lingle v. Chevron U.S.A., which says that under the Fifth Amendment of the U.S. Constitution, a zoning ordinance is valid unless it bears no reasonable relation to the state's legitimate purpose.
"Even I can't say there's not a rational connection between the goals of the bylaw and the goals the town is trying to achieve," says Riley.
The court also found that Gove failed to prove that the challenged regulation left her property "economically idle" because the town allows special permitting for alternative income-producing uses, such as for a marina or boat storage facility.
"This relates to the argument of investment-based expectation," explains Town Attorney Bruce Gilmore. "As long as a community provides for other economically viable uses—even if they may not be as economically advantageous as a single family home—the courts, at least in Massachusetts, will not find a regulatory taking."
"I don't know that I agree with the court's decision, but I feel like we gave it a good run and I'm at peace with it," says Riley. "I believe it severely limits the use and value of the property, but in the overall context, I can't say it's an outrageous restriction."
Gilmore says, "The lesson to be taken away from this case is that you've got to give property owners some alternative uses. If you don't do that, you will in fact have a taking."
"I think," says McDonald, "it's important that the courts accepted the idea that the threat to other property and public safety and personnel are legitimate governmental concerns."
He adds, "This case was a big deal. Other coastal communities understand how big a deal it would have been if we had lost."
To view the Massachusetts Supreme Judicial Court 's ruling on Gove v. Zoning Board of Appeals of Chatham , go to http://www.socialaw.com/slip.htm?cid=15382. To view the overlay regulations of Chatham 's Coastal Conservancy Districts, point your browser to http://www.town.chatham.ma.us/Public_Documents/ChathamMA_CommDev/S00699837.-1/ZBylaw8%2030%2005.pdf. For more information on the overlay regulations, contact Kevin McDonald at (508) 945-5160, or email@example.com. For more information on the legal case, contact Bruce Gilmore at (508) 362-8833, or firstname.lastname@example.org. You may also contact Bill Riley at (508) 945-5400, or email@example.com.