Health Board Actions Considered A Regulatory Land Taking

By: Bill Galvin

Topics: Harwich


HARWICH — The town and the board of health have been named in a suit claiming the denial of acceptance of an application for variances constitutes a regulatory taking under Article 10 of the Massachusetts Constitution and the plaintiffs are seeking damages.

At issue is a long standing battle between the estate of Lois A. Jones, which owns a 21,927-square-foot lot, located at 5 Sea Street Extension, fronting on Nantucket Sound, and whether the lot is buildable given the presence of a coastal dune on that property.

The suit charges a decision by the board not to accept an application for variances on Jan. 17, 2017 by the board of health to locate a proposed sewage absorption system 16 feet from a coastal dune when 100 feet is required and the building sewer for the proposed septic system set back 46 feet, constitutes a regulatory taking.

The health board cites its policy – “Any parcel which requires compliance with the Wetland Protection Act and/or Town of Harwich Wetland Protection Bylaw must obtain conservation commission approval before a hearing of the Board of Health” – as the reason for not accepting the application.

The suit cites a Land Court Plan showing the lot which dates back to 1925. The property was purchased by Jones, now deceased, in 1958 with the intention of building a single family home there. The property was placed in Jones' estate and Walsh Brothers Building Company of Walpole was authorized to seek the permits.

The law suit, filed by attorney Brian J. Wall of TroyWall Associates in Sandwich, points out on Fiscal Year 2012, the town assessed the property at a value of $1,434,500, but in Fiscal Year 2013, the town adjusted the value, as an “unbuildable” lot, reducing the assessed value to $24,000.

“Upon information and belief, the property, as a buildable lot, would be worth approximately $1,700,000 as of the date of this complaint. The HBoH's (Harwich Board of Health's) decision has interfered with the reasonable expectation that the property may be developed and had a severe economic impact on the property and has deprive the estate of a substantial economic benefit that otherwise could have been derived from the property,” the suit states.

The town and the plaintiff have a long history of regulatory differences. In November of 2011, Walsh Brothers filed a notice of intent with the conservation commission to construct a single family dwelling there. That filing used the same wetlands resource delineation established by an order of conditions issued by the commission in

March of 2009.

That order of conditions authorized certain drainage improvements in the private way where the property is located. That order showed a portion of the property to be located outside the wetlands delineation to the coastal dune on the property. However, the commission in April of 2012, issued an order of conditions determining the property was located entirely within the coastal dune, the document states.

Walsh Brothers appealed the order to Superior Court under the local bylaw and it also requested a superseding order of conditions from the state Department of Environmental Protection. DEP issued a superseding order confirming the commission's decision.

That decision was appealed to an adjudicatory hearing. That hearing was stayed pending completion of the Superior Court appeal. Walsh Brothers and the commission eventually settled that litigation through a stipulation. That lifted the stay on the adjudicatory hearing and the administrative law judge ruled the location of the coastal dune was established in the 2009 order of conditions. DEP issued a superseding order of conditions approving the proposed work in August of 2015.

The commission and neighbors filed an appeal of the DEP order and eventually a settlement was struck when Walsh Brothers agreed to file a notice of intent with the commission under only the local bylaw and local regulations. DEP issued a final order approving the proposed work.

Walsh Brothers filed the NOI in December of 2015 for a hearing scheduled with the commission on Jan. 6, 2016, but it was discovered the certified mailing to abutters carried the wrong date of the hearing, it stated Jan. 7. The commission opened the hearing and continued it to Feb. 3.

The suit states “in an abundance of caution,” Walsh Brothers filed another NOI for the proposed work on Jan. 8 2016. Both NOIs proposed work within the 50-foot “no disturb zone.” of the coastal dune. The commission denied the proposed work.

Walsh Brothers filed an appeal in Barnstable Superior Court, citing it initial filing in December of 2015 and charging the public hearing did not take place with 21 days of the date it was filed as required by the act and local bylaw. On March 6, 2017 the court issued a decision affirming the commission's denial decision.

The plaintiffs had also filed an application for variances with the health board in November of 2015. That board has a policy stating any property within the jurisdiction of the conservation commission must obtain he approval of the commission before being heard by the health board.

The board ruled the application was incomplete because the commission had not yet acted and denied the acceptance of the application. That decision was appealed to Superior Court and in October 2016, the court ruled the health board must accept the application for variances.

Walsh Brothers filed another application for the variances with the health board in January 2017. The health Board accepted the application, but also voted to deny the application for the variances. That denial has brought forth the latest suit received last week by the town.

“The application of the health regulations to the property and the HBoH's decision denying the application for variances, without paying just compensation, constitutes a regulatory taking under Article 10 of the Massachusetts Constitution. The estate is entitled to just compensation for the regulatory taking,” the suit charges.

The plaintiff is seeking damages and costs, including attorney's fees. The plaintiff is demanding a jury trial on all claims and issues.