Massachusetts developers can now be challenged on basis of nuisance/trespass, regardless of permitting status

[Eric]

In environmental law, there's a distinction between land use regulation and basic property rights that a lot of practitioners aren't generally aware of. It's an interesting distinction that I wasn't myself aware of until I read this article about a Massachusetts developer that proposed to build a septic system that could potentially leech wastewater and increase nitrogen levels in abutting groundwater wells. An appeals court found that even though the developer had obtained all required permits, the abutting property owners nevertheless had the right to pursue nuisance and trespass claims, seek injunctive relief, and potentially stop the project from moving forward.

As stated by one attorney quoted in the article, "the decision makes clear that abutters have another avenue to challenge a project when their position does not prevail before a permitting board." I also thought the following instruction from a previous similar case - i.e., where a permit was issued but nuisance/trespass claims nevertheless prevailed - was especially illustrative of the recent appeals court decision. That instruction read: "no permit or license can immunize any defendant from liability for negligence. No permit or license can authorize creation of a nuisance.”

This is an important clarification that permitting professionals in Massachusetts will want to keep in mind going forward. The bottom line is that, just because a developer has all necessary permits in hand, they aren't necessarily protected from legal challenges from abutting property owners. Notably, if the property owner is able to demonstrate "reasonably imminent harm," they should now have the right to seek injunctive relief and stop the development before construction begins.

 

[JoeT]

I bet this will cause insurance fees to go up on behalf of the developers and contractors. Of course, those fees will trickle down to the general public, eventually. It seems like a good rule, though, and will be better for the community all around.