Just when you thought it was safe to build near the water, the state’s Supreme Judicial Court has issued a new ruling that could curtail new construction in many coastal towns around the state.
Last fall, the Federal Emergency Management Agency (FEMA) issued revised flood zone maps for the whole country, re-designating many areas of land as prone to flooding. The map revisions came out just as Congressionally-mandated changes to FEMA’s flood insurance program were kicking in; the result ignited controversy in many coastal communities in the Bay State, where homeowners who had never made a flood insurance claim discovered they could now be required to pay premiums, and residents in flood-prone areas found themselves faced with such steep premium increases – tens of thousands of dollars in some cases – that many feared their homes would be rendered un-saleable. A law passed by Congress earlier this month has tamped down on some of the controversy, capping yearly premium increases and preserving the grandfathered low premiums of existing homeowners.
But the controversial maps which help spur the protests will still go into effect next spring. And now the SJC has ruled that town planning boards are entitled to rely on them when determining whether new construction will be allowed in certain areas of town.
New Information
The case, Doherty v. Planning Board of Scituate, involved two empty lots protected by a seawall on Edward Forster Road in the town. In the early 1970s, the town passed a bylaw required any landowner seeking to build new construction on the road apply for a special permit and prove the area was “in fact not subject to flooding” in order to get the go-ahead. The Doherty family applied for just such a permit in 2008, in order to build two single-family dwellings on the lots, arguing that the buildings’ elevation on the lots, combined with putting them on pilings, would put them well above the elevation designated as flood-prone on the original zoning maps.
The town planning board, however, rejected the application, based on testimony from neighbors about how the area had fared in the Blizzard of ’78 and the “Perfect Storm” nor’easter of 1991, as well as updated FEMA maps. The SJC has now backed up that reasoning, saying that in determining whether a piece of land is “subject to flooding” town boards and judges aren’t required to simply stick with the boundaries of a flood zone as laid out in original maps, but are entitled to use new information that may have emerged about how vulnerable a particular piece of land is to flooding.
“FEMA’s knowledge of flooding today is based on greater technological and scientific advancements than were available in the early 1970s,” the SJC acknowledged, pointing out that newer flood maps include information related to vulnerability to three different types of flood events, instead of simply relying on elevation. Since the ultimate purpose of the town’s bylaw was to protect human lives and property from dangerous flood conditions, the board was entitled to take a broad view of what “not subject to flooding” meant, the court said, instead of sticking to the boundaries mapped out when the law was written.
Broad Applications
The court’s stance could have an effect on far more than just the two lots at stake in Scituate.
“I think it will have a broad impact,” said Greg McGregor, principal of Boston’s McGregor & Assocs. and chair of the Real Estate Bar Association’s Environmental Committee. “More and more land is becoming subject to flooding. It’s illustrated by the new FEMA flood maps, and by climate change studies. The area subject to jurisdiction under these bylaws [is expanding].”
The majority of the commonwealth’s 351 towns already have some form of flood zoning in place, as the federal government required towns to pass zoning bylaws in order to be eligible for certain flood relief funds. Many of them use language similar to that in the Scituate statute, said McGregor, requiring proof that land is “not subject to flooding” in order to grant new construction permits in flood zones.
Whether or not an individual lot is subject to the laws will depend heavily on the precise wording of the particular town’s bylaw, McGregor cautioned. But forces are already in play that could push towns to expand their zoning: a 2011 Metropolitan Area Planning Council study of the towns of Scituate, Marshfield and Duxbury found that sea level rise of a single foot over the next century could turn events like the ’91 nor’easter – which damaged 608 homes at a price tag of over $40 million in those three towns alone – into a once-a-decade event. Sea levels in Boston Harbor are predicted to rise two feet over the next century. The report recommended expanding flood zoning as one tool to combat the problem.
With the recently revised FEMA maps greatly revising and expanding the areas considered vulnerable by the feds, landowners and developers looking to build could find it much more difficult to get permits to build, potentially devaluing the land.
Email: csullivan@thewarrengroup.com
