Imagine owning land that you intend to develop, but the Massachusetts Division of Fisheries and Wildlife, also known as MassWildlife, tells you that you can’t because it has been designated as a “priority habitat” under the Massachusetts Endangered Species Act (MESA), a law that doesn’t include language for such a designation.
This is the topic of a case that will go before the Massachusetts Supreme Judicial Court later this year and could have a broad impact across the commonwealth. The question is whether MassWildlife had the authority to create a priority habitat designation in their regulation that was not in the original law, which only includes language for a “significant habitat”―a designation that acknowledges certain property rights and provides for compensation to the landowner in certain circumstances. The priority habitat designation does not provide for such compensation.
“They deliberately and artfully created a mechanism to circumvent the law and the Constitution,” Hampden landowner and plaintiff Bill Pepin, who is also the general manager at a local tv station, told Masslive.com.
The Valley Advocate, an alternative weekly newspaper based out of Northampton, wrote about Pepin’s battle in 2009, where Pepin said that he was not using WWLP to pressure legislators who were, at that time, considering a bill to change the law. There is currently a bill that has been sponsored by a state senator from Pepin’s district, Gale Candaras (D-Wilbraham), and others that seeks to clarify the law. There is also a website supporting the measure.
According to a recent news report, Pepin wants to build a retirement home in Hampden, a Pioneer Valley town on the Connecticut border. He has already sued MassWildlife, which has designated his property as a priority habitat because of the presence of a species of turtle that aren’t threatened or endangered nor have been found on his property, but had lost that case.
The species of turtle in question is the Eastern Box Turtle, according to the news report, and is listed as a “species of special concern”, but, however, has never been sighted on the property in question. As Masslive reported: “State wildlife scientists did not find turtles on Pepin’s land when they toured the property with Murray [Pepin’s attorney], but they said the land was ideal habitat for the reptiles.”
The news report also stated that the significant habitat model has never been implemented by regulators, only the priority habitat model not in the law. If it is determined by the court that the state doesn’t have the authority to designate the property in question as a priority habitat, it could raise questions about properties throughout Massachusetts that have been designated as such instead of as significant habitats.
Masslive.com reported that MassWildlife claimed that they have the authority to establish guidelines as part of its enforcement of MESA, citing various land-use regulations on the local, state, and national level.
If you are planning on buying or selling a home in the Pioneer Valley, make your first call to Michael Seward at 413-531-7129.