The Massachusetts Supreme Judicial Court (SJC) recently upheld a lower court’s ruling regarding the authority of Division of Fisheries and Wildlife, also known as MassWildlife, to designate certain areas as a priority habitat under the Massachusetts Endangered Species Act (MESA), thereby limiting a private landowner’s use of their property without recognizing said landowner’s property rights.
The question before the court was whether MassWildlife has the authority to create a priority habitat designation in their regulation that was is in MESA, 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 (M.G.L. Chapter 131, Section 4). These rights include notification of property owners, an appeals process, and even compensation. There is no mention of the priority habitat designation in the law.
My issue is not whether or not MassWildlife and the court’s legal reasoning were wrong or right. My issue is that the priority habitat restriction is unnecessarily capricious and effectively an involuntary state-mandated conservation restriction that should be changed through legislation. Conservation restrictions are voluntary and recorded at the registry of deeds in the county in which the property is located, which is not the case with the priority habitat restriction.
Whenever one buys a house, the deal isn’t official until the deed is recorded at the registry of deeds; if there is a mortgage on the property, it is recorded at the registry of deeds; if there is lien on the property, it is recorded at the registry of deeds; if there is an easement on a property, it is recorded at the registry of deeds. A conservation restriction is a type of easement.
Regardless of legal obfuscations of reality, a priority habitat designation is effectively a conservation restriction.
Although MESA acknowledges property rights with its significant habitat designation, as stated above, this is not the case with the MassWildlife’s priority habitat designation. There is no judicial recourse or compensation for a property owner if their property has been designation as such. If a property owner wishes to develop their property and said property is in a priority habitat, there is a potentially cost-prohibitive fee schedule associated with the bureaucratic hurdles that come with the designation. Navigating the review process can not only be costly, it can also be time-consuming.
Further, the determination process of a property as a priority habitat is arbitrary. In the case that was brought before the court, for example, the determination was reportedly made because someone said they saw a female Eastern Box Turtle on a Hampden property in 1991. What someone claimed to have seen hardly seems like an appropriate methodology of determining whether or not a property is a priority habitat.
While there are other regulations on the books that limit the use of a property without being recorded, i.e., wetland protections, building set-backs, and zoning, their determinations can be made objectively and with the appropriate documentation and surveys. For wetlands, a property owner submits a “Request for Determination” to the town so that Conservation Commission can assist in assessing the wetlands on the property. With a priority habitat designation, the determination has already been made without any requests or input from the property owner.
If one looks at the commonwealth’s map that includes an overlay of priority habitats, much of the commonwealth, encompassing an inestimable number of properties, are currently designated as such. Although there is disclaimer that one has to acknowledge with a click before being granted access to the map that states that the information is based on “the best scientific evidence available” and “documented records of rare species and various spatial layers”, what that evidence and documentation is could be based on arbitrary data, as was the case when it was documented that someone claimed to see a species of concern creating problems for the Hampden property owner.
A bill has been introduced to address MassWildife’s use of priority habitats, but it hasn’t gone anywhere since 2012. Further, the bill’s sponsor, Senator Gale Candaras, who also represented the district of the person who brought the case before the SJC, has decided not to run for re-election.
Conservation is a good thing. I have written about various conservation efforts in the Pioneer Valley for years. However, MassWildlife shouldn’t be able to write regulations that essentially rewrite the law in a manner that undermines the rights of property owners. Because the Supreme Judicial Court has affirmed that they can, the State Legislature needs to affirm the rights of property owners by passing the appropriate legislation.
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. Michael Seward is a Certified Residential Specialist, a Certified Buyers Agent, a Certified Loss Mitigation Specialist, a Certified New Homes Specialist, and Green designee of the National Association of REALTORS®.