This Week's Question

April 18, 2005

By Nena Groskind

Q:  I need some help. My wife and I own a lot of land in Oak Bluffs, which has always been viewed, and treated as, a residential lot. It is in the middle of a residential neighborhood of two- and three bedroom, all-season homes on lots approximately the same size as mine. We put the lot on the market and found a buyer, but the deal fell through because of an environmental glitch. The town of Oak Bluffs had approved construction of a one-bedroom house on the lot, with an enhanced septic system. But the Department of Environmental Protection (DEP) overruled that decision, claiming that the septic system, which the Board of Health had approved, was deficient. According to the DEP, this is a nitrogen sensitive area. As a result, in order to build on the lot, the buyer would have to apply for and obtain DEP approval of a “nitrogen aggregation plan.” That means, in order to build a one-bedroom house on this lot, the owner would have to purchase a comparable lot in the same designated nitrogen zone, and leave it undeveloped. I don’t think it is fair to make me purchase another parcel of land in order to build on land I already own and have owned for years. The town of Oak Bluffs approved the construction (subject to the enhanced septic system) and I think that decision should stand. What can I do to assert my rights in this matter?

A:      Your complaint is a common one on the Cape, where water quality is a major concern. The problem you have encountered, which the DEP rules you are protesting address, is the extent to which development can threaten an area’s water supplies by dumping an excess amount of nitrogen (via sewage) into the underlying aquifers. In areas designated as “nitrogen sensitive” (and it appears your site is located in one) DEP rules establish a maximum amount of waste allowed based generally on the size of the lot. If a proposed development will produce more than the amount of waste or nitrogen allowed for that site, the DEP requires the owner, as a condition of obtaining a sewage system permit, to offset that excess by purchasing a comparable amount of land on which development will not be allowed. These rules are similar to those requiring developers to repair or replace any wetlands that would be disturbed or eliminated by a proposed development. The idea in both situations is to create a net zero impact on the environment.

Your complaint that the law itself is unfair isn’t likely to get very far, the attorneys I consulted agreed; those challenges to Title 5 have long since been fought and lost. Similarly, there is unlikely to be any question about the DEP’s authority to reject a sewage permit the local Board of Health has approved if the development violates the Title 5 rules. You could challenge the DEP ruling, if:

A real estate attorney or an attorney specializing in environmental law should be able to tell you if you have any basis on which to pursue a complaint. If a challenge is indicated, your first step would be to request an administrative hearing within the DEP to review the agency’s decision. The next step, if there is one, would be to challenge the ruling in court.