Let’s say you’ve bought a beautiful parcel of land on which to build a new home, with fields and woods and even a stream that runs through the back acres. You’ve hired an architect or a builder, and your building plans are well underway. But, to your dismay, your state or local government adopts a new law or ordinance -- comprehensive wetlands protection, perhaps -- before you begin construction. The new rule might prevent you from building on a portion of your land and limit what you can do on another part.
As things stand, your building plans aren’t workable any more. What can you do?
A variety of health and environmental protection laws, ordinances, and regulations may apply to your home construction project. The scope and details vary from state to state, depending on local priorities. You won’t find any state or local bylaws protecting the Saguaro Cactus in New England, for instance!
Some regions of the country, like the East Coast and West Coast, are more likely to have extensive programs of environmental protection than others. But the general categories of concern are similar: health, air protection, noise pollution, water protection, and soil protection (such as prohibitions against dumping oils and others hazardous materials) account for most such programs.
The environmental protection laws that govern land use are the ones most likely to adversely impact your building plans. They will likely address wetland protection, open space protection, limitations on building near streams and rivers, protection of vernal pools and other environmentally sensitive habitats, and the protection of endangered species.
To find out which rules apply to you, either check on your state or local government’s website or stop by to talk to the municipal or county clerk or planning administrator. Seek expertise in the particular area of the new regulation; if a new state regulation requires that you maintain travel corridors for the salamanders that inhabit vernal pools, and you have a few vernal pools on your property, you will want to talk to one of the state’s experts on endangered habitat protection.
Map out the scope of the new regulations (for example, if a new ordinance prohibits building within 50 feet of a perennial stream, ask your architect or builder to superimpose that 50-foot buffer on your site plan, so that you can see exactly what impact, if any, it will have on your plans.)
Be especially attentive to which aspects of the new ordinance are mandatory, and which can be waived or modified in the discretion of a local board, agency, or commission. If the scope of the new rule can be modified or waived, attend a public meeting of the relevant authority, describe your difficulty, and ask for guidance.
Many state and local health and environmental protection ordinances contain “grandfather” provisions. They ensure that the provisions of the law in force when you bought the land will remain in effect for that parcel of land, even if the law changes later.
Changes in state and local health codes, especially those that require either an upgrade from a cesspool to a septic system, or from a septic system to a public sewer hookup, commonly have some form of grandfather protection. Other kinds of environmental protection regulations may contain grandfather provisions as well.
Read the language of the new regulation closely; grandfather provisions often “sunset”– that is, they expire after a certain number of years.
If you’re not grandfathered, you’re in the same boat as any other homeowner or landowner in your area. You may have to revisit your building plans. However, don’t despair. As a matter of constitutional law, environmental protection laws can’t deprive your land of all “economically viable uses” without compensation, although they may impact it significantly.
As a practical matter, local regulation becomes more flexible and fluid as the likely impact of onerous regulatory costs increases. Local boards, commissions, and authorities are usually responsive to the practical concerns of residents in their area. They are often willing to temper the otherwise harsh impacts of new environmental regulations to accommodate the reasonable concerns of a new resident.