Posted by: Patricia Salkin | January 31, 2014

MA Land Court Finds City Denial of Special Permit Not Reasonably Related to the Protection of the City’s Water Supply Due to Topography of the Property

Plaintiff, Giordano applied to the City Council of Haverhill for a special permit to construct a single-family building approximately 300 feet from the City’s primary public water supply, Kenoza Lake, and was denied. Under Section 255–90 of the Haverhill Zoning Ordinance, no building can be constructed within 500 feet of the mean high-water elevation without a permit from the City Council. Such permit would be granted in cases where the City Council finds that the proposed building does not have an adverse effect on the public water supply. The Massachusetts Land Court remanded the case back to the City Council so it could reconsider the case in light of information from Giordano’s expert and the Conservation Commission. The special permit was issued, but subject to a number of conditions. On appeal, Mr. Giordano sought to remove these conditions.

Mr. Giordano contends that due to the slope and topography of his property, the building he intends to construct will have no adverse impact on Kenoza Lake; the remaining conditions would thereby not serve the purpose of § 255–90, which is to protect the public water supply. According to plaintiff’s expert, Mr. Weiss, the ground water from this property would only flow in the direction of Kenoza Lake during abnormal, drought conditions, when the water level of the Swamp is at a higher elevation than the water level of the Lake. To test whether contaminants from Mr. Giordano’s property could reach the Lake and be a risk to the City’s water supply, Mr. Weiss utilized a formula, known as Darcy’s Law, expressed as: v = K(h/l) / p. This formula was used to calculate how fast ground water would flow in the direction of the Lake, traveling through the kind of soil conditions that exist at Mr. Giordano’s property.

Since these findings were largely uncontested, the court found that the conditions to the special permit were not related to the protection of the public water supply. Accordingly, the court concluded that they are arbitrary and capricious and must be stricken in their entirety from the permit.

Giordano v. Hart, 2014 WL 31470 (Mass. Land Ct. 2014)


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