Limitations on Property Rights

Question 1

Eminent domain

Answer 1

The right of government to force the sale of privately owned property if it is in the public interest.

Question 2

Escheat

Answer 2

If a property owner dies without a will or heirs, their property transfers to the government.

Question 3

Zoning Enabling Act

Answer 3

Comprehensive or master plans, drafted by a planning commission, are often used by towns to plan their future development.

Question 4

Planned Unit Developments

Answer 4

Mixed use land developments that are often exempted from certain zoning regulations.

Question 5

An environmental impact statement

Answer 5

required to determine what, if any, environmental impacts a development might have on an area under NEPA (the National Environmental Policy Act)

Question 6

Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)

Answer 6

the “Superfund Act”. It was designed to clean up sites contaminated with hazardous substances, and to create liability for those that contaminate properties. CERCLA created the Agency for Toxic Substances and Disease Registry (ATSDR). The law allows the Environmental Protection Agency (EPA) to identify who responsible for contamination of sites and force them to clean up the sites. If no one responsible can be found, the EPA can clean up the site using a special trust fund.

Question 7

Superfund Amendments and Reauthorization Act (SARA)

Answer 7

provides for “innocent landowner” status, which allows landowners who did not contaminate the property, to avoid liability in certain circumstances.

Question 8

MA Oil and Hazardous Material Release Prevention and Response Act (Chapter 21E)

Answer 8

MA superfund law; regulates the transportation, storage, and disposal of oil and other hazardous waste in accordance with the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Oil Pollution Act, and Clean Water Act.

Question 9

The Clean Water Act of 1972 (CWA)

Answer 9

Regulates pollution of navigable (and connected) waters. Established the goals of eliminating releases of high amounts of toxic substances into water, eliminating water pollution, and ensuring that surface waters meet standards necessary for human sports and recreation. Limits (and can prohibit) the filling of wetlands and other property development near navigable waters (especially if the filling/development would substantially degrade water quality).

Question 10

National Flood Insurance Program (NFIP)

Answer 10

Established by congress in 1968 in the National Flood Insurance Act. Requires property owners in “high risk flood zones” (think: waterfront property) to purchase flood insurance if their community participates in the NFIP and if they have a federally backed mortgage. It is administered by the Federal Emergency Management Agency (FEMA).

Question 11

Wetlands Protection Act

Answer 11

A Massachusetts state law enforced by the Department of Environmental Protection (DEP). Requires a buffer zone of 100 feet from wetlands, with minor changes permitted after 50 feet (subject to DEP approval). Usually, no changes may be made to the wetland itself. Wetlands are areas that are either permanently or seasonally wet, and the soil and the plant community has adapted to that water (e.g. riverbanks, marshes, etc.).

Question 12

Coastal Zone Management Act (CZMA)

Answer 12

A federal law designed to protect coastal zones (like the Gulf of Mexico or Long Island Sound) from the harmful effects of real estate development. It limits, or completely eliminates, development in those zones.

Question 13

Endangered Species Act of 1973

Answer 13

Designed to protect critically imperiled species from extinction as a “consequence of economic growth and development un-tempered by adequate concern and conservation.” May limit property use and development if the presence of an endangered species is discovered on a piece of property.

Question 14

LEED Certification – Leadership in Energy and Environmental Design (LEED)

Answer 14

suite of rating systems for the design, construction, operation, and maintenance of green buildings, homes and neighborhoods established in 1998. Developed by the U.S. Green Building Council (USGBC), LEED is intended to help building owners and operators find and implement ways to be environmentally responsible and resource-efficient. Under LEED buildings are rated on 100 possible base points distributed across five major credit categories: Sustainable Sites, Water Efficiency, Energy and Atmosphere, Materials and Resources, Indoor Environmental Quality, plus an additional six points for Innovation in Design and an additional 4 points for Regional Priority. Buildings can qualify for four levels of certification:
Certified: 40–49 points
Silver: 50–59 points
Gold: 60–79 points
Platinum: 80 points and above

Question 15

Environmental Vocabulary

Answer 15

Accretion – Increase of property by gradual natural action by wind or water

Alluvion – Increasing of land area along a shore by deposited alluvium or by the recession of water

Alluvium – Clay, silt, sand, gravel, or similar detrital material deposited by running water

Aeolian Soil – Soil deposited by wind, such as sand dunes or silt.

Avulsion – The sudden separation of land from one property and its attachment to another, especially by flooding or a change in the course of a river.

Erosion – The process by which the surface of the earth is worn away by natural action (e.g. water, wind, etc.)

Reliction – An increase of the land by the sudden retreat of the sea or a river

Question 16

Easements

Answer 16

dominant tenement- property with the right

servient tenement- property encumbered by the right

Question 17

Open, Notorious, Continuous, Hostile, and Adverse (O.N.C.H.A.)

Answer 17

use of the right of way for more than 20 years.