A buyer purchases a property in Westborough, Massachusetts and later discovers that a portion of the rear yard was filled without a required Order of Conditions from the Conservation Commission approximately eight years ago by a prior owner. The buyer wants to build a shed in the filled area. Which of the following statements most accurately describes the buyer's legal exposure and options under the Massachusetts Wetlands Protection Act?
Correct Answer
B) The buyer takes the property subject to the prior violation, and the Conservation Commission may require restoration of the filled area regardless of who performed the fill
Under MGL Chapter 131, Section 40, violations of the Wetlands Protection Act run with the land and are not extinguished by a change in ownership. A Conservation Commission has the authority to order restoration of illegally altered wetland resource areas regardless of whether the current owner was responsible for the violation. The buyer who purchases a property with an existing wetlands violation assumes the risk that the Conservation Commission may require remediation, including removal of the unpermitted fill and restoration of the wetland. This is why thorough due diligence, including review of Conservation Commission records, is critical before purchasing property near wetlands.
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