Rather than sum up the issue and the Massachusetts Appeals Court's** conclusion in Smyth v. Conservation Comm'n of Falmouth, No. 17-P-1189 (Feb. 19, 2019), here's the first part of the opinion:
GREEN, C.J. A land owner brought this action in the Superior Court, claiming that local land use regulation effected a taking of her property, requiring just compensation under the Fifth Amendment to the United States Constitution and art. 10 of the Massachusetts Declaration of Rights. This appeal presents a question of first impression in Massachusetts: whether the land owner is entitled to have her regulatory taking claim decided by a jury. We conclude that the jury right does not attach to such a claim, and that the judge erred in denying the defendants' motion to submit only the question of damages to a jury. We further conclude that the evidence presented at the trial did not, as matter of law, support a claim of regulatory taking. We accordingly reverse the judgment in the plaintiff's favor and direct that judgment enter for the defendants.
Slip op. at 2 (footnote omitted).
The facts leading to the regulatory takings claim are pretty straightforward: the plaintiff owned a vacant lot in a residential subdivision, and from 1975 to 2005, the plaintiff and her predecessor owners (she inherited it from her parents) did not take steps to develop it. But then she did, undertaking several of the things you usually do in order to get a property ready to develop: she hired land planning consultants, architects, and planners to craft plans and applications. She also informed the town conservation commission that she intended to build a home on the property, because "[a]s submitted, the plaintiff's plans required several variances from the wetlands protection bylaw, as they did not comply with its requirements covering coastal banks, salt marshes, or land subject to coastal storm flowage." Slip op. at 4.
When the commission denied the variance, she sued in a Massachusetts court for a regulatory taking, seeking compensation. She asked that a jury determine both liability and damages. The jury concluded that the application of the wetlands law was a taking, and awarded her $640,000.
The Appeals Court concluded that the property owner did not have a right to a jury trial under the Massachusetts Declaration of Rights because regulatory takings and inverse condemnation claims did not exist at the time the Massachusetts Constitution was adopted (1780), and regulatory takings claims cannot be analogized to tort claims.
Here are the opinion's major analytical points:
- Regulatory takings and inverse claims didn't exist in 1780.
- Only in 1922, when the U.S. Supreme Court ruled in Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922) that if a regulation went "too far" was the cause of action recognized.
- Thus, the issue is whether a takings claim can be analogized to any common law claim that was around back in the day.
- "We are not persuaded that an ordinary claim of a regulatory taking sufficiently resembles an action in tort to warrant a conclusion that the claim is analogous to such a claim for purposes of recognizing the right to a jury trial." Slip op. at 7.
- This isn't a physical invasion taking, so it is not like common law trespass.
- This is a Penn Central-type claim, and "[t]he claim itself, and the balancing test employed to evaluate it, find no apt comparison in actions recognized at common law in 1780; it is instead a 'wholly new' cause of action." Slip op. at 9 (footnote omitted).
- Citing the dissent in City of Monterey v. Del Monte Dunes at Monterey, Inc., 526 U.S. 687 (1999), the court concluded that takings, unlike tort, are not about whether the defendant did a wrongful act. Takings liability only attaches to lawful government conduct.
- The court rejected the owner's argument that the most obvious analogy to a regulatory takings claim is condemnation: "While both claims rest on the same constitutional guarantee against governmental taking of property
without just compensation, and both ultimately result in the same remedy -- just compensation -- a claim of regulatory taking involves a preliminary (albeit significant and complex) question whether a taking has occurred at all. It is that determination of liability, based on the multifactored Penn Central test we have discussed, that is entirely different in kind from any question undertaken in a traditional direct condemnation action. See, e.g., Del Monte Dunes, 526 U.S. at 712-713." Slip op. at 10.
And what of the majority opinion in Del Monte Dunes, which, last we remember, came down on the side of a right to jury trial? The court concluded that the result there was driven by it being a 42 U.S.C. § 1983 claim, and as the Court noted there, the decision did "not address the jury's role in an ordinary inverse condemnation suit."
Finally, the court held that a remand to retry the case without a jury was not needed because applying the Penn Central test, the takings claim failed as a matter of law:
1. Economic impact. There was not a significant-enough diminution of value ($700k to $60k) because the purchase price was lower ($49k). [Barista's note: huh?]. Plus, even with the restrictive regulations applied, the owner could still make use of the property as a park or playground, or it could be sold to neighbors "for privacy or for expansion of their respective properties." [Barista's note: again, the "investment use."]
2. Investment-backed expectations. The owner inherited the property. That alone "does not by itself defeat a claim," slip op. at 15, but here, the owner didn't invest much in the property except pay property taxes, and spend a few hundred on some soil testing. Any compensation "would constitute a windfall."
3. Character of the government action. No physical invasion. Generally-applicable environmental regulations that are sourced in harm mitigation. And you know what that means.
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** One more thing, about the photo of the John Adams courthouse in Boston. One of the only places I know where an intermediate appeals court is actually HIGHER than the Supreme Court. Here, the SJC is located on the second floor, the Appeals Court on the top.
Smyth v. Conservation Comm'n of Falmouth, No. 17-P-1189 (Mass. App. Feb. 19, 2019)
