Here's the latest in a case we've been following for a while, Smyth v. Conservation Comm'n of Falmouth, No. 19-223 (cert. petition filed Aug. 16, 2019).
The petition seeks review of a Massachusetts decision which held that a judge, not a jury, determines Penn Central takings questions, and also that the owner lost anyhow because, you know, Penn Central. The petition asks the Supreme Court to review these Questions Presented:
- Whether the loss of all developmental use of property and a 91.5% decline in its value is a sufficient “economic impact” to support a regulatory takings claim under Penn Central.
- Whether a person who acquires land in a developed area, prior to regulation, has a legitimate “expectation” of building and, if so, whether that interest can be defeated by a lack of investment in construction?
- Whether the Court should excise the “character” factor from Penn Central regulatory taking analysis.
We filed an amicus brief in support of the petition, arguing that for a regulatory takings "polestar" (the Supreme Court's words, not ours), Penn Central isn't doing a very good job of ensuring that trial courts decide takings cases. Other amici weighed in also:
The Commission responded with a Brief in Opposition, and Ms. Smyth filed a Reply Brief. Which means now we wait. The Court is scheduled to consider the case in its November 22, 2019 conference. Which means we should know soon thereafter whether the petition is granted or denied, or the case is "relisted."
Stay tuned, as always.
