• Miyares and Harrington, LLP

Appeals Court Sides with Conservation Commission in Takings Case

Conservation commissions can breathe a sigh of relief because the Massachusetts Appeals Court has overturned a jury verdict awarding compensation to the owner of a waterfront parcel who was denied a permit under the Falmouth Wetlands Bylaw.

In Smyth v. Conservation Commission of Falmouth, the Falmouth Conservation Commission had denied an Order of Conditions for a project to construct a residence and related infrastructure within wetlands resource areas protected by the Bylaw. After the denial was upheld in Superior Court, the owner brought a regulatory takings claim against the Commission and the Town of Falmouth.

A regulatory taking occurs when a government regulation “goes too far,” infringing so greatly on private property rights that it has the same effect as if the government had taken the property by eminent domain. In such a case, the government must provide just compensation to the property owner. Over Falmouth’s objection, the judge ordered that the case be tried before a jury, which found that the permit denial constituted a regulatory taking and awarded the plaintiff $640,000 plus interest.

Falmouth filed an appeal, arguing that the plaintiff had no right to a jury trial and the permit denial did not meet the test that case law establishes to determine when a regulatory taking has occurred. On behalf of the Massachusetts Association of Conservation Commissions, our own Rebekah Lacey filed an amicus curiae brief in support of the Town, arguing that application of reasonable regulations intended to prevent public harm from private use of land is not the type of government action that requires that an affected property owner be compensated. The brief noted that, if this kind of permit denial were held to be a taking, municipalities’ ability to prevent harm from flooding and coastal storms would be severely impeded.

The Court held that the case should not have gone to the jury, because a regulatory takings claim is not the type of action for which a right to trial by jury was recognized in 1780, when the Massachusetts Constitution was adopted, guaranteeing that right in certain types of cases. But rather than remand the case to Superior Court for a bench trial, the Appeals Court reviewed the trial record and concluded that, even if viewed in the light most favorable to the plaintiff, the evidence did not support a claim of regulatory taking. Among other things, the Court agreed with the position taken by Falmouth and MACC that government regulation of land use intended to mitigate harm typically does not constitute a taking. Thus, the Court ordered that judgment should issue in favor of the Town. This is a happy ending for municipalities, removing the specter of massive regulatory takings claims for common land use regulations.




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