The decision illustrates the formidable showing that any regulatory taking plaintiff must make to show that his or her property has been “taken” by a bylaw, ordinance, regulation or permit denial, so that he or she should be compensated by money damages. Incidentally, the Appeals Court ruled for the first time in Massachusetts that there is no right to a jury trial on a regulatory taking claim.

The property owner, now supported by the Pacific Legal Foundation, has filed a petition for further appellate review (FAR) by the Supreme Judicial Court, which has not yet acted on it.

The property owner had inherited an unimproved lot from her parents. She engaged various professionals and prepared a Notice of Intent (NOI) under the state Wetland Protection Act and the local Wetlands Bylaw. She requested from the Conservation Commission several variances from the provisions of the Bylaw, which the Commission denied, with respect to requirements for the Resource Areas known as coastal bank, salt marsh, and land subject to coastal storm flowage. (The Appeals Court opinion does not discuss whether the application complied with the Wetland Protection Act).

The Appeals Court ruled that claims of regulatory taking, where there is no permanent physical invasion and no complete deprivation of all economically beneficial use, require a “highly nuanced balancing of multiple factors.” The factors that have particular significance include the economic impact on the plaintiff, the extent to which the regulation has interfered with the property owner’s distinct investment-backed expectations, and the character of the governmental action.

The Appeals Court commented that the property could be used, among other things, as a park or a playground, and it would be attractive to the abutting owners on either side for privacy or expansion.

Applying the above factors, the Appeals Court ruled that, even though the value of the property if unbuildable ($60,000) was substantially less than if buildable ($700,000), the unbuildable amount was still more than the amount plaintiff’s parents paid for it ($49,000), so that the compensation would be a “windfall.”

The Court also noted a lack of any financial investment toward developing the property by the plaintiff’s parents or the plaintiff for many years.

Finally, the Court observed that there was no physical invasion of plaintiff’s property and the regulation at issue did not single out the plaintiff’s property but was uniformly applicable throughout the Town.

In summary, a regulatory taking claim requires proof that the law, regulation or action challenged causes complete deprivation of all economically beneficial use of the property (known as a per se taking) or, in the alternative, fails the highly nuanced balancing of multiple factors (known as the Penn Central test).

The Appeals Court ruled that there is no right to a jury trial on the merits of whether a regulatory taking occurred, meaning the judge not jury decides that issue, as regulatory taking was not recognized as a cause of action when the Constitution of the Commonwealth was adopted in 1780.

Note: On April 23, 2019, REBA’s Environmental Law Section hosted a luncheon on the case, for REBA members, featuring guest speakers Michelle N. O'Brien of Pierce Atwood LLP, special counsel for the Town of Falmouth, and Rebekah Lacey of Miyares and Harrington LLP, counsel for the amicus curiae Massachusetts Association of Conservation Commissions (MACC). Attorney McGregor presented on this topic.