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17-P-1189                                           Appeals Court

    JANICE SMYTH   vs.   CONSERVATION COMMISSION OF FALMOUTH &
                              another.1


                            No. 17-P-1189.

    Barnstable.        September 7, 2018. - February 19, 2019.

            Present:   Green, C.J., Milkey, & Singh, JJ.


Eminent Domain, Jury trial, What constitutes taking.
     Constitutional Law, Eminent domain, Taking of property,
     Trial by jury. Practice, Civil, Eminent domain proceeding,
     Jury trial, Judgment notwithstanding verdict.



     Civil action commenced in the Superior Court Department on
November 27, 2012.

     A motion to bifurcate the trial was considered by Cornelius
J. Moriarty, II, J.; the case was tried before him; and a motion
for judgment notwithstanding the verdict was considered by him.


     Michelle N. O'Brien (Nicholas P. Brown also present) for
the defendants.
     Brian J. Wall for the plaintiff.
     Edward J. DeWitt, for Association to Preserve Cape Cod,
Inc., amicus curiae, submitted a brief.
     Rebekah Lacey, for Massachusetts Association of
Conservation Commissions, amicus curiae, submitted a brief.




    1   Town of Falmouth.
                                                                      2


     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.2

     Background.   We summarize the facts appearing in the

record, which are for the most part undisputed.3    The plaintiff

owns an unimproved lot of land at 250 Alder Lane (property) in

Falmouth (town).   She inherited the property from her parents,




     2 We acknowledge the amicus briefs submitted by the
Association to Preserve Cape Cod, Inc. and the Massachusetts
Association of Conservation Commissions.

     3 Though the evidence presented by the parties conflicts in
certain respects, the divergence is not material to the issues
we address below and does not affect the accuracy of the summary
that follows.
                                                                   3


who purchased it for $49,000 in 1975.4   The property is located

within a residential subdivision known as "Wild Harbour

Estates," which contains approximately 174 lots.5    Though the

plaintiff's parents purchased the property with the intention of

someday building a residence to occupy in retirement, they took

no steps toward planning or building a home on it.    From 1975

through the end of 2005, the plaintiff's parents (and later the

plaintiff) paid property taxes and homeowners' association dues

on the property, and certain legal fees incident to transferring

title to the plaintiff, but otherwise incurred no development or

other costs or expenses associated with their ownership.

     In June, 2006, the plaintiff retained a consultant to

perform a soil evaluation test for a proposed septic system on

the property, and her husband (an architect) prepared two




     4 The plaintiff's parents also purchased, and the plaintiff
inherited, another nearby (but not contiguous) lot at 269 Alder
Lane in 1972. The record does not disclose the original
purchase price for 269 Alder Lane. The plaintiff sold that
unimproved lot in August, 2006, for $300,000. The defendants
press no contention that the two noncontiguous lots, purchased
at different times, should be considered a single economic unit
comprising the "denominator" for assessing the impact of the
regulations on the plaintiff's investment-backed expectations.
See Giovanella v. Conservation Comm'n of Ashland, 447 Mass. 720,
726-731 (2006).

     5 Under the town zoning bylaw, permitted uses in the zoning
district in which the property is located include, among other
things, one-family detached houses; parks; playgrounds; beaches;
watershed; agriculture and floriculture; and common piers,
floats, and docks.
                                                                    4


sketches for a potential house on the property.    In late 2007

and early 2008, the plaintiff engaged various professionals to

prepare formal plans for a house on the property, and to assist

in the preparation of applications for the required approvals.

In 2012, the plaintiff filed a notice of intent with the

defendant town conservation commission (commission), seeking

approval, under both the Wetlands Protection Act, G. L. c. 131,

§ 40, and the town wetlands protection bylaw (and related

regulations), of her plans to construct a residence on the

property.   As 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.    The

commission denied the plaintiff's variance requests, and the

plaintiff filed the present action.   In her amended complaint,

the plaintiff sought relief in the nature of certiorari, under

G. L. c. 249, § 4, and declaratory relief, in both instances

directed to the denial of her variance requests.     Count III of

the amended complaint asserted that the application of the

town's wetlands protection bylaw to the property effected a

regulatory taking, for which she was entitled to compensation

under the Fifth Amendment to the United States Constitution and

art. 10 of the Massachusetts Declaration of Rights.
                                                                    5


     A judge of the Superior Court denied the plaintiff's motion

for judgment on the pleadings, thereby upholding the

commission's decision and disposing of counts I and II of the

complaint; thereafter, a different judge denied the defendants'

motion for summary judgment on the plaintiff's regulatory taking

claim.   The defendants then moved to bifurcate the trial, so

that the question whether a regulatory taking had occurred would

be tried without a jury and only the question of damages (if a

taking had occurred) would be tried before a jury.   The judge

denied the defendants' motion, submitting both the question of

liability and of damages to the jury.   At trial, among other

evidence, the plaintiff presented the testimony of an appraiser

who determined that the property in 2014 had a value, if

buildable, of $700,000 and, if unbuildable, of $60,000.6   After

trial, a jury found that the wetlands protection bylaw effected

a regulatory taking of the plaintiff's property, and awarded

damages in the amount of $640,000.   The plaintiff filed a motion

for costs and for interest on the damages award pursuant to

G. L. c. 79, § 37 (governing eminent domain), or alternatively,

pursuant to G. L. c. 231, § 6H (governing damages generally).

In her subsequent reply to the defendant's response to her


     6 The appraiser also testified that the values of the
property in 2012, when the commission denied the plaintiff's
application, would be "very similar" to those determined in his
2014 appraisal.
                                                                       6


motion, the plaintiff argued that the interest should be

calculated pursuant to G. L. c. 231, § 6H, and not G. L. c. 79,

G. L. c. 37.   The trial judge awarded costs and directed that

interest be calculated pursuant to G. L. c. 79, § 37, citing

Lopes v. Peabody, 430 Mass. 305, 314 (314) (1999).     After

judgment entered, the defendants moved unsuccessfully for

judgment notwithstanding the verdict.     Both parties appealed.

     Discussion.   1.   Jury right.   Under Mass. R. Civ. P.

39 (a), as amended, 450 Mass. 1403 (2008), it is error to submit

an issue to a jury over objection, unless the party seeking the

jury determination has a right to a jury trial on the issue.7

The right to a jury trial is established by art. 15 of the

Massachusetts Declaration of Rights, which "has been construed

as preserving the right to trial by jury in actions for which a

right to trial by jury was recognized at the time the

Constitution of the Commonwealth was adopted in 1780."     New

Bedford Hous. Auth. v. Olan, 435 Mass. 364, 370 (2001).8       "If a

wholly new cause of action is created, a jury trial right does

not attach to that claim."    Department of Revenue v. Jarvenpaa,




     7 The rule is the same in the Federal courts.    See Fed. R.
Civ. P. 39(a).

     8 Essentially the same analysis is used to determine whether
the jury right attaches under the Seventh Amendment to the
United States Constitution. See Dalis v. Buyer Advertising,
Inc., 418 Mass. 220, 224 n.5 (1994).
                                                                     7


404 Mass. 177, 188 (1989).   A new cause of action nonetheless

may fall within the jury trial right if it is analogous to a

common-law claim entitled to trial by jury in 1780.    See

Stonehill College v. Massachusetts Comm'n Against

Discrimination, 441 Mass. 549, 561 n.16 (2004).

    The parties in the present case agree that a claim based on

an alleged regulatory taking or, as such a claim is sometimes

described, inverse condemnation, did not exist when the

Massachusetts Constitution was adopted, or for a considerable

time thereafter; it came into existence only when the Supreme

Court of the United States issued its decision in Pennsylvania

Coal Co. v. Mahon, 260 U.S. 393, 415-416 (1922).     The question

whether the plaintiff is entitled to a jury trial on her claim

of regulatory taking accordingly depends on whether it is

analogous to a common-law claim entitled to trial by jury in

1780, or whether it is a wholly new cause of action.

    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.     Among other

differences, a claim of regulatory taking -- at least of the

type framed by the plaintiff's amended complaint -- is markedly

different from an action for trespass, in that the plaintiff

raises no claim of physical invasion of her property.     Compare,
                                                                   8


e.g., Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987),

in which a requirement that the property owners maintain a

pathway for public access on their property effected a

regulatory taking requiring just compensation; Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982), in

which a physical invasion of private property authorized by the

government for installation of cable lines and related equipment

constituted a compensable taking, without regard to the public

purposes it may serve.

    The comparison of a claim of regulatory taking to common

law tort fails from another perspective.   As Justice Souter

observed in his dissenting opinion in Monterey v. Del Monte

Dunes at Monterey, Ltd., 526 U.S. 687, 747 (1999) (Del Monte

Dunes), unlike the question of liability in a common law tort

claim, the question of liability in a claim of regulatory taking

does not concern whether a wrongful act occurred; indeed, the

"very assumption that liability flows from wrongful or

unauthorized conduct is at odds with the modern view of acts

effecting inverse condemnation as being entirely lawful. . . .

Unlike damages to redress a wrong as understood in Gardner [v.

Newburgh, 2 Johns. Ch. 162 (N.Y. 1816) (Kent, Ch.)] or Bradshaw

[v. Rodgers, 20 Johns. 103 (N.Y. 1822)] (or even in a modern

tort action), a damages award in an inverse condemnation action
                                                                   9


orders payment of the 'just compensation' required by the

Constitution for payment of an obligation lawfully incurred."

     The essence of the plaintiff's claim of regulatory taking

is that enforcement of the regulatory scheme has unfairly

burdened her ability to use the property, in comparison to her

distinct investment-backed expectations.    Claims of regulatory

taking in circumstances such as those of the present case, where

the regulation at issue effects neither a permanent physical

invasion of property nor a complete deprivation of all

economically beneficial use, require a highly nuanced balancing

of multiple factors.    Under Penn Cent. Transp. Co. v. New York

City, 438 U.S. 104, 124 (1978) (Penn Central), the factors that

have "particular significance" include "[t]he economic impact of

the regulation" 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."   See Gove v. Zoning Bd. of Appeals of

Chatham, 444 Mass. 754, 764 (2005).    The 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.9


     9 In our view, the application of the multifactored Penn
Central test to the effect of a particular regulatory scheme on
a particular parcel of land is perhaps most similar to the
question whether acts are "unfair or deceptive" within the
                                                                    10


     For their part, the defendants suggest that a claim of

regulatory taking most closely resembles a direct eminent domain

proceeding.   We disagree.   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 712-713.10



meaning of G. L. c. 93A. In that context, the Supreme Judicial
Court noted that a "flexible set of guidelines" is used to
determine what is lawful or unlawful, and that, though "certain
consumer violations are perhaps rooted in common law claims,"
the terms "unfair and deceptive" are "sufficiently open-ended to
embrace causes of action for which there are no common law
analogues." Nei v. Burley, 388 Mass. 307, 313 (1983). Though
the ultimate remedy -- just compensation in the form of money
damages -- is legal rather than equitable in nature, "[a]n award
of monetary relief does not always implicate, a fortiori, an
art. 15 right to a jury trial." Stonehill College, 441 Mass. at
568.

     10Though both parties appear to assume in their respective
arguments that treating a claim of regulatory taking as
analogous to a direct condemnation action would result in a
conclusion that no jury right attaches, that conclusion is not
at all clear. Province Law 1756-1757, c. 18, enacted in 1756
and still in effect when the Massachusetts Constitution was
adopted in 1780, provided for the layout of highways and the
assessment of related damages and that landowners could appeal
to a jury "if the person complaining desires the same.
                                                                  11


    Finally, we reject the plaintiff's contention that Del

Monte Dunes itself established a right to a jury trial for a

claim of regulatory taking.   Del Monte Dunes was brought under

42 U.S.C. § 1983, because "the State of California did not

provide a compensatory remedy for temporary regulatory takings."

526 U.S. at 710.   Though the Court found a jury right for the

property owner in that case, it expressly observed that its

decision did "not address the jury's role in an ordinary inverse

condemnation suit."   Id. at 721.11

    We conclude that the question whether a particular

regulatory scheme has effected a regulatory taking, as distinct

from the question of what constitutes just compensation for the

taking -- or, in other words, the question of liability in a




    11 Pluralities in Del Monte Dunes adopted contrasting views
of the nature of an inverse condemnation claim and the extent to
which it might be analogized to a claim in tort or a direct
condemnation claim. Justice Kennedy, writing for himself, Chief
Justice Rehnquist, and Justices Stevens and Thomas, concluded
that the claim is sufficiently analogous to a common law tort
claim to warrant submission of the question of liability to a
jury, see 526 U.S. at 715, while Justice Souter, writing in
dissent for himself and Justices O'Connor, Ginsburg, and Breyer,
concluded that the claim is not analogous to a claim in tort but
instead is more appropriately analogized to a classic eminent
domain action, to which no jury right applies. See supra at
536-537 (Souter, J., dissenting). There is no majority holding
in Del Monte Dunes for the proposition that an ordinary
regulatory taking claim, outside the context of a claim under 42
U.S.C. § 1983 occasioned by the absence under the relevant State
law of a postdeprivation remedy, is analogous to a common law
tort claim.
                                                                    12


regulatory taking claim -- is a "wholly new" cause of action, to

which the right to a jury trial does not attach.    See Jarvenpaa,

401 Mass. at 188.12

     2.   Regulatory taking.   Our analysis does not end with our

conclusion that it was error to submit the question of liability

to the jury over the defendants' objection.   The question

remains whether to remand the case for a new trial without a

jury or whether, as the defendants contended in their motion for

judgment notwithstanding the verdict, the question of liability

can be determined as matter of law on the basis of the trial

record.   To that end, we consider whether the evidence at trial,


     12Our conclusion that no jury trial right attaches to the
question of liability in a regulatory taking claim is in accord
with the vast majority of other States that have considered the
question. See, e.g., Marshall v. Department of Water & Power,
219 Cal. App. 3d 1124, 1141 (1990); Scott v. County of Custer,
178 P.3d 1240, 1243 (Colo. App. 2007); Cumberland Farms, Inc. v.
Groton, 262 Conn. 45, 70 (2002); Department of Agric. & Consumer
Servs. v. Bonanno, 568 So. 2d 24, 28 (Fla. 1990); Covington v.
Jefferson County, 137 Idaho 777, 780 (2002); Hampton v.
Metropolitan Water Reclamation Dist., 2016 IL 119861, ¶ 23;
Zimmerman v. County Comm'rs of Wabaunsee County, 293 Kan. 332,
344 (2011); Alevizos v. Metropolitan Airports Comm'n of
Minneapolis & St. Paul, 298 Minn. 471, 484 (1974); 6224
Fontenelle Blvd., L.L.C. v. Metropolitan Utils. Dist., 22 Neb.
App. 872, 879 (2015); McCarran Int'l Airport v. Sisolak, 122
Nev. 645, 661 (2006); Wilkinson v. Board of Univ. & Sch. Lands,
2017 N.D. 231, ¶ 22; Harris v. Lincoln, 668 A.2d 321, 327 (R.I.
1995); WRB Ltd. Partnership v. County of Lexington, 369 S.C. 30,
32 (2006); Hallco Tex., Inc. v. McMullen County, 221 S.W.3d 50,
56 (Tex. 2006); E-L Enters., Inc. v. Milwaukee Metro. Sewerage
Dist., 2010 WI 58, ¶ 29 n.20. Contrast Leone v. County of Maui,
141 Haw. 68, 85 (2017); Iowa Dev. Co. v. Iowa State Highway
Comm’n, 255 Iowa 292, 297 (1963); Carter v. Oklahoma City, 862
P.2d 77, 81 (Okla. 1993).
                                                                     13


viewed in the light most favorable to the plaintiff, supports a

claim of regulatory taking.    See Boothby v. Texon, Inc., 414

Mass. 469, 470 (1993).13

     As we have discussed above, the question whether a

regulatory scheme effects a taking calls for application of a

balancing test, in which the "relevant 'guideposts' include: the

actual 'economic impact of the regulation' on the plaintiff; the

extent to which the regulation 'has interfered with' a

landowner's 'distinct investment-backed expectations'; and the

'character of the governmental action'" (citation omitted).

Gove, 444 Mass. at 764.    Against that background, we consider

the evidence elicited at trial.14

     a.   Economic impact.    Evaluation of the economic impact of

a regulation on the plaintiff begins with a comparison of the

value of the property with and without the regulation.    See

Giovanella v. Conservation Comm'n of Ashland, 447 Mass. 720, 734

(2006).   However, even quite significant reductions in value do


     13The defendants first raise their contention that no
regulatory taking occurred by claiming error in the denial of
their motion for summary judgment. However, the denial of a
motion for summary judgment is not reviewable on appeal after a
trial on the merits. Deerskin Trading Post, Inc. v. Spencer
Press, Inc., 398 Mass. 118, 126 (1986). We instead consider the
question through the lens of the defendants' posttrial motion
for judgment notwithstanding the verdict.

     14Though the parties sharply dispute whether a regulatory
taking occurred, our review of the record reveals that the facts
bearing on that question are largely not in dispute.
                                                                  14


not necessarily constitute a regulatory taking.     See, e.g.,

Appolo Fuels, Inc. v. United States, 381 F.3d 1338, 1348 (Fed.

Cir. 2004), cert. denied, 543 U.S. 1188 (2005) (finding no

taking after decreases in value of seventy-eight per cent and

ninety-two per cent on two combined lots).   Based on the

valuation determined by the plaintiff's appraiser, the

regulation reduced the value of the property from $700,000 (if

buildable) to $60,000 (if unbuildable).   While significant, we

observe that even as unbuildable the property's value is still

greater than the amount ($49,000) the plaintiff's parents paid

for the property when they purchased it.15

     As for other uses to which the property might be put, the

zoning bylaw allows it to be used, among other things, as a park

or a playground, and the plaintiff's appraiser testified at

trial that it would be attractive to abutting owners on either

side either for privacy or for expansion of their respective

properties.   See FIC Homes of Blackstone v. Conservation Comm'n

of Blackstone, 41 Mass. App. Ct. 681, 694 (1996).




     15The plaintiff presented no evidence at trial of the
present value of the price her parents paid for the property in
1975. While we recognize the likelihood that the present value
of the original purchase price may exceed the current value of
the lot in its unbuildable condition, as we have observed, even
a substantial reduction of the value of property can occur
without effecting a regulatory taking. See Giovanella, 447
Mass. at 734-735, and cases cited.
                                                                     15


       b.   Investment-backed expectations.   The fact that a

property owner acquired property by means of inheritance rather

than purchase does not by itself defeat a claim of interference

with investment-backed expectations.    See Gove, 444 Mass. at

766.    However, the record shows a distinct lack of any financial

investment toward development of the property, whether by the

plaintiff or her parents, at any time over more than thirty

years, including a substantial period within which it could have

been built upon.    The plaintiff (and her parents before her)

paid property taxes on the property, assessed in its undeveloped

state, and the plaintiff spent $600 on a percolation test in

2006 as she began to explore development possibilities.16       In

such circumstances, and considering that (as we have observed)

the property even as unbuildable is worth more now than its

purchase price, "it seems clear that any compensation would

constitute a 'windfall' for [the plaintiff]."       Gove, supra.

       c.   Character of the governmental action.   In evaluating

the character of the governmental action, "[t]he most

straightforward analysis . . . is whether the character of the




       As the plaintiff developed and prosecuted her variance
       16

applications in the proceedings that led to the present action,
she spent approximately $70,000 for professional services. We
note, however, that by definition those fees were spent at a
time when she knew her property could not be developed under
applicable regulations, but only with the relief of several
variances.
                                                                   16


governmental action is like a physical invasion."    Giovanella,

447 Mass. at 735.   "The Supreme Court also has considered

whether a regulation unfairly singles out the owner.    Other

courts have looked at whether the government regulation is

limited to mitigating harms or nuisances.    Such regulations

typically do not require compensation" (citation omitted).      Id.

     Here, the government's action was clearly not like a

physical invasion, and the plaintiff admits as much.    The

regulations at issue are of general applicability to all

property in the town that has wetland resources and, by their

terms, are designed to protect coastal and wetland resources

generally.   "Reasonable government action mitigating such harm,

at the very least when it does not involve a 'total' regulatory

taking or a physical invasion, typically does not require

compensation."   Gove, 444 Mass. at 767.

     Conclusion.    In sum, based on the undisputed facts in the

record, viewed in the light most favorable to the plaintiff, we

conclude that the regulations at issue in the present case did

not effect a regulatory taking of the property.17   The order




     17Our conclusion renders moot the plaintiff's cross appeal,
challenging the trial judge's conclusion that interest on the
damage award should accrue at the statutory rate applicable to
eminent domain awards, under G. L. c. 79, § 37, rather than to
damage awards more generally, under G. L. c. 231, § 6H. We note
that, though the plaintiff dismisses the discussion of the topic
in Lopes, 430 Mass. at 314, as dictum, it is clear from its
                                                                  17


denying the defendants' motion for judgment notwithstanding the

verdict is reversed.   The judgment is reversed, and a new

judgment shall enter for the defendants.

                                   So ordered.




opinion that the court intended to provide conclusive guidance
on the subject for application to future cases.
