Real Estate & Property Law

New Land Use Law Blog: Massachusetts Land Use Monitor

By Robert Thomas (inversecondemnation.com)

Boston law firm Rackemann, Sawyer & Brewster has started the Massachusetts Land Use Monitor, which focuses on "court decisions and other developments in land use and real estate law, legislation and policy" from the Bay State.

Bob Foster, my colleague in the ABA's State and Local Goverment Law section, is one of the authors and recently posted SJC ["Supreme Judicial Court," for us non-Mass lawyers] on Regulatory Takings: That Word Does Not Mean What You Think It Means, a post about the court's recent decision in Blair v. Dep't of Conservation (Aug. 26, 2010). That case involved the question of whether use restrctions prohibiting a property owner from constructing a retaining wall and expanding a beach were a taking. Bob writes:

The main issue was whether the statute effected a regulatory taking.  This hinged on whether the regulation as applied to the Blairs' property deprived them of all economically viable use of their parcel of land.  This question further hinges on how you define the "parcel."  The U.S. Supreme Court has said that under the 5th Amendment, the relevant parcel is the entire parcel, not just the portion of it that's affected by the regulation.

The Blairs made a new argument.  They noted that Article 10 of the Declaration of Rights of the Massachusetts Constitution, which also bars takings without compensation, says that "no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people" and that if it is taken, "he shall receive a reasonable compensation therefor."  The Blairs maintained that Article 10's reference to "no part" of the property meant that under the Massachusetts constitution, the relevant parcel is indeed the portion of the parcel affected by the regulation.

Perhaps recalling the classic move "The Princess Bride," the SJC said, in effect, "You keep using that word.  I do not think it means what you think it means."  The court noted that Article 10 was adopted some 150 years before the concept of the "regulatory taking" was first enunciated by the Supreme Court.  When Article 10 was adopted in the 18th century, takings were understood to mean the government's condemnation and taking title to property (with the inference that such a taking of a part of a parcel would, indeed, require compensation).  The court also observed that adopting the Blairs' position that the affected portion was the relevant parcel would mean that "almost every valid land use or zoning regulation could be considered a 'taking.'"  The SJC was not willing to go that far, and instead applied the multifactor balancing test for regulatory takings from the Penn Central case and found no regulatory taking.

We've added MLUB to our blogroll, and are looking forward to some interesting posts from them.

Full post as published by inversecondemnation on October 18, 2010 (boomark / email).