It is a truth universally acknowledged that property owners don’t like restrictions on how they may use their land.  It is a truth equally acknowledged, however, that state and local governments can enact laws and regulations — zoning bylaws, environmental rules, nuisance statutes — that limit what landowners can do with their land.  Just when a law intended to protect the public goes too far, and limits the private use of land too much, so that it becomes a “regulatory taking” requiring compensation under the U.S. and Massachusetts constitutions, is a question that has long bedeviled both the U.S. Supreme Court and our own Supreme Judicial Court (SJC).

The most recent response came in the SJC’s August 26, 2010 decision in Blair v. Dept. of Conservation and Recreation (pdf).  The Blair case concerned the Watershed Management Act, which prohibits alterations to land within 200 feet of the banks of waters within the watershed system that supplies drinking water.  The Blairs own a 2.87-acre parcel on Demond Pond in Rutland that contains a small cottage and a 60-foot sand beach on the pond.  They were barred from expanding the beach and constructing a retaining wall because that portion of their property is in the buffer zone.  The Blairs asserted that this restriction on their use of their property was a regulatory taking.

The SJC disagreed.  Relying on existing U.S. Supreme Court and SJC precedent, the court found that the statute on its face was not a taking, and did not constitute a physical taking of the property since it didn’t create an easement — it simply restricted use.

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 affected by the regulation.


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Plaintiffs bought a single-family residence and learned after closing that the property was subject to a recorded Order of Conditions (OOC) that required a substantial amount of work on an ocean-facing coastal bank.  The prior owners had not completed the required work.  The plaintiffs sued their lender’s attorney, who had certified that they were receiving good title to the property.  The Appeals Court held

DJB wetlands blog photoOn August 26, 2010 in Regan v. Conservation Commission of Falmouth (pdf), a divided Appeals Court panel held that the Falmouth Conservation Commission didn’t have authority to review revised development plans where the Commission had earlier failed to act within the 21 days required under the local wetlands by-law.  The permitting process in Regan was