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.
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.
The Blair decision is consistent with Massachusetts and federal regulatory takings law, and should (but probably won’t) be the last word on this issue. But for now, it seems clear enough that unless they make an entire parcel unuseable, most land use regulations will survive a challenge that they are regulatory takings.