When the Conservation Commission refused to permit the construction of a house on her residential lot in a Falmouth subdivision, Janice Smyth decided to take action and sought damages for a regulatory taking of her land under the U.S. Constitution and the Massachusetts Declaration of Rights.  She was successful initially, recovering damages of $640,000.  But, in Smyth v. Conservation Commission of Falmouth, the Appeals Court reversed the lower court’s decision.

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Yesterday the United States Supreme Court issued its long-awaited decision in Koontz v. St. Johns River Water Management District (pdf).  The court split 5-4 along the usual lines.  According to the dissent, this decision may have a significant impact on real estate developers and the boards and commissions that regulate them.A1029221.jpg

The plaintiff, Koontz, wanted to develop 3.7 acres of

In a decision issued this morning in Garrity v. Hingham Conservation Commission (pdf), the Supreme Judicial Court (SJC) ruled that the Wetlands Protection Act’s (WPA) 21-day deadlines for local conservation commissions to hold a public hearing on a notice of intent and to issue a decision after the public hearing are waivable by the applicant, provided the waiver is (1) intentional,

The Appeals Court’s recent decision in Conservation Commission of Brockton v. Department of Environmental Protection presents a relatively rare instance where local and state regulators disagree about the administration of a statute under which they both have responsibilities.  The statute is the Wetlands Protection Act (WPA).power plant  Under the WPA, a local conservation commission is the

In an “unpublished” decision in the case of Carney v. Town of Framingham (pdf) (further appellate review denied), a panel of the Appeals Court ruled that the statutory 60-day period for filing a certiorari appeal starts on the date the administrative agency takes its “last administrative action” – in this case a vote – not when the agency later reduces its decision to

The federal Clean Water Act (CWA) prohibits the discharge of pollutants from any point source into “navigable” waters of the United States without a Section 404 Permit issued by the Army Corps of Engineers (Corps).  Once this permit has been issued, the Environmental Protection Agency (USEPA) monitors permit compliance, sharing concurrent jurisdiction with the Corps.

DJB wetlands blog photoThere has

In a recent unpublished decision, an Appeals Court panel again strictly applied the 21-day deadline for conservation commission action under the state Wetlands Protection Act (WPA) (see related commentary here).  In Huie v. Conservation Commission of Scituate (pdf), the plaintiffs sought certiorari review of a Determination of Applicability (DOA) that the Scituate Conservation Commission issued with regard to their neighbor’s beachfront

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