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Smyth v. Conservation Commission of Falmouth

Appeals Court of Massachusetts, Barnstable

February 19, 2019

JANICE SMYTH
v.
CONSERVATION COMMISSION OF FALMOUTH & another.

          Heard: September 7, 2018. [1]

          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.

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

          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, 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 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.

         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 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. Plan, 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, 404 Mass. 177, 188 (1989). A new cause of action nonetheless may fall within the jury ...


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