No Right to Jury Trial for Regulatory Taking Claim: Pierce Atwood Partner Michelle O’Brien Successfully Argues Before Massachusetts Appeals Court in Case of First Impression

Resolving an issue not previously decided by Massachusetts appellate courts, the Massachusetts Appeals Court ruled that a landowner is not entitled to a jury trial on a regulatory taking claim.  The Court also concluded that the evidence presented at trial did not, as a matter of law, support a claim of regulatory taking. The Court reversed the judgment in favor of the landowner (awarding approximately $700,000) and directed the entry of judgment in favor of the Town of Falmouth and Falmouth Conservation Commission.  Janice Smyth v. Conservation Commission of Falmouth and the Town of Falmouth, 17-P-1189, slip op. (Massachusetts Appeals Court February 19, 2019).

The landowner inherited the unimproved parcel from her parents, who bought the land for $49,000 in 1975.  For more than 30 years neither the landowner nor her parents took any steps toward developing the parcel.  When the landowner submitted an application in 2012 to the Falmouth Conservation Commission to build a house on the property, wetlands regulations precluded development of the property without several variances.  After the Commission denied the application and a judge upheld that denial, the landowner asserted that the application of the town’s wetlands protection bylaw to the property constituted a regulatory taking, for which she was entitled to compensation under the Fifth Amendment of the United States Constitution and art. 10 of the Massachusetts Declaration of Rights.

Over the town’s objection, a superior court judge allowed the case to go to trial before a jury.  The jury found in favor of the landowner and awarded her $640,000, which represented the difference in the value of the land if buildable or unbuildable. The town appealed challenging, among other things, the judge’s decisions allowing a jury trial and denying the town’s motion for judgment notwithstanding the verdict.

Whether or not a landowner is entitled to a jury trial on a regulatory taking claim in Massachusetts had not been decided by an appellate court.  The analysis required a consideration of the right to a jury trial in 1780 when the Massachusetts constitution was adopted.  The landowner was only entitled to a jury trial if a regulatory taking claim was analogous to a common-law claim entitled to trial by jury in 1780.  The Appeals Court concluded that it was not; rather, it is a “whole new” cause of action, to which the right to a jury trial does not attach.

The Appeals Court did not end its review there.  The Court went on to examine whether the evidence at trial supported the landowner’s claim of regulatory taking.  Using the guideposts articulated by the U.S. Supreme Court in Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978) and adopted by the Massachusetts Supreme Judicial Court in Gove v. Zoning Bd. of Appeals of Chatham, 444 Mass. 754, 764 (2005), the Appeals Court concluded that the wetlands regulations at issue did not effect a regulatory taking of the landowner’s property.  Accordingly, the Appeals Court reversed the trial court judgment and directed the entry of judgment for the town and conservation commission.

Pierce Atwood partner Michelle N. O’Brien, whose practice includes environmental and land use permitting and related litigation, was the lead attorney on this matter. She was assisted by litigation attorney Nicholas P. Brown and Falmouth Associate Town Counsel Patricia A. Harris. For questions about this case, or any other real estate, environmental, or land use issue, please contact Michelle at 617.488.8146 or