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17-P-1189 Appeals Court

JANICE SMYTH vs. CONSERVATION COMMISSION OF FALMOUTH & 

another.1

No. 17-P-1189.

Barnstable. September 7, 2018. - February 19, 2019.

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

Eminent Domain, Jury trial, What constitutes taking.

Constitutional Law, Eminent domain, Taking of property, 

Trial by jury. Practice, Civil, Eminent domain proceeding, 

Jury trial, Judgment notwithstanding verdict.

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.

 

1 Town of Falmouth.
2

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, 

 

2 We acknowledge the amicus briefs submitted by the 

Association to Preserve Cape Cod, Inc. and the Massachusetts 

Association of Conservation Commissions.

3 Though the evidence presented by the parties conflicts in 

certain respects, the divergence is not material to the issues 

we address below and does not affect the accuracy of the summary 

that follows.
3

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 

 

4 The plaintiff's parents also purchased, and the plaintiff 

inherited, another nearby (but not contiguous) lot at 269 Alder 

Lane in 1972. The record does not disclose the original 

purchase price for 269 Alder Lane. The plaintiff sold that 

unimproved lot in August, 2006, for $300,000. The defendants 

press no contention that the two noncontiguous lots, purchased 

at different times, should be considered a single economic unit 

comprising the "denominator" for assessing the impact of the 

regulations on the plaintiff's investment-backed expectations. 

See Giovanella v. Conservation Comm'n of Ashland, 447 Mass. 720, 

726-731 (2006).

5 Under the town zoning bylaw, permitted uses in the zoning 

district in which the property is located include, among other 

things, one-family detached houses; parks; playgrounds; beaches; 

watershed; agriculture and floriculture; and common piers, 

floats, and docks.
4

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.
5

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 

 

6 The appraiser also testified that the values of the 

property in 2012, when the commission denied the plaintiff's 

application, would be "very similar" to those determined in his 

2014 appraisal.
6

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. Olan, 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, 

 

7 The rule is the same in the Federal courts. See Fed. R. 

Civ. P. 39(a).

8 Essentially the same analysis is used to determine whether 

the jury right attaches under the Seventh Amendment to the 

United States Constitution. See Dalis v. Buyer Advertising, 

Inc., 418 Mass. 220, 224 n.5 (1994).
7

404 Mass. 177, 188 (1989). A new cause of action nonetheless 

may fall within the jury trial right if it is analogous to a 

common-law claim entitled to trial by jury in 1780. See 

Stonehill College v. Massachusetts Comm'n Against 

Discrimination, 441 Mass. 549, 561 n.16 (2004). 

The parties in the present case agree that a claim based on 

an alleged regulatory taking or, as such a claim is sometimes 

described, inverse condemnation, did not exist when the 

Massachusetts Constitution was adopted, or for a considerable 

time thereafter; it came into existence only when the Supreme 

Court of the United States issued its decision in Pennsylvania 

Coal Co. v. Mahon, 260 U.S. 393, 415-416 (1922). The question 

whether the plaintiff is entitled to a jury trial on her claim 

of regulatory taking accordingly depends on whether it is 

analogous to a common-law claim entitled to trial by jury in 

1780, or whether it is a wholly new cause of action.

We are not persuaded that an ordinary claim of a regulatory 

taking sufficiently resembles an action in tort to warrant a 

conclusion that the claim is analogous to such a claim for 

purposes of recognizing the right to a jury trial. Among other 

differences, a claim of regulatory taking -- at least of the 

type framed by the plaintiff's amended complaint -- is markedly 

different from an action for trespass, in that the plaintiff 

raises no claim of physical invasion of her property. Compare, 
8

e.g., Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987), 

in which a requirement that the property owners maintain a 

pathway for public access on their property effected a 

regulatory taking requiring just compensation; Loretto v. 

Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982), in 

which a physical invasion of private property authorized by the 

government for installation of cable lines and related equipment 

constituted a compensable taking, without regard to the public 

purposes it may serve.

The comparison of a claim of regulatory taking to common 

law tort fails from another perspective. As Justice Souter 

observed in his dissenting opinion in Monterey v. Del Monte 

Dunes at Monterey, Ltd., 526 U.S. 687, 747 (1999) (Del Monte 

Dunes), unlike the question of liability in a common law tort 

claim, the question of liability in a claim of regulatory taking 

does not concern whether a wrongful act occurred; indeed, the 

"very assumption that liability flows from wrongful or 

unauthorized conduct is at odds with the modern view of acts 

effecting inverse condemnation as being entirely lawful. . . . 

Unlike damages to redress a wrong as understood in Gardner [v. 

Newburgh, 2 Johns. Ch. 162 (N.Y. 1816) (Kent, Ch.)] or Bradshaw

[v. Rodgers, 20 Johns. 103 (N.Y. 1822)] (or even in a modern 

tort action), a damages award in an inverse condemnation action 
9

orders payment of the 'just compensation' required by the 

Constitution for payment of an obligation lawfully incurred." 

The essence of the plaintiff's claim of regulatory taking 

is that enforcement of the regulatory scheme has unfairly 

burdened her ability to use the property, in comparison to her 

distinct investment-backed expectations. Claims of regulatory 

taking in circumstances such as those of the present case, where 

the regulation at issue effects neither a permanent physical 

invasion of property nor a complete deprivation of all 

economically beneficial use, require a highly nuanced balancing 

of multiple factors. Under Penn Cent. Transp. Co. v. New York 

City, 438 U.S. 104, 124 (1978) (Penn Central), the factors that 

have "particular significance" include "[t]he economic impact of 

the regulation" on the plaintiff; "the extent to which the 

regulation has interfered with [the property owner's] distinct 

investment-backed expectations"; and "the character of the 

governmental action." See Gove v. Zoning Bd. of Appeals of 

Chatham, 444 Mass. 754, 764 (2005). The claim itself, and the 

balancing test employed to evaluate it, find no apt comparison 

in actions recognized at common law in 1780; it is instead a 

"wholly new" cause of action.9

 

9 In our view, the application of the multifactored Penn 

Central test to the effect of a particular regulatory scheme on 

a particular parcel of land is perhaps most similar to the 

question whether acts are "unfair or deceptive" within the 
10

For their part, the defendants suggest that a claim of 

regulatory taking most closely resembles a direct eminent domain 

proceeding. We disagree. While both claims rest on the same 

constitutional guarantee against governmental taking of property 

without just compensation, and both ultimately result in the 

same remedy -- just compensation -- a claim of regulatory taking 

involves a preliminary (albeit significant and complex) question 

whether a taking has occurred at all. It is that determination 

of liability, based on the multifactored Penn Central test we 

have discussed, that is entirely different in kind from any 

question undertaken in a traditional direct condemnation action. 

See, e.g., Del Monte Dunes, 526 U.S. at 712-713.10

 

meaning of G. L. c. 93A. In that context, the Supreme Judicial 

Court noted that a "flexible set of guidelines" is used to 

determine what is lawful or unlawful, and that, though "certain 

consumer violations are perhaps rooted in common law claims," 

the terms "unfair and deceptive" are "sufficiently open-ended to 

embrace causes of action for which there are no common law 

analogues." Nei v. Burley, 388 Mass. 307, 313 (1983). Though 

the ultimate remedy -- just compensation in the form of money 

damages -- is legal rather than equitable in nature, "[a]n award 

of monetary relief does not always implicate, a fortiori, an 

art. 15 right to a jury trial." Stonehill College, 441 Mass. at 

568.

10 Though both parties appear to assume in their respective 

arguments that treating a claim of regulatory taking as 

analogous to a direct condemnation action would result in a 

conclusion that no jury right attaches, that conclusion is not 

at all clear. Province Law 1756-1757, c. 18, enacted in 1756 

and still in effect when the Massachusetts Constitution was 

adopted in 1780, provided for the layout of highways and the 

assessment of related damages and that landowners could appeal 

to a jury "if the person complaining desires the same. 
11

Finally, we reject the plaintiff's contention that Del 

Monte Dunes itself established a right to a jury trial for a 

claim of regulatory taking. Del Monte Dunes was brought under 

42 U.S.C. § 1983, because "the State of California did not 

provide a compensatory remedy for temporary regulatory takings." 

526 U.S. at 710. Though the Court found a jury right for the 

property owner in that case, it expressly observed that its 

decision did "not address the jury's role in an ordinary inverse 

condemnation suit." Id. at 721.11

We conclude that the question whether a particular 

regulatory scheme has effected a regulatory taking, as distinct 

from the question of what constitutes just compensation for the 

taking -- or, in other words, the question of liability in a 

 

11 Pluralities in Del Monte Dunes adopted contrasting views 

of the nature of an inverse condemnation claim and the extent to 

which it might be analogized to a claim in tort or a direct 

condemnation claim. Justice Kennedy, writing for himself, Chief

Justice Rehnquist, and Justices Stevens and Thomas, concluded 

that the claim is sufficiently analogous to a common law tort 

claim to warrant submission of the question of liability to a 

jury, see 526 U.S. at 715, while Justice Souter, writing in 

dissent for himself and Justices O'Connor, Ginsburg, and Breyer, 

concluded that the claim is not analogous to a claim in tort but 

instead is more appropriately analogized to a classic eminent 

domain action, to which no jury right applies. See supra at 

536-537 (Souter, J., dissenting). There is no majority holding 

in Del Monte Dunes for the proposition that an ordinary 

regulatory taking claim, outside the context of a claim under 42 

U.S.C. § 1983 occasioned by the absence under the relevant State 

law of a postdeprivation remedy, is analogous to a common law 

tort claim.
12

regulatory taking claim -- is a "wholly new" cause of action, to 

which the right to a jury trial does not attach. See Jarvenpaa,

401 Mass. at 188.12

2. Regulatory taking. Our analysis does not end with our 

conclusion that it was error to submit the question of liability 

to the jury over the defendants' objection. The question 

remains whether to remand the case for a new trial without a 

jury or whether, as the defendants contended in their motion for 

judgment notwithstanding the verdict, the question of liability 

can be determined as matter of law on the basis of the trial 

record. To that end, we consider whether the evidence at trial, 

 

12 Our conclusion that no jury trial right attaches to the 

question of liability in a regulatory taking claim is in accord 

with the vast majority of other States that have considered the 

question. See, e.g., Marshall v. Department of Water & Power, 

219 Cal. App. 3d 1124, 1141 (1990); Scott v. County of Custer, 

178 P.3d 1240, 1243 (Colo. App. 2007); Cumberland Farms, Inc. v. 

Groton, 262 Conn. 45, 70 (2002); Department of Agric. & Consumer 

Servs. v. Bonanno, 568 So. 2d 24, 28 (Fla. 1990); Covington v. 

Jefferson County, 137 Idaho 777, 780 (2002); Hampton v. 

Metropolitan Water Reclamation Dist., 2016 IL 119861, ¶ 23; 

Zimmerman v. County Comm'rs of Wabaunsee County, 293 Kan. 332, 

344 (2011); Alevizos v. Metropolitan Airports Comm'n of 

Minneapolis & St. Paul, 298 Minn. 471, 484 (1974); 6224 

Fontenelle Blvd., L.L.C. v. Metropolitan Utils. Dist., 22 Neb. 

App. 872, 879 (2015); McCarran Int'l Airport v. Sisolak, 122 

Nev. 645, 661 (2006); Wilkinson v. Board of Univ. & Sch. Lands, 

2017 N.D. 231, ¶ 22; Harris v. Lincoln, 668 A.2d 321, 327 (R.I. 

1995); WRB Ltd. Partnership v. County of Lexington, 369 S.C. 30, 

32 (2006); Hallco Tex., Inc. v. McMullen County, 221 S.W.3d 50, 

56 (Tex. 2006); E-L Enters., Inc. v. Milwaukee Metro. Sewerage 

Dist., 2010 WI 58, ¶ 29 n.20. Contrast Leone v. County of Maui, 

141 Haw. 68, 85 (2017); Iowa Dev. Co. v. Iowa State Highway 

Comm’n, 255 Iowa 292, 297 (1963); Carter v. Oklahoma City, 862 

P.2d 77, 81 (Okla. 1993). 
13

viewed in the light most favorable to the plaintiff, supports a 

claim of regulatory taking. See Boothby v. Texon, Inc., 414 

Mass. 469, 470 (1993).13

As we have discussed above, the question whether a 

regulatory scheme effects a taking calls for application of a 

balancing test, in which the "relevant 'guideposts' include: the 

actual 'economic impact of the regulation' on the plaintiff; the 

extent to which the regulation 'has interfered with' a 

landowner's 'distinct investment-backed expectations'; and the 

'character of the governmental action'" (citation omitted). 

Gove, 444 Mass. at 764. Against that background, we consider 

the evidence elicited at trial.14

a. Economic impact. Evaluation of the economic impact of 

a regulation on the plaintiff begins with a comparison of the 

value of the property with and without the regulation. See 

Giovanella v. Conservation Comm'n of Ashland, 447 Mass. 720, 734 

(2006). However, even quite significant reductions in value do 

 

13 The defendants first raise their contention that no 

regulatory taking occurred by claiming error in the denial of 

their motion for summary judgment. However, the denial of a 

motion for summary judgment is not reviewable on appeal after a 

trial on the merits. Deerskin Trading Post, Inc. v. Spencer 

Press, Inc., 398 Mass. 118, 126 (1986). We instead consider the 

question through the lens of the defendants' posttrial motion 

for judgment notwithstanding the verdict.

14 Though the parties sharply dispute whether a regulatory 

taking occurred, our review of the record reveals that the facts 

bearing on that question are largely not in dispute.
14

not necessarily constitute a regulatory taking. See, e.g., 

Appolo Fuels, Inc. v. United States, 381 F.3d 1338, 1348 (Fed. 

Cir. 2004), cert. denied, 543 U.S. 1188 (2005) (finding no 

taking after decreases in value of seventy-eight per cent and 

ninety-two per cent on two combined lots). Based on the 

valuation determined by the plaintiff's appraiser, the 

regulation reduced the value of the property from $700,000 (if 

buildable) to $60,000 (if unbuildable). While significant, we 

observe that even as unbuildable the property's value is still 

greater than the amount ($49,000) the plaintiff's parents paid 

for the property when they purchased it.15

As for other uses to which the property might be put, the 

zoning bylaw allows it to be used, among other things, as a park 

or a playground, and the plaintiff's appraiser testified at 

trial that it would be attractive to abutting owners on either 

side either for privacy or for expansion of their respective 

properties. See FIC Homes of Blackstone v. Conservation Comm'n

of Blackstone, 41 Mass. App. Ct. 681, 694 (1996).

 

15 The plaintiff presented no evidence at trial of the 

present value of the price her parents paid for the property in 

1975. While we recognize the likelihood that the present value 

of the original purchase price may exceed the current value of 

the lot in its unbuildable condition, as we have observed, even 

a substantial reduction of the value of property can occur 

without effecting a regulatory taking. See Giovanella, 447 

Mass. at 734-735, and cases cited.
15

b. Investment-backed expectations. The fact that a 

property owner acquired property by means of inheritance rather 

than purchase does not by itself defeat a claim of interference 

with investment-backed expectations. See Gove, 444 Mass. at 

766. However, the record shows a distinct lack of any financial 

investment toward development of the property, whether by the 

plaintiff or her parents, at any time over more than thirty 

years, including a substantial period within which it could have 

been built upon. The plaintiff (and her parents before her) 

paid property taxes on the property, assessed in its undeveloped 

state, and the plaintiff spent $600 on a percolation test in 

2006 as she began to explore development possibilities.16 In 

such circumstances, and considering that (as we have observed) 

the property even as unbuildable is worth more now than its 

purchase price, "it seems clear that any compensation would 

constitute a 'windfall' for [the plaintiff]." Gove, supra.

c. Character of the governmental action. In evaluating 

the character of the governmental action, "[t]he most 

straightforward analysis . . . is whether the character of the 

 

16 As the plaintiff developed and prosecuted her variance 

applications in the proceedings that led to the present action, 

she spent approximately $70,000 for professional services. We 

note, however, that by definition those fees were spent at a 

time when she knew her property could not be developed under 

applicable regulations, but only with the relief of several 

variances.
16

governmental action is like a physical invasion." Giovanella,

447 Mass. at 735. "The Supreme Court also has considered 

whether a regulation unfairly singles out the owner. Other 

courts have looked at whether the government regulation is 

limited to mitigating harms or nuisances. Such regulations 

typically do not require compensation" (citation omitted). Id. 

Here, the government's action was clearly not like a 

physical invasion, and the plaintiff admits as much. The 

regulations at issue are of general applicability to all 

property in the town that has wetland resources and, by their 

terms, are designed to protect coastal and wetland resources 

generally. "Reasonable government action mitigating such harm, 

at the very least when it does not involve a 'total' regulatory 

taking or a physical invasion, typically does not require 

compensation." Gove, 444 Mass. at 767.

Conclusion. In sum, based on the undisputed facts in the 

record, viewed in the light most favorable to the plaintiff, we 

conclude that the regulations at issue in the present case did 

not effect a regulatory taking of the property.17 The order 

 

17 Our conclusion renders moot the plaintiff's cross appeal, 

challenging the trial judge's conclusion that interest on the 

damage award should accrue at the statutory rate applicable to 

eminent domain awards, under G. L. c. 79, § 37, rather than to 

damage awards more generally, under G. L. c. 231, § 6H. We note 

that, though the plaintiff dismisses the discussion of the topic 

in Lopes, 430 Mass. at 314, as dictum, it is clear from its 
17

denying the defendants' motion for judgment notwithstanding the 

verdict is reversed. The judgment is reversed, and a new 

judgment shall enter for the defendants.

So ordered.

 

opinion that the court intended to provide conclusive guidance 

on the subject for application to future cases.