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Court Rules Landowner Does Not Have Right to Jury Trial in Massachusetts Regulatory Taking Claim

Whether a plaintiff is entitled to have a Massachusetts real estate claim decided by a jury generally depends on the type of action and the circumstances of the case.  In a February 20, 2019 opinion, the Appeals Court of Massachusetts addressed an issue that had not been definitively settled in Massachusetts: whether a land owner is entitled to have a regulatory taking claim decided by a jury.

The plaintiff in the case owned an unimproved lot in a residential subdivision, which she had inherited from her parents, who purchased it in 1975.  In 2012, the plaintiff prepared plans to construct a home on her lot.  She filed a notice of intent with the town conservation commission, seeking approval under the Massachusetts Wetlands Protection Act and the town’s bylaws concerning wetlands protection.

The commission denied the plaintiff’s variance requests, concluding that her plans did not comply with the requirements of the laws.  The plaintiff then filed an action in the Superior Court, asserting that the town’s application of its wetlands protection bylaw was essentially a taking of her property, and as such, required compensation under the U.S. and Massachusetts constitutions.

The case was tried before a jury, and the question of whether a taking had occurred and the question of damages was submitted to the jury.  Ultimately, the jury found that the bylaw did effect a regulatory taking of the plaintiff’s property and awarded damages in the amount of $640,000.  On appeal, the town argued that it was reversible error to submit the issue of an alleged regulatory taking to the jury.

Under the Massachusetts Constitution, the right to a jury trial was preserved for actions that were recognized as having such a right at the time the constitution was adopted in 1780.  A new cause of action created after its adoption may still fall within the jury trial right if it is analogous to a common-law claim that existed in 1780.

The appeals court found that no such analogous claim existed with regard to a regulatory taking so as to warrant the right to a jury trial.  The court pointed to the fact that unlike a trespass action or eminent domain, there was neither a permanent physical invasion of the property, nor a complete deprivation of all economically beneficial use.

The court went on to hold that the wetlands protection bylaw did not effect a regulatory taking of the plaintiff’s property.  In making its determination, the court considered the actual economic impact of the regulation on the plaintiff, the extent to which the regulation interfered with the plaintiff’s investment-backed expectations, and the character of the governmental action.  Accordingly, the verdict was reversed and a judgment was entered for the town.

The Massachusetts property law attorneys at Pulgini & Norton can assist residential homeowners and buyers in achieving their goals.  From mortgages and home closings to building permits and land use issues, we handle a range of legal matters involving residential real estate.  Call our office at (781) 843-2200 or contact us online to schedule a free consultation with a skilled property lawyer at Pulgini & Norton.

More Blog Posts:

Massachusetts Lot Owners Face Legal Obstacles to Home Construction in Wetlands Area, Massachusetts Real Estate Lawyer Blog, published February 2, 2019

Massachusetts Property Owners Seeking Approval to Build House Encounter Frontage Issues, Massachusetts Real Estate Lawyer Blog, published August 21, 2017

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