Collins v. Historic Dist. Com'n of Carver

• Decision Date: 19 December 2008
• Docket Number: No. 07-P-1054.,07-P-1054.
• Citation: 73 Mass. App. Ct. 388,897 N.E.2d 1281
• Parties: Robert B. COLLINS & another<SMALL><SUP>1</SUP></SMALL> v. HISTORIC DISTRICT COMMISSION OF CARVER & another.<SMALL><SUP>2</SUP></SMALL>
• Court: Appeals Court of Massachusetts

897 N.E.2d 1281

73 Mass. App. Ct. 388

Robert B. COLLINS & another¹ v. HISTORIC DISTRICT COMMISSION

OF CARVER & another.²

No. 07-P-1054.

Appeals Court of Massachusetts, Plymouth.

Argued May 19, 2008.

Decided December 19, 2008.

Thomas P. Lane, Jr., Boston, for the defendants.

Richard L. Wainwright for the plaintiff.

Present: CYPHER, BROWN, & FECTEAU, JJ.

BROWN, J.

After a bench trial in the Superior Court, a judge found in favor of the plaintiffs, Robert B. Collins and Pamela Taylor Collins, on their claim that actions of the town of Carver (town) and its historic district commission, including certain acts by town police officers, considered in combination, constituted a taking of the plaintiffs' property without just compensation. The judge awarded $37,567.60 to the plaintiffs as compensation for the taking. The town now appeals.

Background. In 1979, as is memorialized by a recorded deed, Robert Collins and his then wife Luanne Collins purchased an eight and one-half acre parcel of vacant land (locus) located within the town. The purchase price was $2,000. The deed recited that the locus was "subject to the roadway known as Savery Avenue with the rights connected thereto" and "subject to taking for the relocation of Route 58." In May, 1989, Robert Collins conveyed the locus to himself and Pamela Taylor Collins, husband and wife, as tenants by the entirety.

a. Savery historic district. In 1983, by authority of G.L. c. 40C, the Historic Districts

Act,³ the town created the Savery historic district. Tracking the language of G.L. c. 40C, § 2, the town's historic district by-law was designed "to promote the educational, cultural, economic and general welfare of the public through the preservation and protection of the distinctive characteristics of buildings and places significant in the history of the Town of Carver or their architecture, and through the maintenance and improvement of settings for such buildings and places and the encouragement of design compatible therewith." The historic district commission (commission) has the authority (G.L. c. 40C, § 6) to pass upon the appropriateness of "exterior architectural features" open to view by the public from certain public places. G.L. c. 40C, § 6, as appearing in St.1971, c. 359, § 1. See Opinion of the Justices, 333 Mass. 773, 780-781, 128 N.E.2d 557 (1955); Dennis Hous. Corp. v. Zoning Bd. of Appeals of Dennis, 439 Mass. 71, 74-75, 785 N.E.2d 682 (2003); Sleeper v. Old King's Hy. Regional Historic Dist. Commn., 11 Mass.App.Ct. 571, 573, 417 N.E.2d 987 (1981).

The locus is situated entirely within the boundaries of the Savery Avenue historic district.⁴ As such, by the terms of the by-law and G.L. c. 40C, § 6, any building proposed to be built on the locus must be authorized (if at all) by the commission by the issuance of a certificate of appropriateness.

In August, 1991, Robert and Pamela Collins applied to the commission for permission to build a single-family home on lot 1. The commission denied their application. Robert Collins then commenced an action in Superior Court, pursuant to G.L. c. 40C, § 12A, contesting the commission's decision. After the filing of a motion for summary judgment, a Superior Court judge remanded the case to the commission for clarification of its decision. On remand, the commission held a series of public hearings, which led to an amended decision denying the Collinses' application. Among its other detailed reasons for so deciding, the commission found the proposed home site on lot 1 would be "highly visible" from both Savery Avenue and other public areas in the historic district.⁵ It is indisputable that the commission's amended decision was limited to a proposal submitted by the Collinses to build a single structure proposed to be situated on lot 1 of the locus.⁶

The parties then returned to the Superior Court, where a second judge denied the plaintiffs' motion for partial summary judgment. Accepting the commission's amended decision as legally tenable,⁷ under G.L. c. 40C, the motion judge determined there was a disputed issue of fact, namely, whether the proposed structure would "visually contaminate" the Savery Avenue district.

b. Eminent domain proceedings. While the action under G.L. c. 40C, § 12A, appealing from the commission's decision was

still pending, the town's board of selectmen on August 30, 1994, voted to adopt an order of intention to take the locus by eminent domain pursuant to G.L. c. 80A. That order was recorded with the Plymouth County registry of deeds. Thereafter, the town commenced suit in the Superior Court seeking an order declaring the parties' rights and obligations vis-à-vis the taking of the locus. A judge appointed three commissioners who were to be responsible for determining the value of the locus, in accord with the procedure mandated by c. 80A. The commissioners determined that the highest and best use of the locus was as four single-family house lots; the fair market value (as of the relevant time period—August, 1994) of the locus was determined to be $193,600. Subsequently, a Superior Court judge amended the report of the commissioners and awarded $205,000 to Robert and Pamela Collins for the eminent domain taking.⁸ Robert and Pamela Collins did not appeal from the resulting final judgment, entered on November 15, 1995.

c. Present dispute. Subsequently, on May 31, 2002, in their pending appeal in Superior Court under G.L. c. 40C, § 12A, Robert and Pamela Collins filed a first amended complaint alleging that the town (by its agents, employees, boards, commissions, and town meeting votes) had deprived them of all beneficial and economic value of their land between September, 1987, and November, 1995 (the latter being the date of the eminent domain taking).

The parties tried the liability phase of the case first.⁹ The parties stipulated to many of the material facts, and Robert Collins, appearing as the sole trial witness, testified as to the events in question. The trial judge ruled that the commission's refusal to issue a certificate of appropriateness, "considered in concert with actions of the town police officers"¹⁰ and comments voiced by the then chairman of the town's board of selectmen at a public hearing held by the commission,¹¹ "constructively amount[ed] to a permanent physical intrusion on the [Collinses'] land" and therefore constituted a taking.

On appeal, the defendants argue that the trial judge erred in deciding that there had been a taking of the plaintiffs' land. We agree and reverse the judgment entered in favor of the plaintiffs.

Discussion. The plaintiffs make their claim for a taking under the takings clause of the Fifth Amendment to the United States Constitution, which commands: "[N]or shall private property be taken for public use, without just compensation." An unlawful taking is often found when (a) government action has authorized a permanent physical occupation of private property, see Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) or (b) governmental regulatory action has gone "too far" so as to deprive an owner of "all economically beneficial or productive use" of the property, see Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014-1015, 1019, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). See also Yankee Atomic Elec. Co. v. Secretary of the Commonwealth, 403 Mass. 203, 209, 526 N.E.2d 1246 (1988); Steinbergh v. Cambridge, 413 Mass. 736, 741, 604 N.E.2d 1269 (1992), cert. denied, 508 U.S. 909, 113 S.Ct. 2338, 124 L.Ed.2d 249 (1993); Daddario v. Cape Cod Commn., 425 Mass. 411, 415-417, 681 N.E.2d 833, cert. denied, 522 U.S. 1036, 118 S.Ct. 644, 139 L.Ed.2d 621 (1997).

In our view, the present dispute does not implicate either of these scenarios. The plaintiffs have not alleged that there was a "physical invasion" by the town. It was error for the judge to rule that the town's actions "constructively amounted" to a permanent physical intrusion upon the locus. There was no legally adequate showing that the town authorized a permanent physical occupation of the kind envisioned in Loretto, supra.¹² "The government effects a physical taking only where it requires the landowner to submit to a physical occupation of his land" (emphasis original). Yee v. Escondido, 503 U.S. 519, 527, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992). The "element of required acquiescence is at the heart of the concept of occupation." Ibid., quoting from FCC v. Florida Power Corp., 480 U.S. 245, 252, 107 S.Ct. 1107, 94 L.Ed.2d 282 (1987). The town did not act in such a way as to require the owners to submit to a physical occupation of their land. The commission acted within its authority in refusing to issue a certificate of appropriateness.¹³ The commission reached its decision in accordance with the factors to be considered under the town by-law, as is evident by its express finding that "the proposed home site would severely diminish the quality of the natural setting which is the hallmark of Savery Avenue and the Savery Historic District" and "negatively impact the appearance, preservation and protection of the distinctive characteristics of this place of significance in the history of the Commonwealth of Massachusetts and the Town of Carver."

There was also no showing whatsoever that specific acts of the Carver police led to a permanent physical occupation of the plaintiffs' land. If anything, the dispute is answered by the plaintiffs' own evidence confirming that, though there was some degree of a temporary restriction, they were able to have a contractor gain access to the locus and drill a well on lot 1. Nor was any evidence tending to show that comments voiced by the chairman of the board of selectmen, at a public hearing of the commission, constituted an official act of the board or the town. Even if strident in form, the verbal comments were nothing more than a citizen's opinion offered in the context of a...